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https://www.courtlistener.com/api/rest/v3/opinions/1319225/ | 221 S.C. 243 (1952)
70 S.E.2d 238
GIBBS
v.
ATLANTIC COAST LINE R. CO., ET AL.
16608
Supreme Court of South Carolina.
March 28, 1952.
*244 Messrs. Hagood, Rivers & Young, of Charleston, for Appellants.
*245 Messrs. A.R. McGowan and G.M. Howe, Jr., of Charleston, for Respondent.
March 28, 1952.
OXNER, Justice.
This action was brought by Samuel Gibbs against the Atlantic Coast Line Railroad Company and D.T. Smith, the conductor in charge of the train, to recover actual and punitive damages sustained by Gibbs when he was struck by a boxcar at the end of a train being pushed along certain tracks in Charleston County known as the Ashley River Extension. The trial resulted in a verdict in favor of Gibbs for $5,000.00 actual damages against the Railroad Company and Smith, and $2,500.00 punitive damages against the Railroad Company alone. The Court below set aside that portion of the verdict relating to punitive damages but refused a *246 motion for a new trial as to actual damages. From the judgment entered thereon, the Railroad Company and Smith have appealed. The principal questions for determination, timely raised by motions for nonsuit and directed verdict, are whether there was any evidence of actionable negligence on the part of appellants and, if so, whether respondent was guilty of contributory negligence or recklessness as a matter of law. Appellants also raise the further question that the Court erred in not setting aside the entire verdict upon the ground that it was inherently vicious.
We shall first determine whether the evidence was sufficient to warrant submission of the case to the jury.
The Ashley River Extension tracks of the Atlantic Coast Line Railroad Company run approximately north and south. Adjacent thereto on the east are the tracks of the Southern Railroad. Thirty or forty feet farther east and paralleling the railroad tracks above mentioned is a paved highway known as King Street Extension. There is a heavily traveled path running from said highway, in a westerly direction, across the railroad tracks to a Negro section known as Silver Hill. The evidence shows that this path has been used by the public, particularly those going to Silver Hill, for a period of more than twenty years. There are about thirty-five or forty homes in this settlement. Several of the houses and a church located therein are close to the tracks of the Atlantic Coast Line Railroad.
On April 23, 1948, about 8:00 p. m., respondent, a deaf and dumb Negro about 55 years of age, was struck by the forward car of a train, consisting of an engine and six cars, which was being pushed in a southerly direction. His left leg was badly mangled and had to be amputated below the knee. There is an irreconcilable conflict in the evidence as to the circumstances leading up to the accident. That offered by respondent, which included two eye-witnesses, may be briefly summarized as follows:
*247 On the night in question respondent, carrying a suitcase, was proceeding to the residence of his sister, where he made his home. In doing so, he walked from King Street Extension along the path heretofore mentioned, crossed the track of the Southern Railroad and as he approached the track of the Coast Line, he observed an unlighted boxcar standing about two feet north of the path. As he proceeded to cross the Coast Line track along this path, the boxcar was suddenly backed without warning and struck him. One witness testified that the train had been standing four or five minutes before respondent reached the track. It is conceded that it was a dark night and that there were no street lights. Both eyewitnesses testified that there were no lights or markers of any kind at the rear of the train, which was suddenly backed without warning of any kind. These witnesses said that no member of the train crew was on the forward car and that none was seen until shortly after the accident. (It may not be amiss to further state that respondent offered testimony to the effect that the bell was not rung nor the whistle blown before the train was started, but this could have had no causal connection with the accident since respondent was deaf).
The testimony of the train crew presents an entirely different situation. They deny that the train stopped at or near the path heretofore mentioned and assert that there was no occasion to stop at this point. They stated that the train stopped to put off a car at the Ashepoo Crossing, about half a mile north of where the accident occurred, and that the next switching to be done was at the plant of the Ford's Redi-Mix Concrete Company, a considerable distance south of the scene of the accident. The principal witnesses for the railroad company were the appellant conductor and a switchman whose testimony was substantially as follows: They were standing on ladders at the end of the forward car, each with a lighted lantern in his hand, which was clearly visible. As the train was proceeding south, with the bell ringing, at a speed of five or six miles an hour, they observed a man *248 (who later proved to be respondent) with a suitcase in his right hand, walking in a northerly direction between the tracks of the Coast Line and Southern Railway. When they first saw him, he was about twenty feet away but when the forward car had reached a point about ten feet from respondent, he suddenly turned directly west and started across the track. The conductor then hollered and the switchman immediately signalled the engineer to stop, but before this could be done respondent collided with the west side of the forward car. These two witnesses said respondent was not walking along the path and was found after the accident lying ten or fifteen feet south of this point. (All of respondent's testimony, including an officer who came up immediately after the accident, was to the effect that respondent was lying in or near the path). The testimony of the train crew was further to the effect that if the train had been standing where respondent's witnesses said it was, it would have been impossible to have thrown the switch which was located near where the path crossed the track.
We are not at liberty to pass upon the veracity of the witnesses and determine this case according to what we think is the weight of the evidence. In determining whether there was error in denying appellants' motions for a nonsuit and a directed verdict we must accept the version of the occurrence given by respondent's witnesses. Under their testimony he was not a trespasser. He was walking along a well defined path and it may be reasonably inferred from the evidence that it was used by the public in crossing the railroad tracks with the knowledge and acquiescence of appellant Railroad Company. Under these circumstances, it was the duty of the Company to observe ordinary care to avoid injuring anyone walking along this path. Jones v. C. & W.C. Railway Co., 61 S.C. 556, 39 S.E. 758; Sanders v. Southern Railway Co., 90 S.C. 331, 73 S.E. 356; Carter v. Seaboard Air Line Railroad Co., 114 S.C. 517, 104 S.E. 186; Smith v. Southern Railway Co., 207 S.C. 179, 35 S.E. (2d) 225; Jones v. *249 Atlanta-Charlotte Air Line Railway Co., 218 S.C. 537, 63 S.E. (2d) 476.
Viewing the testimony in the light most favorable to respondent, we have this situation: A train, consisting of six cars, was standing on the tracks with the forward car about two feet north of the path respondent was using. There were no lights or markers at the end of the train. As respondent proceeded to cross the tracks, this train was suddenly pushed back without signals or warning of any kind. Certainly this warranted an inference of negligence. Even as to a moving train, it was held in Smith v. Southern Railway Co., supra, 207 S.C. 179, 35 S.E. 228, that the jury could infer negligence where there was evidence tending to show that cars were being backed on a dark night without lights being displayed on the forward car, and without signals or warnings of any kind being given. It was there further stated: "The duty of a railroad company to warn travelers of the approach of a backing train at night has been extended under certain circumstances to places other than regular railroad crossings."
We think it is equally clear that it cannot be said that respondent was guilty of negligence as a matter of law in undertaking to cross the railroad tracks along this path. This question was properly submitted to the jury.
The remaining exceptions relate to the verdict. As heretofore stated, the jury rendered a verdict against the conductor and the railroad company for actual damages in the sum of $5,000.00 and against the railroad company alone for punitive damages in the sum of $2,500.00. The trial Judge properly held that a verdict for punitive damages against the Railroad Company alone could not stand and accordingly set aside this portion of the verdict, but left undisturbed the verdict for actual damages against both defendants. It is claimed that the fact that the jury found no punitive damages against the individual defendant evidenced a complete disregard of the instructions given by *250 the trial Judge and showed prejudice on the part of the jury. Under these circumstances, it is argued that the verdict "itself is inherently vicious," which should have been set aside entirely. We find no basis for the claim that the verdict is inherently vicious. The practice followed by the trial Judge is fully sustained by our decisions. Massey v. Hines, 117 S.C. 1, 108 S.E. 181; Laird v. A.C.L. Railway, 136 S.C. 34, 134 S.E. 220; Currie v. Davis, 130 S.C. 408, 126 S.E. 119. Also see 3 Am. Jur., Appeal and Error, § 1176; Annotation 135 A.L.R., page 1192.
All exceptions are overruled and the judgment below affirmed.
BAKER, C.J., and FISHBURNE, STUKES and TAYLOR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319232/ | 78 S.E.2d 745 (1953)
238 N.C. 632
RIDER et al.
v.
LENOIR COUNTY et al.
No. 377.
Supreme Court of North Carolina.
November 25, 1953.
*746 R. S. Langley, Matt H. Allen, and John G. Dawson, Kinston, for plaintiff appellees.
Chas. B. Aycock, R. A. Whitaker, and Thos. J. White, Kinston, for defendant appellants.
BARNHILL, Justice.
Plaintiffs first filed an injunction bond in the sum of $200. Thereafter, in compliance with an order of the court, they filed bond in the sum of $15,000, with the National Surety Corporation as surety. This constituted a novation and served to discharge the original bond. So then, the first question posed for decision is this: Are the plaintiffs and their surety, the National Surety Corporation, liable in any *747 amount to defendants by reason of the wrongful issuance of the temporary restraining order herein? We must answer in the negative.
It is true the plaintiffs, in seeking to prevent the execution of the proposed plan for providing additional hospital facilities, attacked the bond election and we held that the election was in all respects valid. Even so, the real objective of the action was to prevent the expenditure of $138,713.80 of county funds in furtherance of the hospital facilities project, in addition to the $465,000 the voters had been advised would be expended. We reversed the order vacating the restraining order. Thus the restraining order is still in full force and effect.
In this connection, the defendants have either overlooked or misconstrued the language used in the closing paragraph of our former opinion. We gave defendants an opportunity to elect to "(1) consider the feasibility of conforming the proposed project to the limits authorized by the voters, or (2) submit another or other proposals to the voters." We directed, however, that "Meanwhile, the temporary restraining order will be deemed and treated as in force and effect to the extent of staying disbursement of funds in furtherance of the proposed hospital enlargement project and preventing further action on the part of the defendants in furtherance of the construction project, except in conformity with this opinion." Thus we, in effect, made permanent the order restraining the defendants from any further action in furtherance of the original construction project. Rider v. Lenoir County, 236 N.C. 620, 73 S.E.2d 913. In no sense was the original restraining order wrongful or unlawful. A correct interpretation of our opinion discloses that we so held. Therefore, defendants are not now in position to insist that they are entitled to recover any amount of plaintiffs and their surety upon their injunction bond.
Plaintiffs make the somewhat novel contention that they should receive credit for the saving in the cost of construction arising out of the delay occasioned by this lawsuit. They say that during this delay economic conditions changed to the extent the defendant county was able to effect a saving of $133,286.20 when it relet the contract in accord with the opinion of this Court. They also assertand the court below found as a factthat the plaintiffs, by this action, have "restored" to the general fund $138,713.80, thus effecting a total saving to the taxpayers of the county of a total of $272,000. They do not seek to participate in this saving. They only request that they be allowed therefrom a sufficient amount to pay the attorneys employed by them.
The court below made an allowance of expense money, as requested by plaintiffs, to which the defendants excepted. Their assignment of error based on this exception raises this second question for decision: Are the plaintiffs entitled to an allowance out of the $138,713.80, the defendants proposed to expend on the original project, as expense money to be used to pay counsel employed to prosecute this action? This question must likewise be answered in the negative.
Counsel fees in favor of the successful litigant to be taxed as a part of the costs were abolished in this State in 1879. Midgett v. Vann, 158 N.C. 128, 73 S.E. 801; Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578. Our present statute, G.S. § 6-21, by implication, authorizes attorney fees in certain enumerated actions to be taxed as a part of the costs, to be paid out of the fund which is the subject matter of the action. Cases such as this are not included.
Where the proceeding is essentially in rem and the services inure to the benefit of those who have an interest in the property and the property is recovered or preserved by the action or proceeding, expense money is oftentimes allowed. Likewise, such allowance is made in certain equity cases prosecuted in behalf of a class, when the successful prosecution of the cause inures to the benefit of the members of the class. Mordecai v. Devereux, 74 N.C. 673; Lightner v. Boone, 222 N.C. 421, 23 S.E.2d 313; Annotation 49 A.L.R. 1149, 107 A.L.R. 751.
*748 But we are interested here only in the rule which applies when a taxpayer successfully prosecutes an action on behalf of all the taxpayers of a subordinate governmental unit to protect, preserve, or recover a fund belonging to the governmental unit. This subject is fully discussed by Johnson, J., speaking for the Court, in Horner v. Chamber of Commerce, 236 N.C. 96, 72 S.E.2d 21. For us now to review and reiterate what is there said would be a work of supererogation. We need only call attention to the rule there stated which prevails in this State in respect to the allowance of expense money to cover the fees of counsel in an action instituted by a taxpayer or group of taxpayers for the benefit of all the taxpayers within the bonds of the municipality.
The rule as there stated comes to this: When, in an action instituted by a taxpayer to recover a fund which has been unlawfully or wrongfully expended by a municipality, it is made to appear that (1) the fund was in fact wrongfully expended, (2) the governing board of the municipality refused, on demand, to institute an action to recover the same, (3) as a result of which the taxpayer instituted his action to recover for the benefit of the citizens of the municipality, and (4) obtained judgment (5) which has been paid, in whole or in part, and the fund is thus restored to the public treasury, the court may allow plaintiff expense money to the extent of reasonable attorney fees, to be paid out of the fund so recovered.
In that case, Horner v. Chamber of Commerce, supra, this Court expressly limited the application of the rule to cases in which all these factsespecially the fact the money had been actually restoredare made to appear. Fox v. Lantrip, 169 Ky. 759, 185 S.W. 136; Wachovia Bank & Trust Co. v. Schneider, supra.
The facts stated in the petition for an allowance of expense money in this case fail to meet the test prescribed by that rule. The defendant had the fund here involved in its general fund account when the bond order was adopted; the fund has never been expended; the proposed expenditure was for a public purpose; and, finally, no sum has been restored to the general fund of the county; nor has the public treasury been enriched by this action. Instead, the particular fund here involved has remained in the general fund throughout this litigation.
That the county, due to the delay caused by this action, has been able to let a contract which effects a saving of more than $100,000 is incidental. That was not the subject matter of the action, and the saving thus effected cannot form the basis for the allowance of expense money.
In this connection it is well to note that we did not sustain the order restraining the defendants from expending $138,713.80 on the proposed project on the ground the county was without authority to expend surplus nontax county funds in furtherance of the plan to provide additional hospital facilities. It was sustained for the reasons such expenditure (1) would be contrary to the representations contained in the bond order limiting the amount of county funds to be expended for that purpose; (2) would materially vary the project after the issuance of bonds in accord with the bond resolution had been authorized by the voters; and (3) would constitute a breach of faith with the electorate of the county. Rider v. Lenoir County, supra.
In our opinion the costs of the action should be taxed against the defendant county. To this extent the exception to the taxation of the costs is without merit and is overruled.
The other exceptive assignments of error are without sufficient merit to require discussion.
The court below erred in allowing plaintiffs expense money to the extent of reasonable attorney fees. Likewise, the costs should have been taxed against the defendant county. The judgment entered must be so modified. In all other respects said judgment is affirmed.
Modified and affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319233/ | 193 Va. 677 (1952)
J. A. SILVEY, trading as SILVEY MOTOR SALES
v.
J. C. JOHNSTON.
Record No. 3902.
Supreme Court of Virginia.
April 21, 1952.
William R. L. Craft, Jr. and I. Leake Wornom, Jr., for the plaintiff in error.
J. Livingstone Dillow, for the defendant in error.
Present, All the Justices.
1. Plaintiff, an automobile dealer, brought an action to recover for damages allegedly caused by breach of warranty of title to an automobile traded to him by defendant. In a written instrument, defendant guaranteed clear title to the automobile, but when plaintiff offered it for resale, it was discovered that the motor number on the engine and that on the certificate of title were not the same. Due to that discrepancy, plaintiff was unable to sell the automobile until several months later. There was no express statement in evidence that defendant knew that plaintiff purchased the automobile for resale, yet defendant was aware that plaintiff was engaged in the business of buying and selling automobiles and that was sufficient to impute to him knowledge that the car was acquired for resale.
2. While the jury is the judge of the weight of the testimony and the credibility of the witnesses, it cannot arbitrarily disregard the uncontradicted evidence of unimpeached witnesses which is not inherently incredible and not inconsistent with other facts and circumstances appearing in the record, even though such witnesses are interested in the results of the litigation.
3. It is the imperative function of the Supreme Court of Appeals to set aside the verdict of a jury, even though approved by the trial court, when the evidence does not warrant the finding by the jury.
4. Under the facts of headnote 1, defendant was not exonerated from liability on his warranty because he did not know of the defect in the title.
5. Under the facts of headnote 1, defendant obligated himself to give good title to the automobile but that was not done. The evidence was conclusive that some damage ensued as a direct result of his breach of warranty, yet the jury found for defendant. The verdict denying and recovery was without evidence to support it and that verdict and the judgment entered thereon had to be vacated and judgment for plaintiff on the issue of liability.
6. Under the facts of headnote 1, the evidence was inconclusive as to the quantum of damages. Whether or not plaintiff exercised his best efforts to secure the most advantageous price that he could obtain when he sold the car and thus minimize the damage, was not conclusively shown. There was also evidence tending to establish additional items of damage and expense alleged to have been incurred. Just what was the true over-all damage justly chargeable to defendant because of his breach of warranty was a question to be determined by the jury.
7. Under the facts of headnote 1, in attempting to prove part of the damages sustained, plaintiff offered in evidence a copy of the contract of sale under which the automobile was finally sold. The trial court rejected it but let him testify as to what was the sale price and to whom the car was sold. The trial court erred in refusing the contract for it was admissible as tending to prove the then value of the automobile and to establish the amount of damage caused by the delay incident to obtaining a good title.
8. Under the facts of headnote 1, plaintiff attempted to prove the value of the automobile at the time he acquired it by use of the National Automobile Dealers Association Guide Book. The trial court sustained an objection to the admissibility of the evidence to which plaintiff assigned error. But plaintiff did not adequately or sufficiently develop the evidence, and as the record stood upon appeal, the specific objection and exception was not properly presented and could not be considered.
9. Under the facts of headnote 1, plaintiff offered an instruction to the effect that proof of absolute certainty as to the amount of loss or damage was not essential if the loss was established and if the circumstances proved were such as to permit intelligent estimate. Though the phraseology used could have been improved, plaintiff was entitled upon the facts and circumstances in evidence to an instruction embodying the principle stated and the trial court erred in refusing it.
Error to a judgment of the Circuit Court of Giles county. Hon. Vincent L. Sexton, Jr., judge presiding. The opinion states the case.
MILLER
MILLER, J., delivered the opinion of the court.
This is an action brought by J. A. Silvey, trading as Silvey Motor Sales, herein called plaintiff, against J. C. Johnston, herein called defendant for damages allegedly caused by breach of warranty of title to an automobile sold or traded to Silvey by Johnston.
Upon issue put to the jury, plaintiff was cast and judgment entered accordingly. We granted writ of error.
Plaintiff is engaged in buying and selling automobiles, and for that purpose operates a place of business under the name of Silvey Motor Sales, Blacksburg, Virginia.
By written contract dated July 11, 1949, he sold to defendant a Chevrolet automobile. The consideration stated in the contract that plaintiff was to receive "$650.00 and a trade-in of" an automobile owned by defendant described as "one 1947 4 dr. Plymouth, Motor number P15-291796." This motor number as written in the contract, was obtained from the engine of the car.
The undertaking of each party is thus stated in the instrument:
"Mr. Johnston guarantees SILVEY MOTOR SALES a clear title to the Plymouth mentioned above. SILVEY MOTOR SALES guarantees a clear title to the above Chevrolet as soon as the title has been received from the Division of Motor Vehicles, which will be sent to Mr. Johnston."
By legislative enactment, in Virginia, title to a motor vehicle, except as otherwise provided, is required to be registered with the Division of Motor Vehicles before it may be operated "upon any highway in this state." Code 1950, section 46-42. Upon registration a certificate evidencing title is issued to the owner. Transfer of a marketable title to the vehicle can only be accomplished by compliance with the formalities imposed, one of which is that the motor number be recited upon the certificate of title. Code 1950, sections 46-79, 46-84, 46-85. Thomas Mullins, 153 Va. 383, 149 S.E. 494. That necessarily contemplates and requires that the motor number on the engine correspond with that appearing on the certificate of title.
Uncontradicted evidence establishes the following facts:
The $650 was paid by Johnston to Silvey and each delivered his automobile to the other. Good title to the Chevrolet was promptly given by plaintiff to defendant. On July 19, 1949, *680 plaintiff took the Plymouth automobile to Danville, Va., to a used car sale and there secured an offer of $1430 for it, which he accepted. However, when he there undertook to deliver the car to the purchaser, the sale could not be consummated. It was then discovered for the first time that the motor number obtained from the engine and appearing in the written contract did not correspond with the engine number upon the certificate of title that had been furnished plaintiff by defendant. Two or three digits on the engine and recited in the contract did not correspond with those stated in the certificate of title as registered with the Division of Motor Vehicles. Due to this discrepancy and defect in the title, the Danville purchaser refused to accept the car, and it had to be brought back to Blacksburg. The offer of the would-be purchaser and other evidence tended to establish that the value of the car was $1430 to $1445 when sold to plaintiff by defendant.
There is no express statement in evidence that defendant knew that plaintiff purchased the Plymouth for resale, yet defendant was aware that plaintiff was engaged in the business of buying and selling automobiles and that is sufficient to impute to him knowledge that the car was acquired for resale. 46 Am. Jur., Sales, sec. 699, p. 824.
Upon discovery of the difference between the digits of the actual engine number and those under which the car was registered, plaintiff contacted defendant and demanded that he clear up the defect in the title so that the car might be disposed of. Defendant did not know of the defect when he sold the Plymouth and though he communicated with the party from whom he purchased the car concerning the trouble, the evidence discloses that no real effort was made by him to secure a marketable title for plaintiff. He finally declined to concern himself further and dropped the matter.
When convinced that defendant would be nothing toward securing him a good title, plaintiff undertook to correct the defect himself and obtain a proper certificate. He employed an attorney to assist him, and after several months their efforts were successful and a good title was obtained early in March, 1950. The car was then sold on March 14, 1950, by plaintiff for $975, which sum he testified was its then value.
Both parties to the contract were aware of the fact that the legislative requirements had to be observed to furnish good title to their respective automobiles. That they so understood and *681 intended is stated with sufficient clarity and certainty in their contract. About that there can be no cavil, for on cross-examination defendant said: -- "We agreed to furnish each other a clear title."
Plaintiff's chief assignments of error are that the evidence conclusively establishes his right to recover and that the court should have sustained his motion to submit to the jury the issue of damages only, but having refused to do so, the court should have set aside the verdict, entered judgment for him on the issue of liability and awarded a new trial to determine the quantum of damages.
He also complains of the court's, (a) refusal to admit certain exhibits in evidence which were offered on the issue of damages, and (b) refusal to give Instruction No. 3 pertaining to damages.
Defendant obligated himself to give good title to the automobile but that was not done. The evidence is conclusive that some damage ensued as a direct result of his breach of warranty, yet the jury found for defendant.
[2, 3] "* * * where testimony is uncontradicted there must be something to justify the jury in discrediting it." Messer Commonwealth, 145 Va. 838, 845, 133 S.E. 761.
"The uncontradicted evidence of a witness cannot be disregarded by either the jury or by the court if it is not inherently improbable." Worsham Commonwealth, 184 Va. 192, 194, 34 S.E.(2d) 234.
"The power and duty of this court to set aside a verdict and judgment unsupported by evidence is now too well established to merit discussion."
"While the jury is the judge of the weight of the testimony and the credibility of the witnesses, it cannot arbitrarily disregard the uncontradicted evidence of unimpeached witnesses which is not inherently incredible and not inconsistent with other facts and circumstances appearing in the record, even though such witnesses are interested in the results of the litigation." Epperson & Carter DeJarnette, 164 Va. 482, 485, 180 S.E. 412.
"* * * this court has always exercised the power and the duty, when not hampered by statute, of setting aside a judgment that was plainly wrong or without evidence to support it." Norfolk, etc., R. Co. Thayer Co., 137 Va. 294, 298, 119 S.E. 107. *682
"While we are not unmindful of the weight which attaches to the verdict of a jury when the verdict has been approved by the trial court, it is the imperative function of this court to set aside the verdict of the jury, even though approved by the trial court, when the evidence does not warrant the finding of the jury." Garrison Burns, 178 Va. 1, 8, 16 S.E.(2d) 306.
Nor is defendant exonerated from liability on his warranty because he did not know of the defect in the title.
The verdict denying any recovery is without evidence to support it. That verdict and the judgment entered thereon must be vacated and judgment entered here for plaintiff on the issue of liability.
The evidence is, however, inconclusive as to the quantum of damages. Whether or not plaintiff exercised his best efforts to secure the most advantageous price that he could obtain when he sold the car and thus minimize the damage, is not conclusively shown. There is also evidence tending to establish additional items of damage and expense alleged to have been incurred. That these items of damage, expense and cost were sustained, and if so, whether or not certain of the sums asserted are reasonable, is not conclusively proved. Just what was and is the true over-all damage justly chargeable to defendant because of his breach of warranty was and is a question to be determined by a jury.
In attempting to prove part of the damages claimed to have been sustained, plaintiff testified to an offer of $1430 he received for the car in Danville in July, 1949. He then undertook to prove what it sold for on March 14, 1950, and so to establish its worth as of that date and thus show the damage that he had sustained by the delay in obtaining good title, he offered in evidence a copy of the contract of sale of March 14, 1950. The court rejected this contract but did let him testify as to what was the sale price and to whom the car was sold on that date. When this instrument of March 14, 1950, was offered in evidence and rejected, it was not actually filed as an exhibit by plaintiff and made a part of the record as it should have been. Rules of Court 5:1, | 3(c). It is not now before us for inspection. Yet it is sufficiently described for us to know that it represents what the car was actually sold for by a dealer in the ordinary course of business. It was admissible as tending to prove the then value of the automobile and to establish the amount of damage caused by the delay incident to obtaining a good title. Richmond *683 Leather Mfg. Co. Fawcett, 130 Va. 484, 107 S.E. 800; Gorby Bridgeman, 83 W.Va. 727, 99 S.E. 88.
To prove the market value of the Plymouth automobile as of July 11, 1949, plaintiff was asked the following question and gave the partial answer as quoted below:
"Q. Mr. Silvey, I had asked you the fair market value of that Plymouth automobile that you acquired from Johnston on July 11, 1949."
"A. The only thing we go by -- all the dealers establish figures from the N.A.D.A. Book put out by the --"
Before the answer had been concluded, defendant objected "to the use of N.A.D.A. Book" to establish the value of the car. The objection was sustained and plaintiff excepted.
No explanation is made of what the letters N.A.D.A. stand for but we take it that they represent an abbreviation of "National Automobile Dealers Association" Guide Book. No effort, however, was made to file this book as an exhibit, nor was any evidence offered to show that it is used by dealers as a standard guide for automobile prices. It does not appear from the record what plaintiff's full answer would have been, nor is it anywhere indicated what was the value given in the N.A.D.A. Guide Book for this make and model car.
Plaintiff did not adequately or sufficiently develop the evidence, the rejection of which he has attempted to assign as error. As the record now stands, this specific objection and exception has not been properly presented and cannot be considered by us.
Plaintiff complains of the refusal of the following instruction (No. 3) dealing with the character and measure of proof necessary to establish damages.
"The Court instructs the Jury that proof of absolute certainty as to the amount of loss or damages is not essential when the existence of loss is established, and the facts and circumstances proven are such as to permit of intelligent and probable estimate of the amount of damages or loss sustained."
Though the phraseology used could be improved, plaintiff was entitled upon the facts and circumstances in evidence to an instruction embodying the principle stated. Wyckoff Pipe & Creosoting Co. Saunders, 175 Va. 512, 518, 9 S.E.(2d) 318; Greenland Develop. Corp. Allied Heating Products Co., 184 Va. 588, 600, 35 S.E.(2d) 801, 164 A.L.R. 1312; E. I. duPont *684 deNemours & Co. v. Universal Moulded Products Corp., 191 Va. 525, 572, 62 S.E.(2d) 233.
If the evidence in regard to damages is the same at the next trial, the following instruction, or one of similar import, should be given if asked for:
"The court tells you that in this case the plaintiff has established his right to recover, -- that is, he has proved that the defendant failed to perform his agreement. Therefore, if the facts and circumstances in evidence are such as to permit an intelligent and reasonably correct estimate of the amount of damages or loss incurred as a direct consequence of defendant's failure to furnish a good title, then the requirements of proof in that respect have been met, and you should find in favor of plaintiff for all items of damage and loss, if any, thus shown to have been sustained."
The judgment is reversed and final judgment will be entered here in favor of plaintiff on the issue of liability and the case remanded for a new trial, to be limited to the question of the amount of damages sustained by plaintiff.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261060/ | 428 A.2d 1074 (1981)
Ronald R.S. PICERNE et al.
v.
Edward D. DiPRETE et al.
No. 79-329-Appeal.
Supreme Court of Rhode Island.
April 28, 1981.
Letts, Quinn & Licht, Frank Licht, Richard A. Licht, Robert N. Huseby, Sr., Providence, for plaintiffs.
Hinckley, Allen, Salisbury & Parsons, Michael P. DeFanti, Providence, for defendants.
OPINION
BEVILACQUA, Chief Justice.
The defendants appeal from a judgment of the Superior Court ordering them to *1075 expunge from the tax rolls of the city of Cranston certain assessments made on the plaintiffs' property and permanently enjoining the defendants from collecting any taxes based on these reassessments.
The plaintiffs to this action are a group of Cranston taxpayers who own apartment buildings containing six or more units.[1] The defendants are various Cranston public officials including Mayor Edward DiPrete, Tax Assessor Armando DiVincenzo, and Tax Collector and Treasurer Anthony Ruscetta.[2]
The following facts were adduced at trial. Sometime in February 1979, defendant Mayor DiPrete discussed tax revenues with the City Director of Administration, Thomas Powers. At approximately the same time, DiPrete learned from Assessor DiVincenzo that normal yearly adjustments in the tax base would yield about $1,300,000. These projected increases came from new construction, additions, and improvements not exempt by law. Thereafter, on March 9, 1979, the mayor sent the following memo to Director Powers:
"According to figures given to me by Tax Assessor Armando DiVincenzo, the city can expect an increase in additional tax revenue of $1,306,055.76 on the 1979 tax role [sic].
"After reflection, I feel it is not only possible, but absolutely essential that additional tax revenue be raised through more thorough and updated assessments of value. Possible sources include updating of rural land values to reflect sewers and/or water, more thorough assessment of tangible personal property, updated values on certain business streets to reflect changes in circumstances, and a service charge tax on owners of apartment houses. I am sure that other possibilities also exist including assessments on overlooked building improvements.
"Therefore, I direct that you chair a committee to be composed of the tax assessor, the city treasurer, and the finance director, in addition to yourself to identify those assessments necessary to raise an additional $1,200,000.00 in addition to the $1,306,055.76 cited by the tax assessor.
"I ask that you give me an interim report by Wednesday, March 14, 1979."[3]
As a result of the memo a committee was formed and began to meet on a regular basis, with the mayor attending most of these meetings. During this period, the committee started to examine property assessment records, or "cards," of nonframe apartment buildings with six or more units.[4] The mayor and committee members decided the values assessed on many of these apartments, as revealed by the cards, were too low. Under the Cranston assessment system, the assessor assigns a value grade ranging from C- to A+ to each apartment building. Using a price schedule, the assessor assigns to each grade a replacement cost per square foot with gradual increases in price from C- to A+. Other factors affecting value include the number of stories in the building plumbing facilities, and other improvements.
In concluding that the valuation of these apartments was incorrect, the committee considered tangible and intangible evidence. The committee found some discrepancies revealed by the cards themselves. For example, a two-story brick building graded A and built in 1961 was given a replacement cost of $38 per square foot while a second two-story brick building graded A and built in 1967 was assigned a replacement cost of *1076 $21.50 per square foot. The committee was not content, however, with bringing merely similar buildings of similar grade into line by reference to the existing price schedule. The committee, without conducting any physical inspections, looked at the cards and decided that some apartments "deserved" a higher grade than that appearing on the card.
Having regraded a number of apartments upward, the committee next reformulated the pricing schedule for grades B- through A+ only. The result was that approximately forty apartment buildings or complexes were revalued in a span of about a week with an accompanying increase in the tax base of over half a million dollars.
It should be pointed out that the last time a general revaluation was conducted in Cranston was in 1954 when the city revalued all property. None of the defendants has asserted that any attempt was made in March 1979 to revalue all property. As Mr. DiVincenzo admitted, "I neither had the time nor the staff to do it." Nor does anyone seriously contend that revaluation of plaintiffs' property was the beginning of a planned citywide revaluation program.
According to the mayor, the city discovered the "mistakes" in the apartment valuation scheme during a review of the cards to examine the possibility of attaching an apartment service charge. Mayor DiPrete claimed he was only asking the committee to rectify past inequities that had turned up after the committee reviewed the cards. The mayor stated his primary goal was equality of valuation and that increasing revenue was only a secondary aim; yet, he also testified that when he wrote the March 9 memo, he knew of no inequities in assessed values of any apartments.
No one disputes the fact that of almost 16,000 single-family residences in Cranston, the assessor revalued none or even seriously considered revaluing any of these dwellings during the committee meetings in March. The same conclusion holds true for almost 3,000 two- to six-family residences, 798 commercial establishments, and more than 7,000 parcels of vacant land. Indeed, the final figures reveal that only 114 out of more than 28,000 parcels were revalued and that all of these parcels are owned by members of one of the three groups of plaintiffs that originally initiated this litigation.[5]
Among his findings of fact, the trial justice found that Assessor DiVincenzo had considered the assessments for 1979 complete when he finished his task sometime before December 31, 1978. The court stated that
"[i]mplicit in this finding is the fact that the ratable property subject to taxation on December 31, 1978 which included the property of these plaintiffs was assessed at its full and fair cash value or at a uniform percentage thereof."[6]
The court further found that defendant had made a conscious effort to avoid a general revaluation and instead had targeted the smallest number of parcels that could yield the needed revenue. The court rejected defendants' assertion that their purpose was to equalize assessments and determined that defendants' purpose was to satisfy a $1,600,000 revenue gap.
Ultimately, the trial justice found that the March 1979 revaluations were arbitrary and discriminatory and resulted in disproportionate assessments, and that such assessments violated the fair-distribution clause of art. 1, sec. 2 of the Rhode Island Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.[7] The issue we confront in this appeal is whether defendants' revaluation of plaintiffs' properties *1077 was intentionally selective and made in a discriminatory manner.
Before deciding this issue, we deem it important to note that other jurisdictions have dealt with taxpayer suits concerning selective assessments. These cases are characterized by the singling out of one taxpayer or a small group of taxpayers for revaluation or for first-time assessment when similar property is not assessed for any tax liability. Such cases are distinguishable from those cases in which revaluation takes place over several years pursuant to a well-organized multiyear plan. See, e.g., Hamilton v. Adkins, 250 Ala. 557, 560, 566, 35 So. 2d 183, 185, 191, cert. denied, 335 U.S. 861, 69 S. Ct. 133, 93 L. Ed. 407 (1948); Rogan v. County Commissioners of Calvert County, 194 Md. 299, 310, 71 A.2d 47, 51 (1950). Because revaluations must be carried out in an acceptable and orderly manner, selective assessments are generally held unlawful as discriminatory against the complaining taxpayer. E. g., County of Maricopa v. North Central Development Co., 115 Ariz. 540, 543-44, 566 P.2d 688, 691-92 (Ct.App. 1977); Ernest W. Hahn, Inc. v. County Assessors for Bernalillo County, 92 N.M. 609, 612, 592 P.2d 965, 968 (1978); Penn Phillips Lands, Inc. v. State Tax Commission, 247 Or. 380, 385, 430 P.2d 349, 351-52 (1967). An illegal assessment has also been found to exist where a different method of appraising land values was applied to a small number of properties within a county. Sparks v. McCluskey, 84 Ariz. 283, 285-86, 327 P.2d 295, 296-97 (1958).
In Ernest W. Hahn, Inc. v. County Assessors for Bernalillo County, 92 N.M. 609, 592 P.2d 965 (1978), the taxpayers' property was revalued each year for four successive years, whereas over 90 percent of other land in the county was not revalued. The Supreme Court of New Mexico stated that the county had discriminated against the taxpayers because they "were singled out for selective enforcement" and because "the * * * reappraisals * * * were not conducted as part of a definite and logical plan for the revaluation of all properties within Bernalillo County * * *." Id. at 612, 592 P.2d at 968. The Hahn court continued by stating that a taxpayer may not complain about a legally proportionate assessment unless the assessment was made as part of a discriminatory plan or involved fraudulent action. Id. at 613, 592 P.2d at 969.
In Penn Phillips Lands, Inc. v. State Tax Commission, 247 Or. 380, 430 P.2d 349 (1967), the defendant tax commission attempted to justify its selective reassessment of the plaintiff's properties by protesting that the plaintiff's sales campaign had made its property "unique." The Oregon court rejected this argument and observed that "[a]ll adjacent private lands have remained assessed at pre-1957 values and the complaining taxpayer is the only one whose property has been subjected to special treatment. It is this kind of discrimination which runs afoul [of] the federal constitution * * *." Id. at 385, 430 P.2d at 351-52.
Recently, while reviewing examples of illegal assessments, we noted that a knowing or intentional assessment that is made discriminatorily would be unlawful. CIC Newport Associates v. Stein, R.I., 403 A.2d 658, 663 (1979). Therefore, in order for us to grant the relief prayed for by plaintiffs, they must show that defendants intentionally sifted them out for reassessment. The defendants, however, relying on Merlino v. Tax Assessors for the Town of North Providence, 114 R.I. 630, 337 A.2d 796 (1975), contend that plaintiffs' burden extends beyond a showing of mere discrimination. The defendants argue that plaintiffs must demonstrate that "a substantial amount of property (in Cranston) was taxed at a lower percentage of fair market value than their property." We disagree and find that defendants' reliance on the Merlino case is misplaced.
In Merlino, the plaintiffs-taxpayers alleged that the defendants had illegally revalued their property under an assessment plan making revaluation mandatory when property was sold or when a change occurred in the physical nature of the property. The value of the plaintiffs' newly purchased home had been promptly reappraised at the time of purchase by the defendants. *1078 The Merlino court sustained the assessment because the taxpayers had failed to prove that other property in North Providence had been assessed at a percentage of fair market value less than that of the plaintiffs' property, notwithstanding the defendants' failure to revalue neighboring property.
In the instant case, however, plaintiffs have presented a different challenge. The plaintiffs argue that the assessments are void because they were intentionally made with a discriminatory motive.[8] Although the trial justice concluded, as a matter of fact and law, that the revaluations resulted in "disproportionate taxation to the plaintiffs," he also remarked that plaintiffs pressed two major points. The first of these was that "their [defendants'] assessments were selected and therefore arbitrary and illegal * * *."[9] Thus, the precise issues involved in Merlino and the instant case are clearly distinguishable. The taxpayers' burden articulated in Merlino is apposite only to the issue of whether the tax assessor has disproportionately assessed the taxpayers pursuant to an otherwise valid revaluation scheme.
In the case at bar, the trial justice concluded that the revaluations were selective and patently discriminatory. He found that defendants intended to revalue only plaintiffs' property. These findings are to be given great weight on appeal. CIC Newport Associates v. Stein, R.I., 403 A.2d at 662. And when the trial justice's findings are supported by legally competent evidence, such findings will not be disturbed unless the justice is shown to be clearly wrong or unless he has overlooked or misconceived material evidence. See Edward R. Marden Corp. v. S & R Construction Co., Inc., 112 R.I. 332, 336, 309 A.2d 675, 677 (1973).
The defendants have maintained throughout this litigation that they acted only to correct past assessment errors that actually discriminated against the large majority of Cranston property owners who, they argued, were correctly assessed. We wish to make clear that correcting past inequities without a general revaluation is not illegal per se or violative of constitutional uniformity or equal-protection provisions. But when the tax authorities act out of improper or discriminatory motives, the legitimacy of the revaluation process ends. See Schreiber v. Reimcke, 11 Wash. App. 873, 875, 526 P.2d 904, 906 (1974).
After reviewing the record, we are satisfied that the trial justice ruled correctly. The evidence indicates that Mayor DiPrete decided the city needed $1,200,000 in additional revenues over the amount anticipated from normal increases. Eventually, this figure was increased to $1,600,000. The mayor's March 9 memo to Director Powers needs no further illumination to explain the mayor's intention with regard to plaintiffs' property. Subsequently, 114 out of 28,614 parcels were revalued; general revaluation had not taken place in Cranston since 1954. The revalued properties were confined to brick apartments with six or more units, rural properties in Western Cranston, and two utility companies. No serious attempt was made to revalue other property in the city, and no physical inspections were made of the revalued properties. Rather, defendants drew up a new assessment formula for the selected apartments which formula, along with the utility and rural property revaluations, produced just enough income to meet the city's projected revenue needs. We find therefore that there is abundant legally competent evidence underlying the factual findings of the trial justice and supporting his ruling that defendants assessed plaintiffs' property in an improper and illegal manner.
Finally, we approve of the nature of the trial justice's remedy ordering the defendants to expunge the March 1979 reassessments *1079 and permanently enjoining the defendants from collecting taxes based on these reassessments. Under the circumstances of this case, we find that this type of relief is appropriate. See Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 446, 43 S. Ct. 190, 192, 67 L. Ed. 340, 343 (1923); Ernest W. Hahn, Inc. v. County Assessors for Bernalillo County, 92 N.M. at 613-14, 592 P.2d at 969-70.
The defendants' appeal is denied and dismissed, and the case is remanded to the Superior Court.
SHEA, J., did not participate.
NOTES
[1] A second group of plaintiffs, composed of rural landowners in western Cranston, and an individual utility company settled their claims against defendants before this appeal was heard.
[2] The various plaintiffs brought several actions, four of which were heard together. In one of these, Finance Director Mary Gliottone was also joined as a named defendant.
[3] The mayor later learned that he needed $1,600,000 to meet the city's budgetary requirements because DiVincenzo had overestimated the normal increases by $343,000.
[4] In assessing apartments, Cranston distinguishes between frame and masonry or brick-constructed buildings.
[5] See note 1 supra.
[6] Although plaintiffs have challenged the revaluation procedure and to some extent the values assigned, we note that plaintiffs do not contend that defendants assessed their property at a percentage of fair market value differing from the uniform rate applied in Cranston.
[7] Additionally, the Superior Court justice held that the assessments violated state law because they were not made by defendant Assessor DiVincenzo.
[8] As a separate issue, plaintiffs argue that the new formula applied to revalue their property resulted in disproportionate taxation.
[9] The second major point, as noted by the trial justice, was that "the assessments are not those of the tax assessor, but of the Powers' Committee." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261073/ | 286 Pa. Super. 146 (1981)
428 A.2d 614
COMMONWEALTH of Pennsylvania, Appellant at No. 912,
v.
Vernard EACKLES, a/k/a Vernard Echols, Appellant at No. 1092.
Superior Court of Pennsylvania.
Submitted November 14, 1980.
Filed April 10, 1981.
*149 Kathryn L. Simpson, Assistant District Attorney, Pittsburgh, for appellant in No. 912 and appellee in No. 1092.
John H. Corbett, Jr., Pittsburgh, for appellant in No. 1092 and appellee in No. 912.
Before CERCONE, President Judge, and SHERTZ and WIEAND, JJ.
WIEAND, Judge:
Vernard Eackles, a/k/a Vernard Echols, was found guilty of thirty-eight counts of forgery,[1] thirty-one counts of theft by unlawful taking,[2] and one count of conspiracy[3] arising *150 out of a scheme to defraud the Allegheny County Department of Manpower. Subsequently, the trial court arrested judgment on the convictions for theft by unlawful taking but imposed sentence on the remaining convictions. Eackles, hereinafter referred to as appellant, has appealed from the judgment of sentence. The Commonwealth has appealed from the order arresting judgment. We find no error and, therefore, will affirm the several actions of the learned trial court.
The Commonwealth's evidence showed that in the summer of 1975, appellant had been employed as assistant director of the House of Culture, a Manpower agency. With the complicity of another Manpower employee, Edgar Rakestraw, he prepared employment papers and time sheets for fictitious employees. Based on these false employment records, paychecks were written on an office checkwriting machine and were made payable to various named persons. The names of the payees were forged and appellant, with knowledge of the forged endorsements, was able to cash the checks by countersigning the same in accordance with written authority therefor prepared by Rakestraw. The currency received was then distributed among Rakestraw, appellant and others involved in the scheme.
Appellant was arrested at or about 12:56 o'clock, P.M., on November 30, 1977, and was arraigned approximately five and one-half hours thereafter at 5:30 o'clock, P.M. Following arraignment, appellant ate dinner and conferred with his girl friend for more than an hour. He was repeatedly advised of his Miranda rights to remain silent, and said that he understood those rights. Nevertheless, at 9:00 o'clock, P.M., he indicated a willingness to make a statement. That statement was made and typed between 10:00 o'clock, P.M., and 5:45 o'clock, A.M., the following morning. During this period, appellant frequently took breaks to use the rest room or to get a soft drink or glass of water. In response to questions regarding his physical condition, appellant assured interrogating officers that he was "fine". Observers testified that he appeared relaxed and self-assured. He was 24 *151 years of age, in good physical condition, and a former college student. He indicated on several occasions that he did not need an attorney.
Appellant moved pre-trial to suppress his statement on the grounds that it had not been made voluntarily. After hearing, the court found the statement to be voluntary and refused to suppress it.[4] Having reviewed the evidence elicited on this issue, it seems clear that the facts support the trial court's conclusion that appellant's statement was voluntarily made. It is axiomatic, of course, that a confession to be valid must be given free of physical or psychological coercion which might interfere with one's will to resist. Commonwealth v. Cunningham, 471 Pa. 577, 582, 370 A.2d 1172, 1175 (1977). The test of voluntariness is whether the confession was the product of an essentially free and unconstrained choice by its maker. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 1879, 6 L. Ed. 2d 1037, 1057 (1961). In determining the voluntariness of a statement, the totality of the circumstances must be considered. Commonwealth v. Starkes, 461 Pa. 178, 184, 335 A.2d 698, 701 (1975). More specifically, there must be considered the age of the accused; his education level; his intelligence; his physical state; the duration and method of interrogation; the conditions of detention; the advice given to him concerning his constitutional rights; and any other circumstances pertinent to the inquiry.
When the totality of the circumstances is considered in the instant case, the voluntariness of appellant's statement becomes apparent. He was a healthy, 24-year-old former college student, and there were no unusual circumstances or undue delay which preceded his decision to give a statement. That statement was not rendered involuntary merely because it took longer than usual to complete the statement and reduce it to writing. During this period, there was neither physical nor psychological coercion exercised, and appellant remained alert and registered no complaint *152 that he was fatigued. He was, moreover, permitted to interrupt the questioning as and when he desired. Appellant's statement, therefore, was properly received as evidence against him at trial.
Appellant argues also that the trial judge improperly denied his motion for a two months' delay in the commencement of trial. There is no merit in this argument. "It is black-letter law that an appellate court may not reverse a trial court's denial of a continuance without a palpable and prejudicial abuse of discretion." Commonwealth v. Kishbach, 247 Pa.Super. 557, 561, 373 A.2d 118, 120 (1976). See also: Commonwealth v. Howard, 466 Pa. 445, 447, 353 A.2d 438, 439 (1976).
Appellant contends that prejudice occurred because his counsel had insufficient time to prepare an adequate defense. Appellant was arrested on November 30, 1977; preliminary hearings were held on December 8 and December 22, 1977; and appellant was arraigned on December 23, 1977. Pre-trial hearings commenced on January 16, 1978, were completed on January 19, 1978, and jury selection commenced on January 24, 1978. Thus, counsel had a period of fifty-five days within which to prepare for trial. We perceive no valid reason for holding such preparation time inadequate per se. Compare: Commonwealth v. Hampton, 462 Pa. 322, 341 A.2d 101 (1975); Commonwealth ex rel. Bronzell v. Myers, 205 Pa.Super. 375, 208 A.2d 871 (1965). Significantly, appellant has failed to specify in what manner he was unable to prepare his defense or what he could have done by way of preparation if given more time. In the absence of a showing of prejudice, therefore, we perceive no abuse of discretion and decline to reverse the trial court's denial of the defense motion for continuance. See: U.S. v. Weathers, 431 F.2d 1258 (3rd Cir. 1970).
Appellant next argues that he should have been permitted the wider pre-trial discovery allowed by Pa.R.Crim.P. 305. In this he is clearly in error. Rule 305, which is a revision of the former Rule 310, was made "effective as to *153 cases in which the indictment or information is filed on or after Jan. 1, 1978." In the instant case, the information was filed prior to January 1, 1978, and Rule 305, therefore, was inapplicable. Because the date of filing the information was controlling and not the date of trial, the scope of discovery available to appellant could not properly have been enlarged by granting his motion for a delay in the commencement of trial.
Finally, appellant argues that the trial judge erroneously received certain rebuttal evidence offered by the Commonwealth. The evidence complained of was elicited from the custodian of records at appellant's bank. This witness testified that appellant had made several large cash deposits to his checking account and had opened his safe deposit box during the period in which the alleged peculations occurred. We have said that the admissibility of rebuttal evidence is within the discretion of the trial judge. Commonwealth v. Haddle, 271 Pa.Super. 418, 413 A.2d 735 (1979); Commonwealth v. Hodge, 270 Pa.Super. 232, 411 A.2d 503 (1979). Further, even if evidence would more appropriately have been presented during the Commonwealth's case in chief, it is not necessarily error to permit it to be received on rebuttal. Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973); Commonwealth v. Bolden, 268 Pa.Super. 431, 408 A.2d 864 (1979). The evidence here, although admissible as circumstantial evidence during the Commonwealth's case in chief, was relevant on rebuttal to refute the defense contention that appellant had not profited personally from the scheme to defraud Manpower. See: Commonwealth v. Halleron, 163 Pa.Super. 583, 63 A.2d 140 (1949). Appellant contends that he was surprised by this rebuttal evidence and that he was denied sufficient time to investigate and meet it. The record shows, however, that counsel was granted a recess for that very purpose and that after conferring with appellant regarding these deposits, counsel requested no further time to investigate. He also offered no evidence. We find no abuse of discretion in the trial judge's allowance of this rebuttal evidence.
*154 The most difficult issue which we are called upon to decide is the statute of limitations issue raised by the Commonwealth's appeal from the arrest of judgment on the convictions for theft by unlawful taking. Initially, it must be observed that the period of limitation within which a prosecution for forgery may be brought is five years. A prosecution for theft, however, must be commenced within two years after it has been committed. 18 Pa.C.S. § 108(b). An exception to these limitations has been created by Section 108(c)(1) as follows:
If the period prescribed in subsection (b) of this section has expired, a prosecution may nevertheless be commenced for:
(1) any offense a material element of which is . . . fraud . . . within one year after discovery of the offense by an aggrieved party or by a person who has legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.
Appellant was charged with theft by taking or exercising unlawful control over checks belonging to Allegheny County. The offense charged was recited to be a violation of Section 3921(a) of the Crimes Code of December 6, 1972, 18 Pa.C.S. § 3921(a), which provides: "A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof."
Is fraud a material element of the offense of theft by unlawful taking? Fraud is characterized by a false representation of a material matter made with knowledge of its falsity and with the intent to deceive. Commonwealth v. DeBellis, 20 D. & C.2d 153 (C.P. Bucks 1959), affd., 191 Pa.Super. 561, 159 A.2d 765 (1960), affd., 401 Pa. 552, 165 A.2d 77 (1960). In determining whether this is a "material element" of the crime of theft by unlawful taking, we find assistance in the definitional section of the Crimes Code at 18 Pa.C.S. § 103. "Material element of an offense" is there *155 defined as: "An element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with: (1) the harm or evil incident to conduct, sought to be prevented by the law defining the offense; or (2) the existence of a justification or excuse for such conduct." As relevant to this case, therefore, if fraud is to be a material element of the offense charged, it would be necessary that it have some connection with the harm or evil sought to be prevented. The harm sought to be prevented by the language making theft a crime is clearly the unlawful taking of another's property. To convict of theft by unlawful taking, the Commonwealth is not required to prove that the taking was accompanied by fraud in the legal sense. Compare: Commonwealth v. Mutnik, 486 Pa. 428, 406 A.2d 516 (1979). Neither is fraud the harm or evil sought to be prevented by the language making theft by unlawful taking a crime. We conclude, therefore, that fraud is not a material element of the crime of theft by unlawful taking.
When the legislature enacted the period of limitations within which to commence prosecution, the assumption was that offenses such as theft by unlawful taking were discoverable by the victim within a reasonable time thereafter. The same assumption could not be made where fraud was inherent in the offense and rendered discovery more difficult. Thus, the exception of Section 108(c)(1) was created.
When the Commonwealth seeks to toll the statute under this section, it must allege the exception in the information or otherwise apprise defendant within a reasonable time that it intends to toll the statute of limitations. Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980). In this way the defendant will be apprised "that he must defend not only against the crime itself, but also against the limitation of prosecution." Commonwealth v. Bidner, 282 Pa.Super. 100, 114, 422 A.2d 847, 854 (1980); Commonwealth v. Cody, 191 Pa.Super. 354, 358-59, 156 A.2d 620, 622-23 (1959). See also: Commonwealth v. Creamer, 236 Pa.Super. 168, 345 A.2d 212 (1975). The information in *156 the instant case did not allege that the theft by unlawful taking with which appellant was charged was accompanied by fraud or that fraud was a material element thereof. The information did recite, as the Commonwealth asserts, that the Commonwealth was relying on Section 108(c)(1) to obviate the problems otherwise inherent in its failure to commence prosecution within two years after the offense had been committed. This was a general averment, however, and did not specifically allege fraud to be a material part of the theft offense with which appellant had been charged.
The Commonwealth's further argument is premised upon the avowed intention of the Crimes Code to eliminate the technical distinctions between the various theft offenses recognized by the common law and embrace within the crime of "theft" all those offenses previously known as larceny, fraudulent conversion, false pretenses, extortion, blackmail and receiving stolen property. Thus, in Section 3902 of the Crimes Code, the legislature consolidated theft offenses and provided: "An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification in a different manner in the complaint or indictment . . . ." From this, the Commonwealth contends that irrespective of the theft offense described in the information its evidence showed a theft in which fraud rendered discovery difficult. Having proven fraud, the Commonwealth argues, the statute of limitations was tolled. We reject this argument. If the Commonwealth intended to prove a crime in which fraud was a material element so as to toll the statute of limitations, it was required to allege that offense in the information. Fraud was not a material element of theft by unlawful taking and proof thereof was not essential to a conviction. Moreover, the fraud which the Commonwealth proved was only material to and a necessary ingredient of the crime of forgery. Although appellant may have been guilty of fraudulent conduct as a part of the scheme by which checks were forged, the theft of the checks was complete without proof that fraud was a necessary element thereof.
*157 We agree with the Commonwealth that the effect of Section 3902 of the Crimes Code upon Section 108(c)(1) thereof is less than clear and that ambiguities, therefore, exist. However, to hold, as the Commonwealth urges, that Section 3902 of the Crimes Code provides a sufficient nexus to make fraud a material element of all theft offenses would require that we ignore not only the clear language of Section 108(c)(1) but also substantive distinctions between crimes of theft which the legislature preserved in 18 Pa.C.S. §§ 3921 to 3929. A broad interpretation of Sections 3902 and 108(c)(1) which would create an additional exception not specified in the statute is neither necessary nor wise.
We cannot ignore the letter of the statute of limitations under the guise of enforcing the vaguely defined spirit thereof which the Commonwealth advocates. We hold, therefore, that prosecutions for theft by unlawful taking must be commenced within two years after the offense has been committed.
The order arresting judgment on the convictions for theft by unlawful taking and the judgment of sentence imposed for convictions of forgery and conspiracy are affirmed.
NOTES
[1] 18 Pa.C.S. § 4101(a)(3).
[2] 18 Pa.C.S. § 3921(a).
[3] 18 Pa.C.S. § 903(a)(1) and (2).
[4] The issue of the voluntariness of appellant's statement was also submitted to the trial jury. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319257/ | 78 S.E.2d 182 (1953)
238 N.C. 418
BEAMAN
v.
SOUTHERN RY. CO. et al.
No. 170.
Supreme Court of North Carolina.
October 21, 1953.
*183 Paul J. Story, Marion, and Edwin S. Hartshorn, Asheville, for plaintiff appellant.
W. T. Joyner, Raleigh, and Proctor & Dameron, Marion, for defendant appellees.
BARNHILL, Justice.
That the testimony offered by plaintiff, considered in the light most favorable to him, discloses negligence on the part of defendant may be conceded. If the judgment of nonsuit is to be sustained, it must be *184 sustained for the reason plaintiff was guilty of contributory negligence as a matter of law.
On this phase of the case we must admit that this appeal presents a close question. It is a borderline case in which the presumption the trial judge ruled correctly must be considered in determining whether the appellant has shown prejudicial error.
"Every decision of a competent court must be deemed to be according to the law and the truth of the case until the contrary is shown." Gaston, J., Wade v. Dick, 36 N.C. 313.
On an appeal, error will not be presumed. Hayes v. Lancaster, 200 N.C. 293, 156 S.E. 530; Cole v. Atlantic Coast Line R. R., 211 N.C. 591, 191 S.E. 353; Phillips & Buttorff Manufacturing Co. v. Call, 211 N.C. 730, 192 S.E. 105. Instead, "the ruling of the court below in the consideration of an appeal therefrom is presumed to be correct." Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789, 791; Warren v. Virginia-Carolina Joint Stock Land Bank, 214 N.C. 206, 198 S.E. 624.
The burden is on the appellant, Cole v. Atlantic Coast Line R. R., supra, Gold v. Kiker, 218 N.C. 204, 10 S.E.2d 650, Gibson v. Dudley, 233 N.C. 255, 63 S.E.2d 630. He must show error, Phillips & Buttorff Manufacturing Co. v. Call, supra, White v. Price, 237 N.C. 347, 75 S.E.2d 244, McCune v. Rhodes-Rhyne Manufacturing Co., 217 N.C. 351, 8 S.E.2d 219, Freeman v. Preddy, 237 N.C. 734, 76 S.E.2d 159, and "he must make it appear plainly * * *." Scott v. Swift & Co., 214 N.C. 580, 200 S.E. 21; Quelch v. Futch, 175 N.C. 694, 94 S.E. 713. (For other cases relating to the burden on appeal, see 2 N.C. Digest, Appeal and Error.)
Here the plaintiff was thoroughly familiar with the crossing and the surrounding area. He knew that the tracks to his left curved in a southerly direction. He saw the trees and bushes along the track almost daily. He knew it was a dangerous crossing. It was a clear day and the windows to his automobile were open. He looked to the right and then to the left and there was nothing that he could see coming from the west. He then looked forward and proceeded to cross the track. When he traveled only from 7 to 9 feet and his right wheel was across the first rail, he saw a train to his left, from 125 to 175 feet from the crossing. Why did he not see the train almost directly in front of him before it had traveled from 125 to 175 feet beyond all obstructions? Was it for the reason he looked once and then looked no more as his evidence seems to indicate?
He was asked: "At the time you stopped and looked you did not look any more until you got your wheels on the track, did you look to the left or west any more?" To this he replied: "I looked to the left and then I looked forward because you had to look where your car was going."
"Q. You looked straight ahead? A. Yes."
In explaining why he did not see the train until it was within about 125 feet of him when he could have seen it along the north rail for 300 or 325 feet, he testified: "I got the right front wheel across the south rail of that track which took some little time from where I was stopped back here."
The record is not such as to permit us to say that the court below was in error in concluding that if plaintiff had looked slightly to his left as he put his vehicle in motion, he would have seen the approaching train in ample time to avoid the collision. Instead, his evidence supports the conclusion that he looked once and then looked no more. The distance the train had traveled between the time he looked and the time he actually saw it indicates strongly that it must have been in full view before he actually reached the zone of danger, and, as he was traveling at a speed of only 3 or 4 miles per hour, he could have stopped instantly. It would seem, therefore, that the line of decisions represented by Parker v. Atlantic Coast Line R. R., 232 N.C. 472, 61 S.E.2d 370, and the cases there cited, is controlling.
*185 As stated by Stacy, C. J., in Gold v. Kiker, supra [218 N.C. 204, 10 S.E.2d 652]:
"It may be conceded that the record is such as to leave the matter in doubt. This alone would seem to defeat the assignment of error on appeal, as the party alleging error has the laboring oar and must overcome the presumption against him. * * Verdicts and judgments are not to be disturbed except upon a showing of prejudicial error, i. e., error which amounts to the denial of some substantial right. (Cases cited.)"
As the conclusion plaintiff has failed to overcome the presumption against him prevails, the judgment entered must be
Affirmed.
WINBORNE, J., took no part in the consideration or decision of this case.
DEVIN, Justice (dissenting).
I am unable to agree with the majority opinion in this case. The testimony of the plaintiff does not, in my opinion, afford evidence of contributory negligence sufficient to justify a compulsory nonsuit. The well-established rule in this jurisdiction is that the defendant's motion for judgment of nonsuit on the ground of contributory negligence may be allowed only when "the plaintiffs' evidence establishes such negligence so clearly that no other conclusion may be reasonably drawn therefrom". Edwards v. Vaughn, 238 N.C. 89, 76 S.E.2d 359, 362, and cases cited.
I think the plaintiff was entitled to have his case submitted to the jury.
JOHNSON, J., concurs in dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319284/ | 195 Va. 302 (1953)
ATLANTIC GREYHOUND CORPORATION
v.
CITY OF WINCHESTER.
Record No. 4186.
Supreme Court of Virginia.
November 30, 1953.
Shewmake, Gary, Goddin & Blackwell, for the plaintiff in error.
Dabney W. Watts, for the defendant in error.
Present, Eggleston, Spratley, Buchanan, Miller, Smith and Whittle, JJ.
1. The powers of a municipality to impose occupation taxes are strictly construed in favor of the taxpayer.
2. Petitioning common carrier operated in the city of Winchester a bus terminal in which it leased space for locker and restaurant facilities and which it allowed other carriers to use in return for a percentage of their ticket sales, no profit being shown however. Such operation was incidental to its business as a common carrier and not for profit; hence under Code 1950, section 46-65, petitioner was exempt from payment of license taxes assessed by the city on the operation of the terminal and entitled to refund of taxes paid.
Error to a judgment of the Corporation Court of the city of Winchester. Hon. Elliott Marshall, judge presiding. The opinion states the case.
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
In several petitions for the correction of erroneous assessments, Atlantic Greyhound Corporation, hereinafter referred to as the petitioner, contended that the City of Winchester, hereinafter referred to as the City, had illegally assessed petitioner with license taxes for the years 1947, 1948, 1950, 1951, 1952, and 1953, for the operation of its bus terminal in that City. The petitions were consolidated and heard together. The trial court in its final order held that, prior to 1951, the City had no authority under its charter or the general law to impose a license tax for the privilege of operating terminals for use by common carriers of passengers by motor vehicles, and that, therefore, the assessments of such tax for 1947, 1948 and 1950 were erroneous and invalid, and directed a refund of all sums paid by petitioner for licenses for said years. No error has been assigned to this holding, and it is not in question here. The court further held that assessments of such taxes for the years 1951, 1952 and 1953 were valid under the ordinances of the City by virtue of the 1950 amendment to | 46-65, Code of Virginia, 1950, and denied a recovery of any sums paid therefor. The petitioner excepted to this holding and we granted writ of error.
The material facts of the case were stipulated as follows:
"It is stipulated and agreed by and between counsel for the applicant, Atlantic Greyhound Corporation, and the City Solicitor for the City of Winchester that the facts pertaining to these applications are as follows:"
"For the year 1947 and subsequent years involved, Atlantic Greyhound Corporation was assessed with and paid under protest a license tax for the privilege of operating a bus terminal in the City of Winchester, Virginia, which tax was imposed by ordinances of the City of Winchester which, with the exception of the year 1947, were as follows: 'BUS TERMINALS. For each motor passenger bus terminal, depot, station or other like place operated in the City of Winchester *304 for the accommodation of passengers, the tax shall be $500.00." For the year 1947 the ordinance was the same except that the amount of the tax was $250.00. These applications are directed to correcting the assessment of those taxes as being erroneous and securing refunds of such taxes.
"Atlantic Greyhound Corporation is a common carrier of passengers by motor vehicle engaging in intrastate commerce under authority of certificates of convenience and necessity issued by the State Corporation Commission of Virginia and in interstate commerce under certificates of convenience and necessity issued by the Interstate Commerce Commission. It transports passengers between Winchester, Virginia, and other points and places, and through Winchester, Virginia, on trips between other points and places. It engages in no intra-city transportation in the City of Winchester."
"It leases a parcel of real estate briefly described as 16-18 North Braddock Street which it operates as a bus terminal in connection with and incidental to its business as a common carrier and not for profit."
"Atlantic Greyhound Corporation permits other common carriers of passengers, namely, Capitol Greyhound Lines, Blue Ridge Transportation Company, Potomac Motor Lines and Virginia Stage Lines to use the facilities of the terminal. The other carriers, except Capitol Greyhound Lines, pay ten per cent of ticket sales at the terminal for the privilege of picking up and discharging passengers there. The expense of operating the terminal is prorated between Atlantic Greyhound Corporation and Capitol Greyhound Lines after deducting from the total expenses of operation and the receipts from the other carriers and the facilities hereinafter mentioned on the basis of ticket sales."
"Atlantic Greyhound Corporation permits the Union News Company to operate restaurant facilities in the terminal and receives for this ten per cent of the gross receipts plus $30.00 per month as a contribution to the cost of utilities. Union News Company pays to the City of Winchester an annual merchants license tax and an annual *305 restaurant license tax both of which are based upon gross receipts."
"Atlantic Greyhound Corporation permits the American Locker Company to maintain parcel lockers for the convenience of passengers, operated on the coin-in-slot principle, and receives therefor sixty percent of the gross receipts. American Locker Company pays the City of Winchester an annual license tax of twenty-five cents per locker."
"The expense of operation of the terminal exceeds the receipts from all of the above sources."
The question for our determination is whether, under the foregoing facts, the activities of the petitioner bring it within the exemption or limitation of the provisions of Code, | 46-65, Code of Virginia, 1950, as amended by an Act of the General Assembly, approved March 17, 1950, Acts, 1950, page 407.
Section 46-65, as amended in 1950, reads as follows:
"Limitations on imposition of such taxes and fees. -- No such county, city or town shall impose any taxes or license fees upon any vehicle on which similar taxes or fees are imposed by the county, city or town of which the owner of such vehicle is a resident; nor shall more than one county, city or town impose any such license fee or tax on the same vehicle. Nor shall any such county, city or town impose taxes or license fees upon any vehicle belonging to any person who is not a resident of such county, city or town, when used exclusively for pleasure or personal transportation and not for hire, or for transporting into and within such county, city or town, for sale in person or by his employees of wood, meats, poultry, fruits, flowers, vegetables, milk, butter, cream or eggs produced or grown by him, and not purchased by him for sale, or for both such purposes, provided, that such vehicle is not used in said county, city or town in the conduct of any business or occupation other than those herein set out. Counties, cities and towns may impose license taxes for the privilege of operating or conducting terminals for use by common carriers of passengers by motor vehicles. *306 Operation of terminals by such carriers in connection with and incidental to their business as such common carriers, and not for profit, or for such carriers where the local agent receives as his compensation a commission on tickets sold shall not be subject to the imposition of any such taxes. Lots used by such carriers for parking, storage and servicing of motor vehicles used in the business of such carriers and for taking on and discharging passengers shall not be deemed terminals. Nothing herein contained shall be construed to exempt the payment of license taxes on any other business that may be conducted on, at or in any such terminal or lot."
The 1950 amendment consisted of the provisions contained in the italicized sentences. The Virginia Code Commission for better arrangement codified the amendment as Code, | 56-337.1, although it is also carried as a part of Code, | 46-65.
The City contends that since the facts show that petitioner permits, for compensation, four other common carriers of passengers by motor vehicles, to use its terminal, and rents the use of its facilities to others for restaurant and parcel locker purposes, it is engaged in other business, in addition to its operation of its terminal in connection with and incidental to its own business as a common carrier, and, therefore, does not come within the exemption of the 1950 amendment. The trial court adopted that view.
It is a well established rule that the powers of a municipality to impose occupation taxes are strictly construed in favor of the taxpayer and against the municipality. Norfolk Griffin, 120 Va. 524, 536, 91 S.E. 640; Cooley on Taxation, (3d Ed.), page 1101.
In Estes Richmond, 193 Va. 181, 68 S.E.(2d) 109, Mr. Justice Miller carefully reviewed the cases and authorities, and in commenting on the above rule said, in part, as follows (193 Va. page 189):
"It is universally recognized that where there is any substantial doubt as to whether or not a particular business is *307 included within the descriptive or designating language of a legislative enactment imposing a license tax, that doubt must be decided in favor of the taxpayer." 53 C.J.S., Licenses, | 13(b), page 495; 33 Am. Jur., Licenses, page 329; Sedalia Shell Petroleum Corp.,
(8th Cir. 1936), 81 F.(2d) 193, 197, 106 A.L.R. 1327; Miller Standard Nut Margarine Co., 284 U.S. 498, 52 S. Ct. 260, 263, 76 L.ed. 422; Commonwealth Va. Elec., etc., Co., 159 Va. 655, 665, 167 S.E. 440.
Prior to the enactment of the 1950 amendment, the City had no power to impose the license tax in question. The amendment granted that power; but specifically excluded its exercise where the operation of bus terminals was by "carriers in connection with and incidental to their business as such common carriers, and not for profit, * * *."
The determination of taxability was thus limited to questions of the nature of the operation and purpose of the operation. The test of the exemption here claimed does not include any reference to size of the operation or the method, or to the number of carriers engaged therein. That test is whether the petitioner operated its Winchester terminal "in connection with and incidental" to its business as a common carrier of passengers by motor vehicles, and "not for profit." The facts stipulated are couched in the language of the statutory exemption, and are in accordance with those found by the trial judge. The language of the statute is clear and simple, and it should not be extended by implication and conjecture.
The joint use of terminals in the field of transportation is a common practice in cities where lines of carriers meet. Such terminals are for the benefit of the traveling public and the carriers, because they facilitate interchange from one line to another. The language of the exemption is in the plural and manifestly contemplates the joint use of bus terminals, for it provides, in part, as follows: "Operation of terminals by such carriers [common carriers of passengers by motor vehicles] in connection with and incidental to *308 their business as such common carriers, and not for profit, * * * shall not be subject to the imposition of any such [municipal license] taxes." It is hardly reasonable to suppose the legislature intended that the joint operation of a terminal by several carriers should be subject to the tax, but that an individual operation should be exempt.
The several carriers using the terminal merely shared the expense of its operation, and the several concessionaires of restaurant and parcel locker privileges contributed only a part of the cost. Thus, the terminal was not operated for profit, and no profit was shown. The license taxes on such "other business" were imposed on and paid by the operators thereof.
The probable conduct of restaurant, rest room, and checking facilities in terminals was undoubtedly recognized by the Act in the provision that: "Nothing herein contained shall be construed to exempt the payment of license taxes on any other business that may be conducted on, at or in any such terminal or lot." Each of such facilities is for the convenience and benefit of passengers, especially at bus terminals, since buses have no dining or rest room facilities.
The admitted facts in this case clearly show that the petitioner operated its Winchester bus terminal in connection with and incidental to its business, and not for profit. They bring the petitioner squarely within the exemption of the 1950 amendment, and it is not, therefore, subject to the license taxes imposed by the City of Winchester for the years 1951, 1952 and 1953.
For the reasons stated, the judgment of the trial court is set aside insofar as it relates to the license taxes assessed against petitioner for the years 1951, 1952 and 1953, and this court, in pursuance of | 8-493 of the Code of Virginia, 1950, will enter a final judgment adjudging and ordering that the Atlantic Greyhound Corporation be exonerated from the payment of the license taxes assessed against it for the said three years, and recover of the City of Winchester such sums, including fees and penalties, as it has paid to the *309 City as license taxes for the privilege of operating its bus terminal within the said City for the years aforesaid, together with the costs of this proceeding.
Reversed and final judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319283/ | 649 P.2d 510 (1982)
98 N.M. 442
In the Matter of John DOE I, II, III, IV & V.
STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT, Plaintiff-Appellee,
v.
MARY LOU LEVARIO and Raymond Sickler, Defendants-Appellants.
No. 5478.
Court of Appeals of New Mexico.
July 20, 1982.
*512 Albert H. Engel, Las Cruces, for defendants-appellants.
Jeff Bingaman, Atty. Gen., Bruce M. Burwell, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
OPINION
SUTIN, Judge.
The trial court terminated the parental rights of Mary Lou Levario (Mary) and Raymond Sickler, natural parents. Mary appeals. We affirm.
On September 11, 1979, the Department of Human Services (DHS) filed a "Neglect Petition" under § 32-1-19, N.M.S.A. 1978 of the "Children's Code." It alleged that the parents negligently placed their children in a situation that would endanger their health; that the parents were unable to discharge their parental responsibilities because of mental incapacity; that a preliminary inquiry was completed and it was in the best interest of the children and the public that the petition be filed. The children were not in the custody of DHS.
An affidavit for ex parte custody order, an ex parte custody order, and an appointment of guardian ad litem for the children were filed.
On September 25, 1979, the court ordered an evaluation by Southwest Mental Health Center of the parents and children with copies of all diagnostic or evaluation reports to be given to lawyers of the parties.
On December 27, 1979, a stipulated agreement was entered into by the parties and lawyers. It provided that the parents would not contest DHS custody of the children. It also stated what the duties of Mary were with reference to the care of the children and what the duties of DHS were and Raymond. On the same day, the stipulation was adopted as the order of the court. No further proceedings took place. No determination was made whether Mary had neglected the children. The essence of the order left Mary with care of the children during a two year period in which DHS had uncontested custody of them.
On March 13, 1981, DHS filed a verified application to terminate parental rights pursuant to § 40-7-4, N.M.S.A. 1978 (1981 Cum.Supp.). The grounds stated were those set forth in § 40-7-4(B). The facts and circumstances supporting those grounds were alleged. Trial was had June 24, 1981. On September 8, 1981, a decision was rendered in which parental rights were terminated. Mary's rights were terminated on the basis of child neglect. Section 40-7-4(B)(3). The trial court found:
3. Respondent Sickler abandoned his said children.
*513 4. Respondent Mary Lou LeVario is the natural mother of said children, but she has failed to provide proper parental care and control for them.
5. Respondent LeVario has passively neglected her children whereby they have suffered emotional and psychological damage.
6. Neither respondent is likely to change in the foreseeable future notwithstanding reasonable efforts of the state in assisting both respondents to become responsible parents.
7. It is to the best interests of the children that their care, supervision and rearing not be further entrusted to either respondent.
The trial court concluded that the Sickler children were neglected children and the parental rights should be terminated.
The findings of the court are sustained by clear and convincing evidence, substantial in nature. Section 40-7-4(J).
Mary raises seven points of error. Those pertaining to an attack on the court's findings are without merit. We will not weigh the evidence and substitute our judgment for that of the trial court. We will resolve the legal issues presented. They are: (1) the court lacked jurisdiction to proceed in the instant case; (2) the psychological testimony concerning the mother's parental ability was inadmissible; and (3) termination can only be accomplished if all the criteria of § 40-7-4(B)(4) are established.
A. The trial court had jurisdiction to proceed in the instant case.
Mary contends that the orders entered in the neglect proceedings on December 27, 1979, precluded consideration of the instant case on termination of parental rights. Reliance is had on the rules stated in 50 C.J.S. Judgments § 598 (1947) and 21 C.J.S. Courts § 492 (1940).
The "Judgments" rule is entitled "Estoppel by Former Recovery." Simply stated, a final valid judgment on the merits bars any further suit between the same parties on the same cause of action. See, State ex rel. Sofeico v. Heffernan, 41 N.M. 219, 67 P.2d 240 (1936).
The neglect proceedings did not result in a final judgment on the merits. No hearing was held. No determination was made whether Mary had neglected her children. The case was left in limbo. DHS was not barred under the "Judgments" rule from bringing the termination proceedings.
The "Courts" rule is entitled "Priority and Retention of Jurisdiction." Simply stated, the court first obtaining jurisdiction retains it as against a court of concurrent jurisdiction in which a similar action is subsequently instituted between the same parties seeking similar remedies involving the same subject matter. See, Historical Society of New Mexico v. Montoya, 74 N.M. 285, 393 P.2d 21 (1964). In the instant case, the district court sitting as the children's court had exclusive jurisdiction of the termination proceedings. Section 32-1-9(B)(1). Furthermore the remedies were not similar. In the neglect proceedings, Mary only had care of the children. In the termination proceedings, Mary was divested of all parental rights as stated in § 40-7-4(L). There was similarity in both actions on the subject of neglect but dissimilarity with respect to the remedy. Mary suggests that the neglect proceedings could be transformed by motion into a termination proceeding; therefore, the court in the termination proceedings interfered with the jurisdiction of the court in the neglect proceedings. Inasmuch as both the neglect and termination proceedings were filed in the children's court division of the district court, we assume that an amendment to the petition in the neglect proceeding could have sought termination. Such, however, is irrelevant. The only proceeding seeking termination was the second proceeding; the prior proceeding, concerned with the fact of neglect, was not a jurisdictional bar to the separate termination proceeding.
The trial court had jurisdiction to proceed with termination of parental rights.
*514 B. The psychological testimony was not privileged.
Mary contends that the testimony of two psychologists as to her parental ability was privileged and inadmissible. The gist of their testimony was that Mary had a chronic, inadequate personality which was unlikely to change.
Reliance is had on Rule 504 of the Rules of Evidence entitled "Psychotherapist-patient privilege." A licensed or certified psychologist is a psychotherapist. Rule 504(a)(2). Mary sought to exclude any testimony by the psychologists concerning her condition. This objection went far beyond any question of a confidential communication made by Mary. She sought to bar any testimony concerning the children even though the children's attorney expressly stated that no privilege was claimed on behalf of the children. She sought to bar any testimony concerning herself on the basis of Evidence Rule 504.
Because Mary had obtained mental health counseling pursuant to the stipulation in the neglect proceeding and because reports of counseling had been furnished to all parties, the trial court ruled that any privilege had been waived. On appeal Mary attacks the waiver ruling; she asserts that the Department should be estopped to claim a waiver on the basis that the reports disclosing the counseling and their results had been obtained by the Department under the guise of appearing to assist the mother. We do not answer this contention.
On appeal, Mary does not identify any confidential communication which the psychologists disclosed in their testimony. Thus, nothing is presented which suggests that the privilege in Evidence Rule 504(b) was violated. State Health and Soc. Serv. Dept. v. Smith, 93 N.M. 348, 600 P.2d 294 (Ct.App. 1979).
Further, Evidence Rule 504(d)(3) states:
(3) Condition an element of claim or defense. There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.
2 Weinstein's Evidence § 504[07] (1981) explains that the above-quoted rule
is based on the familiar principle of waiver. It proceeds on the assumption that it is unfair for a party to rely on his mental condition, and, at the same time, suppress evidence relevant to that condition. The exception applies in both civil and criminal cases and, therefore, applies when a criminal defendant pleads insanity.
Mary's communications to the psychologists were relevant to her mental condition; in the termination proceeding Mary relied on her mental condition in opposing the termination of her parental rights. There was no privilege as to those communications under Evidence Rule 504(d)(3).
It is important to understand the meaning of a confidential communication. Rule 504(a)(3) reads in part:
A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination or interview * * *. [Emphasis added.]
These confidential communications are privileged. The patient, not the psychotherapist has the privilege. Rule 504(c). The patient may refuse to disclose and prevent any other person from disclosing confidential communications. Rule 504(b).
Communications between psychotherapists and patients are not ipso facto confidential. To be confidential, two conditions must be present: (1) the patient "intended" the communications to be undisclosed; and (2) that non-disclosure would further the interest of the patient.
A communication includes: (1) verbal communication of patient to psychotherapist; (2) information or knowledge gained by observation and personal examination of the patient; (3) inferences and conclusions drawn therefrom; and (4) exhibiting the *515 body or any part thereof to the psychotherapist for an opinion, examination or diagnosis. Williams v. City of Gallup, 77 N.M. 286, 421 P.2d 804 (1966).
"`Intention' is a state of mind seldom capable of direct proof and is determinable only through logical deduction from proven facts." Thomas v. Fitch, 435 S.W.2d 703, 707 (Mo. App. 1968); Walker v. Woodall, 288 Ala. 510, 262 So. 2d 756 (1972). It is subject to change from hour to hour and from day to day. State ex rel. Jewett v. Satti, 133 Conn. 687, 54 A.2d 272 (1947). In re Estate of Lyman, 7 Wash. App. 945, 503 P.2d 1127, 1131 (1972) said:
Uncommunicated subjective mutual intention to abandon is not enough. The intention of each party, to be legally operative, must be a manifested intention. In the absence of words, there must be conduct, or if there be both words and conduct, such words and conduct together must provide sufficient evidence from which a fair inference of their intention may be ascertained.
No objective standard exists to determine a person's state of mind. It is not sufficient for a patient to say that in the patient's mind the communications were confidential and furthered her own interest. It must be manifested in some fashion with words or words and conduct which lead a psychotherapist to understand or believe that the information obtained was intended to be confidential.
The purpose of this rule is to encourage persons who need medical consultation, examination or interview to seek the advice and opinion of a psychotherapist without fear of betrayal. Fear of betrayal, which is a state of mind, must induce a person to communicate this thought to the psychotherapist who in turn will understand the thought conveyed. During consultation, examination or interview, a psychotherapist may inquire about confidentiality but is under no duty to do so. The psychotherapist is ordinarily neutral on this issue until non-disclosure is conveyed. The patient is not neutral because disclosure or non-disclosure may further the patient's interest in the consultation, examination or interview.
A serious question arises whether DHS was estopped to use the psychologists' testimony. The psychologists testified that DHS requested the examinations and counseling. It was not ordered by the court. While appearing to assist Mary with her mental and emotional problems, DHS garnished evidence with which to terminate her parental rights. If DHS induced Mary to be examined and counseled by the psychologists, something she would not have done but for such inducement, DHS is estopped by conduct. Tome Land & Improvement Co. v. Silva, 83 N.M. 549, 494 P.2d 962 (1972). Mary points to nothing in the record which shows inducement by DHS and reliance thereon to her detriment.
The psychologists' testimony as to Mary's parental ability were not privileged.
C. Section 40-7-4(B)(4) on termination is an alternative and not applicable.
Mary claims that § 40-7-4(B)(4) contains the exclusive grounds for termination because the children were in foster care. We disagree.
Section 40-7-4 on termination of parental rights contains four separate bases upon which relief can be obtained. Each one is separated by the word "or." Each is an alternative of the other. State ex rel. Dept. of Human Services v. Minjares, 98 N.M. 198, 647 P.2d 400 (1982).
In Matter of Three Minor Children, 406 A.2d 14, 16 (Del. 1979), the court said:
Further, § 1103, by listing the grounds for termination in the disjunctive evidences clear legislative intent that each of the stated grounds is to be considered an independent basis for termination, with the choice of grounds depending upon the facts of the particular case and with the choice lying with the petitioner, subject of course, to proof thereof.
See, In Interest of T.S.L., 487 Pa. 245, 409 A.2d 332 (1979).
Relief can be obtained on any one of the four factual situations stated. Termination *516 of Mary's parental rights was ordered pursuant to § 40-7-4(B)(3) which pertains to a neglected child. Subsection (B)(4) pertains to a child who has been placed in foster care by a court order. Either subsection is independent of the other. Neither subsection contains the exclusive grounds upon which relief can be granted. Subsections (B)(3) and (B)(4) were alleged in the complaint. After trial, either subsection could have formed the basis for termination if the findings of the court were sustained by substantial evidence.
The trial court rendered a decision and judgment on subsection (B)(3). Subsection (B)(4) is an alternative, not applicable in this appeal.
The attorney in this appeal was appointed specially to perfect this appeal. He was not the attorney who tried the case in the court below. An excellent presentation was made.
Affirmed.
IT IS SO ORDERED.
LOPEZ, J., concurs.
WOOD, J., specially concurring.
WOOD, Judge (specially concurring).
I agree with the result reached, with the discussion under Issues A and C and the discussion under Issue B which points out that: (1) there is nothing which suggests that Evidence Rule 504(b) was violated, and (2) there was no privilege under Evidence Rule 504(d)(3). I do not join in the discussion as to the meaning of confidential communication or the speculation about estoppel; such is inappropriate to the decision in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319287/ | 224 S.C. 263 (1953)
78 S.E.2d 382
PARKER
v.
STATE HIGHWAY DEPARTMENT.
16793
Supreme Court of South Carolina.
November 5, 1953.
*264 *265 Messrs. T.C. Callison, Attorney General, James S. Verner, Assistant Attorney General, and Daniel R. McLeod, Assistant Attorney General, of Columbia, for Appellant.
*266 Messrs. James P. Mozingo, III, and John L. Nettles, of Darlington, for Respondent.
Messrs. T.C. Callison, Attorney General, James S. Verner, Assistant Attorney General, and Daniel R. McLeod, Assistant Attorney General, of Columbia, for Appellant, in reply.
November 5, 1953.
OXNER, Justice.
We are asked to determine whether during the pendency of an appeal from a conviction and sentence for driving an automobile while under the influence of intoxicating liquor, *267 the Highway Department is authorized to suspend the license of the person so convicted.
Respondent was arrested on November 25, 1952, for driving a motor vehicle while under the influence of intoxicating liquor. He was tried and convicted in the Recorder's Court for the Town of Darlington on May 19, 1953. A report of his conviction was promptly made to the Highway Department as required by Section 46-347 of the 1952 Code. After receiving this report, the Department, on May 25, 1953, under the authority of Section 46-348, suspended respondent's driver's license for six months. He then appealed to the Court of General Sessions for Darlington County from the conviction and sentence in the Recorder's Court. Notice was also served on the Highway Department that he would move in the Circuit Court on June 13, 1953, for an order staying the suspension of his license pending the outcome of his appeal. The stay order requested was granted by the Circuit Judge on June 30, 1953. The Court concluded that the attempted revocation of respondent's license was premature and could not lawfully be made during the pendency of the appeal from his conviction. The correctness of this conclusion is challenged by the Highway Department.
Under the terms of Section 46-347, all clerks of court, magistrates and city recorders are required to make a report to the Motor Vehicle Division of the Highway Department of every conviction, plea of guilty, or forfeiture of bail for violating any law of this state or the ordinance of any municipality prohibiting a person from operating a motor vehicle while under the influence of intoxicating liquor. Such report must be made within ten days after such conviction, plea of guilty or forfeiture of bail.
Section 46-348 provides that "the Department shall suspend the driver's license of any person who is convicted, receives sentence upon a plea of guilty or forfeits bail posted for the violation" of any law of this State, or the ordinance of any municipality of this State, that prohibits a person *268 from operating a motor vehicle while under the influence of intoxicating liquor, drugs or narcotics, "for a period of six months for the first conviction, plea of guilty or forfeiture of bail, a period of one year for the second conviction, plea of guilty or forfeiture of bail and a period of two years for the third and each subsequent conviction, plea of guilty or forfeiture of bail."
The Court below held that an appeal from a conviction and sentence for operating a motor vehicle while under the influence of intoxicating liquor acted as a supersedeas, so as to preclude any action by the Highway Department with respect to the suspension of respondent's license until final disposition of the appeal. Appellant concedes that an appeal from a judgment of conviction stays the execution of the sentence, but denies that the suspension of the license constitutes any part of the punishment for such offense, and asserts that it is mandatory upon the Highway Department to revoke the license of any person who has been convicted for driving an automobile while under the influence of intoxicating liquor. It is appellant's view that the word "convicted" as used in Section 46-348 was intended to mean a verdict of guilty and not a final judgment on appeal.
The difficulty in determining the question before us arises from the fact that the word "convicted" has no fixed and inflexible meaning. As applied to criminal offenses, it is used in varied senses. In Commonwealth v. Lockwood, 109 Mass. 323, it is said: "The ordinary legal meaning of `conviction,' when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while `judgment' or `sentence' is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained." But the word is also often used as including both the ascertainment of the guilt of the *269 accused and the judgment thereon by the Court. We had occasion to quote several definitions of the word "conviction" in Smith v. Todd, 155 S.C. 323, 152 S.E. 506, 50 A.L.R. 1529. Also, see South Carolina State Board of Dental Examiners v. Breeland, 208 S.C. 469, 38 S.E. (2d) 644, 167 A.L.R. 221. Various meanings of this word are discussed at length in the following cases: Snodgrass v. State of Texas, 67 Tex. Crim. R. 615, 150 S.W. 162, 41 L.R.A., N.S., 1144; State ex rel. Scott v. Cox, Mo., 243 S.W. 144; Quintard v. Knoedler, 53 Conn. 485, 2 A. 752. Also, see 13 C.J. 905, 18 C.J.S., Conviction, p. 97.
We shall assume that the word "convicted," as used in the statute under consideration, means not only a verdict of guilty but embraces the sentence of the court thereon, and proceed to determine whether the statute also contemplates, in the case of an appeal, the final judgment and disposition of the case and an end of the prosecution. No case involving this precise question is cited in the briefs. Our attention has been called to a line of cases construing the word "conviction" in statutes authorizing the disbarment of attorneys for conviction of crime. The decisions seem to be divided on the question as to whether an appeal so suspends the judgment in a criminal case that an attorney is not liable to be disbarred under such a statute pending the determination of an appeal from his conviction, but the weight of authority seems to be to the effect that there may be disbarment notwithstanding an appeal has been taken and is pending from the conviction. 7 C.J.S., Attorney and Client, § 21 (c); 5 Am. Jur., Attorneys at Law, § 282. It has also been held that under a statute which permits evidence of a conviction for a felony to be given as affecting the credibility of a witness, the taking of an appeal from a judgment of conviction does not annul it, so as to prevent evidence thereof from being given to affect the credibility of the convicted person, Hackett v. Freeman, 103 Iowa 296, 72 N.W. 528.
The cases relating to the subjects just mentioned, while to some extent analogous and helpful, are not decisive, for *270 the meaning of "convicted" when used in a statute is largely dependent upon the context, the subject matter and the purpose to be effected. The only decision which we have been able to find touching directly upon the question before us is Goulter v. Huse, 196 Wash. 652, 84 P. (2d) 126, 127. That case involved the construction of a Washington statute which authorized the Director of the Department of Licenses, in his sound discretion, to suspend the driver's license of any person whenever he had reason to believe that such person had committed certain offenses, of which driving under the influence of intoxicants was one. The appellant was convicted of this offense before a justice of the peace and appealed. Thereafter, the Director suspended his license for a period of one year. He immediately brought an action for the purpose of vacating this suspension and having his license restored, contending that the Director was without authority to suspend his license during the pendency of an appeal from his conviction. In denying the relief sought, the Court said:
"The appellant's argument appears to be based upon the hypothesis that, when the appeal was taken from the judgment of the justice of the peace to the superior court, that appeal `annulled or wiped out' the judgment of the justice, and, for this reason, the director did not have the authority to revoke the license or suspend it because of the conviction and without having made an independent investigation of his own.
"It is necessary, then, to determine what was the effect of the appeal to the superior court. It will be admitted that, when there is an appeal from the justice court to the superior court, the case is there tried de novo. When such an appeal is taken, it may result in the superior court dismissing it, and, if such be the result, the accused is subject to punishment under the judgment of conviction pronounced against him by the justice court. State v. Jones, 80 Wash. 335, 141 P. 700; State ex rel. Getman v. Webster, 193 Wash. 265, 75 P. (2d) 124.
*271 "From this it necessarily follows that, in this state, the appeal by the accused neither annuls nor wipes out the judgment of conviction. Such an appeal can only operate, under the holding of the cases cited, as a suspension of the operation of the judgment. Even though there was an appeal, there was a judgment of conviction upon which the director had a right to suspend the vehicle operator's license."
We now turn to the construction of our statute. It requires a report to be made within ten days to the State Highway Department of every conviction, plea of guilty or forfeiture of bail for driving a motor vehicle while under the influence of intoxicating liquor. Upon receipt of such report, it is mandatory upon the Department to suspend the license of the person so convicted. No discretion is allowed in the matter. Emmertson v. State Tax Commission, 93 Utah 219, 72 P. (2d) 467, 113 A.L.R. 1174. There is no requirement that notice be given to the holder of the license. The suspension follows as a consequence and effect of committing the offense. It is a forfeiture of the privilege to drive, due to the failure of the license to observe certain conditions under which the license was issued. The suspension constitutes no part of the punishment fixed by the court, nor is it an added punishment for the offense committed. It is civil and not criminal in its nature. Commonwealth v. Harris, 278 Ky. 218, 128 S.W. (2d) 579; Commonwealth v. Ellett, 174 Va. 403, 4 S.E. (2d) 762; Prichard v. Battle, 178 Va. 455, 17 S.E. (2d) 393, 396. In the last mentioned case, the Court said:
"The universal holding is that such a revocation is not an added punishment, but is a finding that by reason of the commission of the act or the conviction of the licensee, the latter is no longer a fit person to hold and enjoy the privilege which the State had theretofore granted to him under its police power. The authorities agree that the purpose of the revocation is to protect the public and not to punish the licensee."
*272 The foregoing authorities are to some extent supported by our own case of State v. Pope, 79 S.C. 87, 60 S.E. 234, where it was held that forfeiture of contraband liquors is not a part of the punishment imposed by a magistrate on one convicted of violating the liquor law.
Having concluded that the suspension of the license constitutes no part of the punishment for the offense of driving a motor vehicle while under the influence of liquor, it follows that the statute, Section 7-6 of the Code of 1952, providing that notice of appeal in a criminal case "shall operate as a stay of the execution of the sentence until the appeal is finally disposed of" has no application. It was held in State v. Prater, 27 S.C. 599, 4 S.E. 562, 563, that an appeal in a criminal case has no effect whatever upon the judgment which, until reversed, "stands unaffected by such appeal, except that it cannot be enforced by execution `until the appeal is finally disposed of'."
We think the word "convicted" as used in the statute under consideration contemplates only a verdict of guilty and sentence thereon, and was not intended to preclude the suspension of the license of the person so convicted until the determination of his appeal and an end of the prosecution. If the latter had been meant, undoubtedly some provision would have been made for notice to the Highway Department of appeals and their disposition. The statute has no such provision. It contains no reference to an appeal from a conviction. It was held in Bannister v. Shepherd, 191 S.C. 165, 4 S.E. (2d) 7, 11, that "an Appellant has no constitutional or other right entitling him to a supersedeas pending an appeal, in the absence of express statutory authorization."
Evidently the General Assembly concluded that a verdict of guilty on a charge of driving an automobile while under the influence of intoxicating liquor was alone sufficient to warrant the temporary withdrawal of the privilege to drive. Upon such conviction, there is no *273 longer a presumption of innocence. There then arises a "legal as well as laical presumption" that the conviction is just. State ex rel. Blake v. Levi, 109 W. Va. 277, 153 S.E. 587, 588. Such a presumption is not destroyed or abrogated by appeal. It was clearly competent for the Legislature to declare what effect a judgment of conviction should have from the time it was rendered. It will be noted that the General Assembly further concluded that the forfeiture of bail should have the same effect as conviction. Clearly such forfeiture of bail is entitled to no more weight than the conclusion of a jury or judge that a driver is beyond a reasonable doubt guilty of driving while under the influence of liquor. These precautions were no doubt taken as the result of the appalling loss of life and limb from automobile accidents. It may be of interest to note that in People v. Stryker, 124 Misc. 1, 206 N.Y.S. 146, the Court held constitutional, as against objection that punishment was imposed in advance of conviction, a statute providing for suspension, during the pendency of the prosecution, of the driver's license of any person charged with driving while intoxicated.
In conclusion, it must be conceded that the suspension of a person's license during the pendency of an appeal may occasionally work a hardship because such conviction may be reversed and ultimately the accused found innocent. But no doubt this possibility was given due consideration by the law-making body and weighed against the alternative of allowing every person convicted of driving a motor vehicle while under the influence of liquor to continue using the highways during the pendency of his appeal, the hearing and disposition of which may involve considerable delay. After all, as we have endeavored to point out, the suspension is not to punish the offender but to remove from the highways an operator who is a potential danger to others thereon.
The order of the Circuit Court is reversed; the complaint dismissed; and the suspension of respondent's license by the Highway Department is adjudged to be valid.
*274 STUKES and TAYLOR, JJ., and JAMES M. BRAILSFORD, JR., A.A.J., concur.
BAKER, C.J., concurs in result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319295/ | 78 S.E.2d 327 (1953)
238 N.C. 478
STATE TRUST CO.
v.
M & J FINANCE CORP. et al.
No. 162.
Supreme Court of North Carolina.
November 4, 1953.
*332 E. L. Loftin, Asheville, for defendant-appellant.
M. F. Toms, Hendersonville, for plaintiff-appellee.
WINBORNE, Justice.
Basically the appellant, M & J Finance Company, challenges the judgment from which appeal is taken, on the ground that the court erred in answering the first and fifth issues as indicated. It invokes, and undertakes to bring its case within the well settled principle of law stated and applied in Atlantic Discount Corp. v. Young, 224 N.C. 89, 29 S.E.2d 29, that a mortgagor left in possession of goods, which in contemplation of the parties, are to be disposed of by him in the ordinary course of trade, is the agent of the mortgagee to the extent that he may pass title to the goods, sold in the usual way to a purchaser, freed of the mortgage lien, Southern R. Co. v. W. A. Simpkins Co., 178 N.C. 273, 100 S.E. 418, 10 A.L.R. 731 and recently restated in Handley Motor Co. v. Wood, 237 N.C. 318, 75 S.E.2d 312, 316, in opinion by Parker, J., in this manner: "When the owner of personal property in any form clothes another with the apparent title or power of disposition, and third parties are thereby induced to deal with him, they shall be protected", citing authorites, including Atlantic Discount Corp. v. Young, supra.
However, applying this principle, this Court is of opinion, and holds that the evidence shown in the case on appeal is too susceptible of different interpretations and inferences to require a ruling, as a matter of law, that plaintiff, by its conduct, is estopped to deny the priority of the chattel mortgage asserted by defendant M & J Finance Company,the issue to which the fifth is directed.
The evidence, taken in the light most favorable to plaintiff, seems to make a case for a jury. While it is true that there is evidence tending to show that plaintiff had left the mortgaged automobiles in possession of Case, the mortgagor, to be disposed of in the ordinary course of trade, there is also evidence tending to show that, in the dealings between plaintiff and Case, the latter had no permission or authority to sell any automobile on which the plaintiff had a mortgage until it was paid off, nor did he have authority to collect any money for plaintiff. This raises question for fact finding.
And when the parties to a civil action waive trial by jury, as they may do, and agree that the presiding judge may find the facts in respect to the issues of fact raised by the pleadings, G.S. § 1-184, his findings of fact have the force and effect of a verdict by a jury upon the issues involved. N.C.Constitution Art. IV, § 13. And his findings of fact are conclusive on appeal, if there be evidence to support them. See Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351, where authorities are assembled. See also Briggs v. Briggs, 234 N.C. 450, 67 S.E.2d 349; Thompson v. Thompson, 235 N.C. 416, 70 S.E.2d 495; Ryan v. Wachovia Bank & Trust Co., 235 N.C. 585, 70 S.E.2d 853; Queen City Coach Co. v. Carolina Coach Co., 237 N.C. 697, 76 S.E.2d 47.
Applying this rule of practice the negative answer to the fifth issue is necessarily predicated upon a finding that Case was not vested with unrestricted power to sell the Buick automobile in question. Hence plaintiff had not waived the lien of its prior chattel mortgage. And the affirmative answer to the first issue follows as a matter of law.
Moreover, other assignments of error have been given due consideration, and, in view of the holding above, and the verdict on other issues, the matters to which such assignments of error relate become harmless.
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261076/ | 131 Cal. Rptr. 2d 313 (2003)
106 Cal. App. 4th 993
The PEOPLE, Plaintiff and Respondent,
v.
Alex SALINAS, Defendant and Appellant.
No. F038894.
Court of Appeal, Fifth District.
March 5, 2003.
As Modified March 18, 2003.
Review Granted May 21, 2003.
*314 Donal M. Hill, San Diego, 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, J. Robert Jibson and Raymond L. Brosterhous, Deputy Attorneys General, for Plaintiff and Respondent.
Certified For Partial Publication.[*]
OPINION
WISEMAN, J.
PROCEDURAL HISTORY
Alex Salinas (appellant) was charged in an amended information on January 18, 2001, with the following felony offenses: count 1, residential burglary (Pen.Code, §§ 459-60);[1] count 2, assault by means likely to produce great bodily injury (§ 245, subd. (a)); count 3, communicating terrorist threats (§ 422); count 4, dissuading a witness (§ 136.1, subd. (c)); count 5, battery with serious bodily injury (§ 243, subd. (d)); and count 6, corporal injury to a spouse/cohabitant (§ 273.5, subd. (a)).
Appellant entered not guilty pleas to the charges and jury trial began. Subsequently, counts 1, 2 and 4.were dismissed. Appellant was found guilty of count 6, corporal injury to a spouse/cohabitant, and not guilty of count 3, communicating terrorist threats, and count 5, battery with serious bodily injury.
Appellant was sentenced to two years in state prison and ordered to pay a restitution fine of $200 under section 1202.4, and a restitution fine of $200 pursuant to section 1202.45 was suspended. The court also imposed a $200 assessment to the Domestic Violence Fund under section 1203.097.
FACTUAL HISTORY
Kendra Verduzco and appellant began dating in late May or early June 2000 and began living together in her apartment beginning in June. The relationship ended in late September, and Verduzco was then pregnant with appellant's child. Appellant became involved with Marisela Cuevas and moved in with her almost immediately.
On the evening of October 15, 2000, Verduzco went to the fair and returned home around 1:45 a.m. Shortly after she went to bed, appellant entered her apartment by breaking one of the bedroom windows in an effort to obtain some papers verifying that Verduzco was pregnant. Cuevas followed appellant into the apartment.
Appellant entered Verduzco's bedroom and began to strike her. When she fled the room, he grabbed her hair and dragged her back. Appellant hit Verduzco *315 many times in the head and right ear with a closed fist and threw his shoulder and body weight into the punches. Verduzco became dizzy and blacked out. Appellant told Verduzco that if she did not find the paperwork he wanted, the lumps and pain she felt on her head would soon be felt on her stomach.
When appellant and Cuevas left, Verduzco called 911 to report the incident. She made a statement to the reporting officer about the attack. While the officer was with Verduzco, she received approximately six phone calls. In one call, a male voice Verduzco identified as appellant was heard to say, "I wasn't hitting you in the stomach, I only hit you in the head."
At the subsequent preliminary hearing, Verduzco described appellant's attack on her in similar terms to what she had reported earlier to the officer. Later, however, Verduzco's story changed. At trial, Verduzco testified she was still in love with appellant and wanted to pursue a relationship with him. Verduzco visited appellant while he was in jail, including Christmas Eve. She testified that her statement to the officer on the night of the incident and her testimony at the preliminary hearing were lies. Instead, Verduzco indicated that, although appellant and Cuevas did enter her apartment, Verduzco slapped appellant first before he slapped her in response. Verduzco told appellant and Cuevas to leave, which they did.
Although Verduzco admitted giving the officer a detailed description of the assault, she denied the details at trial. Verduzco testified she went to the hospital the morning after the incident due to ringing in her ears, which she told hospital personnel was because she had been slapped.
Cuevas testified after agreeing to a plea bargain in which charges against her were dismissed in exchange for a promise of truthful testimony. She and appellant went to Verduzco's apartment because appellant wanted some papers showing Verduzco was pregnant. Cuevas did not enter the apartment immediately after appellant entered, but could hear appellant and Verduzco arguing. Cuevas saw appellant grab Verduzco by the hair when Verduzco tried to go out the front door. She also saw appellant hit Verduzco at least twice on the side of her head.
An expert in the area of domestic violence testified generally concerning battered women's syndrome. He stated that it is very common for a domestic violence victim to recant an initial statement given to law enforcement and, generally, the first statement is truthful. Based on his experience, about 50 percent of all domestic violence victims recant. He opined that the victim's desire to reconcile with appellant after initially wanting prosecution of the case is consistent with this pattern.
Delia Zapata was called as a witness pursuant to Evidence Code section 1109. Zapata testified she had been married to appellant in July of 1999. At about midnight on July 6, 1999, appellant had been outside drinking alcohol with neighbors when she discovered her clothing was missing. Zapata went outside to ask appellant about her clothing. Appellant responded by cursing and grabbing her when she attempted to walk away. Appellant threatened to "stick" her, which she interpreted as a threat to stab her. The remark frightened Zapata, and she called the police.
Defense
A detective testified that when he contacted Verduzco three weeks after the incident, he saw no injuries. Cuevas was recalled and indicated that in her initial statement to officers, she described the *316 interaction between appellant and Verduzco as mutual "fighting."
DISCUSSION
1. Admission of evidence regarding battered women's syndrome
Appellant contends the expert testimony on battered women's syndrome (BWS) was improperly admitted because it was irrelevant absent a showing that the victim was a battered woman. Relying on People v. Humphrey (1996) 13 Cal. 4th 1073, 1084, 56 Cal. Rptr. 2d 142, 921 P.2d 1, People v. Gadlin (2000) 78 Cal. App. 4th 587, 92 Cal. Rptr. 2d 890, and People v. Gomez (1999) 72 Cal. App. 4th 405, 85 Cal. Rptr. 2d 101, appellant argues evidence of BWS requires, at a minimum, that Verduzco had been abused at least once before the current offense. In this case there is no evidence of any prior abuse to Verduzco. Absent this foundation, appellant argues the BWS evidence was improperly admitted. We disagree.
Evidence Code section 1107 makes BWS evidence admissible for a limited purpose. The statute provides:
"(a) In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding battered women's syndrome, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.
"(b) The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness. Expert opinion testimony on battered women's syndrome shall not be considered a new scientific technique whose reliability is unproven."
BWS evidence is admissible when there is "a contested issue as to which BWS testimony is probative. [Citation.]" (People v. Gadlin, supra, 78 Cal. App.4th at p. 592, 92 Cal. Rptr. 2d 890; Evid.Code, § 1107.) BWS evidence can be used in a variety of ways, all within limits defined by the statute. The purpose of BWS evidence, similar to the purpose of other types of syndrome evidence, is to dispel many commonly held misconceptions about victims of domestic violence. (People v. Morgan (1997) 58 Cal. App. 4th 1210, 1214, 68 Cal. Rptr. 2d 772.) Here, the evidence was introduced for the limited purpose of providing the jury with an explanation for why Verduzco would recant at trial her earlier statements made to police and given at the preliminary hearing.[2]
There is no question that when Verduzco changed her testimony, her credibility was placed at issue. General testimony *317 by an expert on the tendency of domestic violence victims to recant is necessary to disabuse the jury of a commonly held misperception that victims of crimes will not normally lie to protect the perpetrator. (People v. Williams (2000) 78 Cal. App. 4th 1118, 1129, 93 Cal. Rptr. 2d 356; People v. Morgan, supra, 58 Cal.App.4th at pp. 1215-1217, 68 Cal. Rptr. 2d 772; People v. Gadlin, supra, 78 Cal.App.4th at p. 594, 92 Cal. Rptr. 2d 890.) As the court in Williams and the expert testifying in Gomez noted, recanting is common even after a first incident and is not limited to cases in which abuse has extended over a significant period of time. (Williams, supra, at p. 1129, 93 Cal. Rptr. 2d 356; Gomez, supra, 72 Cal.App.4th at p. 411, 85 Cal. Rptr. 2d 101.)
In Gomez, supra, on which appellant relies, the Second District held that expert testimony of BWS is not relevant unless there is sufficient evidence that the victim is a battered woman. (People v. Gomez, supra, 72 Cal.App.4th at p. 407, 85 Cal. Rptr. 2d 101.) In Gomez, there was no evidence, except for the current incident, to indicate the victim was a battered woman. (Id. at p. 416, 85 Cal. Rptr. 2d 101.) Further, the rationale of Gomez was criticized by the Williams court. (People v. Williams, supra, 78 Cal.App.4th at p. 1129, 93 Cal. Rptr. 2d 356.) After considering the reasoning of both cases, we find that Williams is correctly decided. As noted in Williams, the language of the statute does not require foundational evidence of previous abuse. Williams, supra, 78 Cal.App.4th at p. 1129, 93 Cal. Rptr. 2d 356.) "There is nothing in Evidence Code section 1107 to suggest that the Legislature intended that a batterer get one free episode of domestic violence before admission of evidence to explain why a victim of domestic violence may make inconsistent statements about what occurred and why such a victim may return to the perpetrator." (Id. at p. 1129, 93 Cal. Rptr. 2d 356.)
As noted in Williams, the result in Gomez is inconsistent with the testimony of the expert in that case, Gail Pincus. Pincus testified as follows:
"[A]bout 80 percent of the time a woman who has been `initially assaulted' by a boyfriend, husband or lover will recant, change or minimize her story. This recanting does not happen only after there has been a continuing pattern of abuse. In fact, depending on the severity of the incident, it is more likely to occur after a first incident. Pincus stated a woman will tend to minimize and deny the incident. The woman will engage in `selfblam[e]' and `sort of reconstruct ] th[e] incident, especially if th[e] relationship is going to continue. It's the most common [reaction] of anybody who's been victimized in an intimate relationship.'" (People v. Gomez, supra, 72 Cal.App.4th at pp. 411-412, 85 Cal. Rptr. 2d 101, italics added.)
People v. Humphrey, supra, 13 Cal. 4th 1073, 56 Cal. Rptr. 2d 142, 921 P.2d 1, on which appellant also relies, cannot be used to support the conclusion appellant suggests. First, Humphrey did not decide whether BWS evidence could be admitted in the absence of evidence of prior abuse. Instead, Humphrey decided whether BWS evidence was relevant at all to a claim of self defense. (Roberts v. City of Palmdale (1993) 5 Cal. 4th 363, 372, 20 Cal. Rptr. 2d 330, 853 P.2d 496 [cases are not authority for propositions they do not consider].)
Second, the use of BWS evidence in Humphrey is substantially different from its use here. In Humphrey, the evidence was used to prove the reasonableness of the defendant's claim of self defense, in light of her past history of abuse at the *318 hands of the victim. The defendant in Humphrey claimed the extended history of abuse led her to believe she was in imminent danger and needed to loll her husband in self defense. Whether this belief was reasonable was the issue presented to the jury and to which the BWS evidence was directed. (People y. Humphrey, supra, 13 Cal.4th at pp. 1088-1089, 56 Cal. Rptr. 2d 142, 921 P.2d 1.)
Lastly, People v. Gadlin, supra, 78 Cal. App. 4th 587, 92 Cal. Rptr. 2d 890, on which appellant relies, is also not helpful. Gadlin, decided by another division of the Second Appellate District, upholds the admissibility of BWS evidence on the issue of victim credibility, but does not hold that a prior history of violence is a prerequisite to admission of such testimony. The victim and abuser in Gadlin had a two-and-one-half year troubled relationship with two distinct, well-corroborated incidents of armed assault, as well as the victim's assertion that the defendant constantly terrorized her and her children. (People v. Gadlin, supra, 78 Cal.App.4th at pp. 593-594, 92 Cal. Rptr. 2d 890.)
Here, the focus was not on any past abuse and its impact on the victim's fear, but rather on why a victim might recant after being abused by an intimate partner. The trial court properly admitted evidence of BWS for that limited purpose.
II.-VI.[**]
DISPOSITION
The $200 fine imposed pursuant to section 1203.097 is ordered stricken. In all other respects, the judgment is affirmed.
We Concur: DIBIASO, Acting P.J, and BUCKLEY, J.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, only the Procedural and Factual Histories, part I of the Discussion, and the Disposition are certified for publication.
[1] All further statutory references will be to the Penal Code unless otherwise stated.
[2] The jury was instructed with CALJIC No. 9.35.1, which states: "Evidence has been presented to you concerning battered women's syndrome. This evidence is not received and must not be considered by you to prove the occurrence of the act or acts of abuse which form the basis of the crimes charged. [¶] Battered women's syndrome is based upon an approach which is completely different than the approach you must take in this case. The syndrome research begins with an assumption that physical abuse has occurred and seeks to describe and explain common reactions of women to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The people have the burden of proving guilt beyond a reasonable doubt. [¶] You should consider the evidence for certain limited purposes only. Namely, that the alleged victim's reactions as demonstrated by the evidence are not inconsistent with her having been physically abused."
[**] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261088/ | 131 Cal. Rptr. 2d 330 (2003)
106 Cal. App. 4th 1131
In re DAVID H., A Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
David H., Defendant and Appellant.
No. B156841.
Court of Appeal, Second District, Division Eight.
February 6, 2003.
Doris S. Browning, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Shawn McGahey Webb, Deputy Attorney General, for Plaintiff and Respondent.
BOLAND, J.
SUMMARY
Appellant David H. appeals from the juvenile court's order sustaining a petition under Welfare and Institutions Code section 602. He contends the court erred in calculating the maximum confinement time by including time for stayed counts of two previously sustained petitions. We agree.
FACTUAL AND PROCEDURAL BACKGROUND
On October 15, 2001, the People filed a Welfare and Institutions Code section 602 petition ("current petition") alleging appellant escaped from a juvenile facility in July 2001. The petition notified appellant that the People sought to have him confined on all sustained counts of this petition and previously sustained petitions with detention time remaining. Appellant admitted the allegations of the petition, which the court found to be true.
The juvenile court maintained appellant's status as a ward of the court and committed him to the California Youth Authority. The court declared his maximum confinement term to be six years two *331 months based upon an aggregation of terms for each count of four previously sustained petitions and a four-month term for the current petition.
DISCUSSION
When a juvenile court sustains criminal violations resulting in an order of wardship (Welf. & Inst.Code § 602), and removes a youth from the physical custody of his parent or custodian, it must specify the maximum confinement term, i.e., the maximum term of imprisonment an adult would receive for the same offense. (Welf. & Inst.Code, § 726.) Welfare and Institutions Code section 726 permits the juvenile court, in its discretion, to aggregate terms, both on the basis of multiple counts, and on previously sustained section 602 petitions in computing the maximum confinement term. (In re Adrian R. (2000) 85 Cal. App. 4th 448, 454, 102 Cal. Rptr. 2d 173.) When aggregating multiple counts and previously sustained petitions, the maximum confinement term is calculated by adding the upper term for the principal offense, plus one-third of the middle term for each of the remaining subordinate felonies or misdemeanors. (Welf. & Inst. Code, § 726; Pen.Code, § 1170.1, subd. (a); In re Deborah C. (1981) 30 Cal. 3d 125, 140,177 Cal. Rptr. 852, 635 P.2d 446.)
The juvenile court calculated appellant's maximum confinement term for the current petition as follows: the principal term of three years for count one of the previously sustained May 11, 1999 petition ("May 1999 petition"), plus subordinate terms of eight months for count two of the May 1999 petition, eight months for count one of the previously sustained November 14, 2000 petition ("November 2000 petition"), eight months for count two of the November 2000 petition, eight months for count two of the previously sustained December 15, 2000 petition, two months for count one of the previously sustained September 10, 2001 petition, and four months for the sole count of the current petition.
Appellant contends the juvenile court erred by including subordinate terms for count two of the May 1999 petition and count two of the November 2000 petition. He argues that because the courts adjudicating each of those prior petitions calculated the maximum confinement term on the basis of only one count, they must have intended to stay the sentence on the remaining count under Penal Code section 654, which prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal. 4th 1203, 1208, 23 Cal. Rptr. 2d 144, 858 P.2d 611.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (Ibid.) If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal. 3d 321, 335, 256 Cal. Rptr. 401, 768 P.2d 1078.)
Resolution of appellant's contention requires a review of the history of the previously sustained May 1999 and November 2000 Welfare and Institutions Code section 602 petitions. The May 1999 petition included two counts. The first count alleged appellant violated Penal Code section 496, subdivision (a) by receiving a stolen Visa card. The second count alleged appellant violated Penal Code section 484e, subdivision (c) by retaining an access card with the intent to defraud and to use, sell, or transfer the card to someone other than its *332 owner or issuer.[1] The court sustained the petition; declared the offense, without specification of count, was a felony; and ordered appellant suitably placed for a maximum confinement term of three years. The sentencing range for count one was 16 months, 2 years, or 3 years. (Pen.Code, §§ 18, 496.) Because a violation of Penal Code section 484e, subdivision (c) constituted petty theft, the maximum confinement period for count two was six months.[2] (Pen.Code, §§ 484e, subd. (c); 490.)
The November 2000 petition also included two counts. The first count alleged appellant conspired to commit grand theft auto, while the second count alleged attempted grand theft auto.[3] Appellant pled no contest, and the court found the petition was true. It declared both counts were felonies and sent appellant to camp. The court calculated the maximum term of confinement at three years. The sentencing range for the first count was 16 months, 2 years, or 3 years, while the range on the second count was 8 months, 1 year, or 18 months. (Pen.Code, §§ 18, 182, 489, 664.)
Applying the general presumption of correctness with respect to the maximum confinement terms declared by the courts presiding over proceedings stemming from the May 1999 and November 2000 petitions, we infer that the courts were aware of and made their calculations in keeping with the applicable law. (People v. Coddington (2000) 23 Cal. 4th 529, 644, 97 Cal. Rptr. 2d 528, 2 P.3d 1081, overruled on other grounds in Price v. Superior Court (2001) 25 Cal. 4th 1046, 108 Cal. Rptr. 2d 409, 25 P.3d 618.) Thus, the courts did not simply make up a term for each count in the petition and arrive at a total of three years. They necessarily applied the formula required by Welfare and Institutions Code section 726 and Penal Code section 1170.1, subdivision (a). With respect to each of the petitions, the formula would lead to a maximum confinement term in excess of three years if the court aggregated time for both counts in the petition. On the May 1999 petition, the maximum confinement term would be three years two months: three years as the principal term for count one, plus one-third of the six-month term, i.e., two months, as a subordinate term for count two. The court's calculation of a three-year maximum confinement necessarily indicates it did not include any time for the second count in the petition. Similarly, for the November 2000 petition, the maximum confinement term would be three years four months: three years as the principal term on count one or two, plus one-third of the one-year middle term, i.e., four months, as a subordinate term for the other count. The three-year maximum confinement term specified by the court reveals that it did not include any time for one of the two counts in the petition. Each court could permissibly do so if it either found one of the counts was subject to a Penal Code section 654 stay or, in its discretion, decided *333 not to aggregate time for both counts, thereby effectively treating the terms on the two counts as concurrent. The minute orders do not reveal which explanation is correct, and the record on appeal does not include the reporter's transcript for proceedings on the May 1999 or November 2000 petitions.
In any event, it is clear the courts presiding over the May 1999 and November 2000 petitions determined the maximum confinement term for each petition should be based upon only one of the two counts. The courts had before them the facts regarding appellant's conduct, attitude and demeanor at or near the time of the charged criminal violations. The courts were properly entrusted with the sentencing-type decisions involved in determining appropriate dispositions and calculating the maximum confinement terms. Following the presumption of correctness, we accept their calculations as properly made, in accordance with the law.
Respondent has cited, and we have found, no authority permitting a later redetermination of the maximum confinement time for a previously sustained petition. Respondent cites In re Adrian R., supra, 85 Cal. App. 4th 448, 102 Cal. Rptr. 2d 173, and In re Ronnie P. (1992) 10 Cal. App. 4th 1079, 12 Cal. Rptr. 2d 875, for the proposition that the juvenile court properly considers a youth's entire history and re-examines the entire dispositional picture each time the youth comes before it. The actions of the juvenile court in this case, however, went beyond considering the entire history or re-examining the "dispositional picture" to arrive at a suitable disposition. It effectively reached back into time and altered another court's conclusion regarding the maximum term of imprisonment that could be imposed upon an adult convicted of the same offenses. Neither of the cases cited by respondent involved alteration of a prior court's maximum confinement term calculation for a previously sustained petition. In re Adrian R., supra, 85 Cal. App. 4th 448, 102 Cal. Rptr. 2d 173, addressed the juvenile court's power to place a youth in camp through the aggregation of a current sustained Welfare and Institutions Code section 602 petition for an offense punishable only by a fine with a prior sustained section 602 petition for an offense punishable by incarceration. The court did not recalculate the maximum confinement period established by the juvenile court adjudicating the original petition, but used that term as the maximum confinement period for the newly sustained petition. In In re Ronnie P., supra, 10 Cal. App. 4th 1079, 12 Cal. Rptr. 2d 875, the court adjudicating a Welfare and Institutions Code section 777 petition imposed a previously "stayed" Youth Authority commitment in response to a youth's escape from his prior placement. The appellate court found the evidence insufficient to sustain a section 777 petition and held the juvenile court erred by reflexively imposing a predetermined disposition without reviewing the entire dispositional picture. The court did not recalculate the maximum term of confinement for the prior sustained petition. Accordingly, neither of the cases cited by respondent authorizes the recalculation performed by the juvenile court in the present case.
Welfare and Institutions Code section 775, upon which Respondent also relies, permits modification, at any time, of any order made by a juvenile court, but notice of an application for such a modification must be given. Even assuming that a calculation of a maximum confinement term for a previously adjudicated petition were subject to change under section 775, no application for a modification or notice of such an application appears in the record of this case. Accordingly, section 775 *334 does not support the juvenile court's recalculation.
The applicability of Penal Code section 654 is properly determined by the juvenile court that adjudicates and sustains a petition against a youth. (People v. Wiley (1995) 9 Cal. 4th 580, 590, 38 Cal. Rptr. 2d 347, 889 P.2d 541.) The same must also be true of a court's discretionary decision whether to aggregate time on multiple sustained counts in calculating the maximum confinement term, as the evidence and circumstances pertinent to the exercise of the discretion are known to that court at that time. While a court adjudicating a subsequent petition must re-examine the "entire dispositional picture" to select an appropriate disposition, it lacks the first-hand view of the facts and circumstances supporting the earlier court's decisions and may not reevaluate the prior court's conclusions regarding the truth of prior petitions, the applicability of Penal Code section 654, or the appropriateness of aggregating time on multiple sustained counts in determining the maximum confinement time. While the later court has the power to impose a different disposition and aggregate unserved time from prior sustained petitions, it may not recalculate the maximum confinement time for a previously determined petition.
In the present case, the juvenile court's task was complicated by the absence of any indication in the orders pertaining to the May 1999 and November 2000 petitions that the judicial officers adjudicating those petitions found Penal Code section 654 applicable or decided not to aggregate time for each separate count in determining the maximum confinement term. However, by comparing the maximum confinement period against the result obtained by applying the formula required by Welfare and Institutions Code section 726 and Penal Code section 1170.1, subdivision (a), the court below could easily have determined that it could not include separate terms for each count of those petitions. The court's error in including a separate term for each count requires that appellant's maximum term of confinement for the current petition be reduced by 16 months.
Given our conclusion that no time could be added for count two of the May 1999 petition, we need not address the error noted by respondent, i.e., that the court should have included only a two-month term for that count, not eight months.
DISPOSITION
The maximum term of physical confinement is reduced to 4 years 10 months. In all other respects, the judgment is affirmed.
We concur: COOPER, P.J., and RUBIN, J.
NOTES
[1] The probation report prepared in conjunction with the May 1999 petition indicates that both counts pertained to the same credit card.
[2] The juvenile court presiding over the current petition apparently believed a violation of Penal Code section 484e, subdivision (c), was subject to the 16 months, 2 years, or 3 years triad. In fact, it is a misdemeanor punishable by a maximum of 6 months. When aggregating a subordinate term for misdemeanor under Welfare and Institutions Code section 726, a juvenile court should add one-third of the maximum term for the misdemeanor. (In re Deborah C, supra, 30 Cal.3d at p. 140, 177 Cal. Rptr. 852, 635 P.2d 446.)
[3] The probation report prepared in conjunction with the November 2000 petition indicates that each count pertained to a different car. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261103/ | 130 Cal. Rptr. 2d 734 (2003)
106 Cal. App. 4th 39
MITSUBISHI MATERIALS CORPORATION et al., Petitioners,
v.
The SUPERIOR COURT of Orange County, Respondent;
Frank H. Dillman et al., Real Parties in Interest.
No. G030056.
Court of Appeal, Fourth District, Division Three.
February 6, 2003.
As Modified March 7, 2003.
Review Granted April 30, 2003.
*735 Morrison & Foerster, Kathleen V. Fisher, Arne D. Wagner and H. Mark Mersel, Irvine, for Petitioners.
Robert D. McCallum, Jr., Assistant Attorney General of the United States, John S. Gordon, United States Attorney; Mark Stern, Douglas Hallward-Driemeier, Kathleen Kane, United States Department of Justice; James G. Hergen and Lara A. Ballard, United States Department of State, for the United States of America as Amicus Curiae on behalf of Petitioners.
No appearance for Respondent.
Herman, Mathis, Casey, Kitchens & Gerel, David S. Casey, Jr., and Bonnie E. Kane, San Diego, for Real Parties in Interest.
Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Louis Verdugo, Jr., Senior Assistant Attorney General, Catherine Z. Ysrael, Supervising Deputy Attorney General, and *736 Angela Sierra, Deputy Attorney General, for the State of California as Amicus Curiae on behalf of Real Parties in Interest.
OPINION
SILLS, P.J.
I
Before us are claims by surviving American prisoners of war against a number of Japanese companies for whom they were forced to do slave labor during World War II. It is a remarkable case, one in which the Attorney General of the United States and the Attorney General of the State of California are on opposite sides.
The immediate cause of the litigation is a recent change to our state law which was intended to allow "Second World War slave labor" victims to bring a lawsuit to recover compensation under state law for their labor against private companies who benefited by that labor during the war. (Code Civ. Proc, § 354.6.) The legislation actually creates a state law claim which would not otherwise exist,[1] or if it ever did exist, would have been long since barred by the statute of limitations.[2] Our state Attorney General seeks to uphold the law against the federal Attorney General's argument that all claims by American nationals against Japanese nationals were settled in the 1951 peace treaty that formally ended World War II between the United States and Japan. (Multilateral Treaty of Peace with Japan, Sept. 8, 1951, 3 U.S.T. 3169, T.I.A.S. No. 2490 (Peace Treaty).
The plaintiffs here are survivors of Japanese prisoner of war camps who have brought this lawsuit against a group of Japanese companies, mainly Mitsubishi and Mitsui, for whom they were forced to work in World War II. The trial court overruled the demurrers of the Mitsui companies and denied the motion for judgment on the pleadings brought by the Mitsubishi companies.
Regrettably, as we explain below, the federal government has the better part of the argument regarding the effect of the treaty. Simply put, it precludes this lawsuit from going forward.[3]
*737 Ordinarily appellate courts are reluctant to entertain writ proceedings based on erroneously overruled demurrers or improperly denied judgments on the pleadings. However, because the plaintiffs are World War II veterans, we issued an order to show cause so that the merits of the argument regarding the effect of the treaty could be expeditiously considered. It would be a disservice to these heroes of World War II to create the false hope of some sort of monetary recovery by permitting a lengthy trial only to reverse the judgment years later because federal law, as expressed in the treaty, required it.
However, the very process of explaining the effect of the treaty also requires that we recognize the sacrifice of these plaintiffs. That sacrifice deserves to be explicitly recognized by the judiciary of this country, regardless of the validity of the legal claims they are now making, indeed, all the more so in light of our determination that the 1951 treaty precludes this lawsuit. The unique circumstances of this case, including the special nature of the plaintiffs' claims arising out of a world war, compel the conclusion that these plaintiffs be given a forthright, honest explanation why their government waived their rights to seek redress in American courts against the companies that benefited from their slave labor.
II
We must begin by acknowledging the obvious: This case involves a treaty made by the federal government of the United States, and it is binding on us as a state court. In fact, the Constitution specifically mentions state courts in making treaties the "supreme Law of the land." Article 6, clause 2 of the United States Constitution provides that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." As a treaty it therefore trumps any law of the State of California.
While treaty analysis obviously begins with the text of the treaty itself (e.g., El Al Israel Airlines, Ltd. v. Tseng (1999) 525 U.S. 155, 167, 119 S. Ct. 662, 142 L. Ed. 2d 576), federal and state courts regularly look to the historical context of a treaty to elucidate its meaning, particularly where any terms are ambiguous or where the treaty is silent on a point. (E.g., Hosaka v. United Airlines, Inc. (9th *738 Cir.2002) 305 F.3d 989, 998 [because Warsaw Convention was silent on the availability of the doctrine of forum non conveniens, court considered historical context in which particular amendment had been offered]; Bruguier v. Class (S.D.1999) 599 N.W.2d 364, 374-375 [looking to historical context of treaty to determine whether a particular Indian reservation would continue].)
Because "`[t]reaties are construed more liberally than private agreements, ... to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.'" (Air France v. Saks (1985) 470 U.S. 392, 396, 105 S. Ct. 1338, 84 L. Ed. 2d 289; accord Chan v. Korean Air Lines (1989) 490 U.S. 122, 134, 109 S. Ct. 1676, 104 L. Ed. 2d 113 [recognizing that drafting history may be consulted to shed light on ambiguous text of treaty (opinion by Scalia, J.) ].) Even plain language must be viewed in its historical context. (Oregon Dep't of Fish and Wildlife v. Klamath Indian Tribe (1985) 473 U.S. 753, 774, 105 S. Ct. 3420, 87 L. Ed. 2d 542 ["even though `legal ambiguities are resolved to the benefit of the Indians,' ... courts cannot ignore plain language that, viewed in historical context and given a `fair appraisal,' ... clearly runs counter to a tribe's later claims"]; see also Curry v. U.S. Forest Service (W.D.Pa.1997) 988 F. Supp. 541, 548 [noting that historical context of migratory bird treaty further demonstrated the intent of the treaty beyond its text not to apply to the federal government itself].)
In the present case, historical context is particularly important because it eliminates doubt in the language as to whether the treaty was intended to cover the claims of American POWs against private Japanese companies. Specifically, there are a number of places where the 1951 treaty is either vague (in the sense that people of ordinary intelligence have to guess at the meaning of words) or ambiguous (in the sense that words have multiple meanings), and consequently in need of clarification by reference to the surrounding circumstances under which the agreement was made.
One, in Article 14(b) of the treaty, the victorious Allied nations "waive" claims of "their nationals" arising out of the "prosecution" of the war against Japan and Japanese "nationals." (Peace Treaty, supra, 3 U.S.T. at p. 3183.) According to the plaintiffs, the word "waive" should not be construed to extinguish actions brought in American state courts under state law because the reference to the claims of the Allied Powers and their nationals necessarily implicates international claims only. Along those same lines, the reference to Japanese "nationals" raises the question of whether the word should be construed to include corporate entities, such as the defendants here, which have, in the post-war era, grown into large multinational corporations.
Also, Article 14(b) uses the phrase "prosecution of the war." (Peace Treaty, supra, 3 U.S.T. at p. 3183.) According to the plaintiffs, the word "prosecution" should not be interpreted to include actions which are contrary to international law. In particular, they point out that while the 1929 Geneva Convention (specifically Article 31) allowed POWs to be forced to do labor, that labor cannot have any connection with the operation of the war (such as putting POWs to work making munitions). They reason that since their own labor was in connection with the Japanese war effort, it was "illegal" under the Geneva Convention and therefore not part of the "prosecution" of the war.
Further, as plaintiffs strenuously point out, Article 14where Allied claims are waiveddoes not parallel Article 19 where the Japanese waive their claims against the Allied powers and their nationals. (Peace Treaty, supra, 3 U.S.T. at pp. *739 3187, 3188.) What's more, the Japanese waiver in Article 19 contains a specific reference to Japanese POWs, yet the Allied waiver in Article 14 contains no specific reference to Allied POWs. For the plaintiffs, the asymmetry is itself significant, in that it shows that the claims of Allied POWs, unlike the claims of Japanese POWs, were not being waived.
A
The proper place to begin is with the sufferings endured by Americans taken prisoner by the Japanese in World War II, for those sufferings surely gave them many claims.
Most of the plaintiffs were taken prisoner in the spring after the surrender of Bataan in April 1942.[4] Then came the infamous "Bataan Death March," where prisoners, most weak and ill, were prodded by bayonets to march in the tropical heat for six days and nights with hardly any food and water.[5] If they failed to keep up they were run through.
The prisoners were eventually put into "hell ships" to be taken to Japan. POW ships are supposed to be marked, so that one side does not attack its own nationals. The hell ships, however, were unmarked, and in fact a number were sunk by American submarines en route to Japan.[6]
The conditions were horrendous, and bespoke gratuitous cruelty. The prisoners were packed like sardines into hatches, which were always sealed; sick prisoners could not get air. Typically the prisoners were not allowed to empty the oilcans used as latrines more than twice a day, despite the fact that most of them were suffering from diarrhea, and the cans were overflowing.[7]
Once in Japan, the prisoners were forced into slave labor for private Japanese companies (usually mining) that supplied the Japanese war effort. As the plaintiffs themselves now point out, the use of that forced labor was contrary to clearly established international law regarding the use of the labor of prisoners of war.[8]
The experience of Frank Bigelow, a veteran of Corregidor, was typical: "Everyday the Japanese Army delivered us to a coal mine owned by Mitsui, one of the biggest business conglomerates in Japan, and we were their slave labor. Mitsui Mining was right up there in front and we were told to work or dielong hours, *740 short rations. Usually, tiny portions of rice and seaweed soup could barely sustain us as we were doing physical, heavy labor. I was skin and bones, and at 6 foot, 4 inches, I weighed just 95 pounds."[9]
There were constant beatings, which would increase whenever the United States won an important battle.[10] Over 11,000 of the approximately 27,000 Americans captured and interned by the Japanese military during World War II died. Chinese prisoners of war fared even worse. Of the tens of thousands captured, at war's end Japanese authorities acknowledged having only 56 Chinese prisoners.[11]
The enslavement of American POWs to benefit the Japanese war effort and private Japanese companies was well known after the War. In 1947, the British held war crime trials in Hong Kong, indicting civilian employees of the Nippon Mining Company for the maltreatment of prisoners of war forced to labor in the Kinaseki Mine in Formosa. Eight of the nine were found guilty and sentenced to various terms of imprisonment.[12]
Then there was the post-war prosecution in American courts of Tomoya Kawakita for treason. Kawakita was an American citizen who had been hired to work for a private mining company interpreting communications with POWs who were "mostly from Bataan" and who were forced to work in his company's mines. (See Kawakita v. United States (1952) 343 U.S. 717, 737, 72 S. Ct. 950, 96 L. Ed. 1249.) Kawakita returned to the United States in 1946, but was recognized by former American POWs, arrested, and tried for treason. (Id. at p. 721, 72 S. Ct. 950.) Reviewing the evidence, the federal district court had said in 1950 that by "his brutal, slave-driving tactics," Kawakita had "added many tons of nickel ore to Japan's war effort that never otherwise would have been mined or smelted by American prisoners of war." (United States v. Kawakita (S.D.Cal.1950) 96 F. Supp. 824, 837.)
After the war, Japanese-owned assets in the United States and its territories were seized by the Office of Alien Property, which operated under the auspices of the United States Justice Department. State Department estimates place the total amount seized at about $90 million.[13] The proceeds were placed in a War Claims Fund for ultimate distribution to the POWs.[14] It amounted to $1.00 a day for *741 missed meals and $1.50 per day for lost wages.[15]
B
We now turn to the circumstances under which the treaty was made.
When most Americans think of the end of the war with Japan they think of the formal surrender ceremony on the battleship Missouri that took place in September 1945 shortly after the bombing of Hiroshima and Nagasaki. Most do not realize that it was not until the early 1950's, in the midst of another war, that the treaty formally ending World War II with Japan was finally negotiated and concluded.
There can be no doubt that the Korean War gave a special impetus to concluding the treaty with Japan. The main theme of President Truman's opening address to the conference on the Japanese Peace Treaty, held at the same San Francisco opera house where the United Nations was founded was the need to "restore" a sovereign Japan to the company of American allies so that it could help serve as a bulwark against Communist aggression in Korea. (See Public Papers of the Presidents of the United States Harry S. Truman, 1951 (U.S. Gov. Printing Office 1965) at pages 504 through 508 (hereinafter Truman Papers).)
In his address Truman recounted the changes which had occurred in Japan in the short span of six years. The secret police had been abolished. The Japanese people had a new constitution with a bill of rights. Universal suffrage had been established. There were now free and independent labor unions. It was time "to restore full sovereignty to the Japanese people." (Truman Papers, supra, at p. 505.)
Truman then stressed the urgency of the task by alluding to recent military offensives launched in Korea. "Unfortunately, today, the world is faced with new threats of aggression. Many of the countries represented here are now engaged in a hard fight to uphold the United Nations against international lawbreaking. There are thugs among nations, just as among individuals." (Id. at p. 504.)
Truman also spoke about the subject of reparations, in words that have particular significance to the case at bar. He reminded his audience that the United States had not forgotten Bataan (Truman Papers, supra, at p. 505). But he juxtaposed that thought with another one, going in the opposite direction: The new treaty did not "contain the seeds of another war." (Truman Papers, supra, at p. 506.) The tenor of Truman's remarks was that Japan was being welcomed into the company of Allied nations despite what had happened during World War II.
The reference to "seeds of another war" was an obvious allusion to the Versailles treaty that had ended World War I. John Foster Dulles, the chief American negotiator of the treaty that ended World War II with Japan, had himself been at the Versailles negotiations, and had in fact served on the Reparations Commission.[16] Historians, of course, may debate the causes of World War II forever, and in particular the role heavy reparations against Germany *742 may have played.[17] We need not enter that fray. However, it is clear that the key American decisionmaker involved in the treaty, John Foster Dulles, accepted the conventional wisdom of his day that heavy reparations against Germany had played a major part in bringing about the rise of Hitler and the subsequent war.[18]
The need to spare the Japanese economy from heavy reparations was also a major reason the Senate Foreign Relations Committee was willing to go along with the treaty. In its report recommending approval of the treaty, the committee said: "Obviously insistence upon the payment of reparations in any proportion commensurate with the claims of the injured countries and their nationals would wreck Japan's economy, dissipate any credit that it may possess at present, destroy the initiative of its people, and create misery and chaos in which the seeds of discontent and communism would flourish." (Sen.Rep. No. 82-2, 2d Sess.(1952), emphasis added.)
C
Besides the need to cultivate Japan as an American ally against Communist aggression and the concomitant need to protect its economy from heavy reparations, there was another motivating force for the 1951 treaty, though not one mentioned by Truman: The danger of a cycle of recriminations *743 when each side perceives itself to have been the object of grievous wrongs. There was a need for a mutual release of war claims to assure lasting peace.
We have already mentioned the suffering of American prisoners of war endured at the hands of the Japanese Army and at the hands of private Japanese companies. What we have not mentioned to this point is that the Japanese felt that they too had claims. Few Americans are aware that in 1963 a Japanese court, in what has become known as the Shimoda case, held that the United States had violated international law by bombing Hiroshima and Nagasaki.[19] Regardless of whether one agrees with that decision (in fact, in an ironic twist, in the Shimoda case the Japanese government took the American side and argued that the United States hadn't violated international law), the main significance of the case for our purposes is what the court actually did. It found against the plaintiffs because even though the Shimoda court was willing to say that the United States had violated international law, it also said that Japan had waived the right of its nationals to recover against the United States because of the 1951 treaty.
The use of nuclear weapons at Hiroshima and Nagasaki and the treatment of American POWs in Japan were not unrelated events. In fact, one of the main reasons given by President Harry S. Truman for the use of nuclear weapons on Hiroshima and Nagasaki was the mistreatment of American prisoners of war. In a radio address to the American people on the very day of the Nagasaki bombing,[20] Truman said: "Having found the bomb we have used it. We have used it against those who attacked us without warning at Pearl Harbor, against those who have starved and beaten and executed American prisoners of war, against those who have abandoned all pretense of obeying international laws of warfare."
Without a waiver of all war crime claims that could have been brought by either side, Japan and the United States might have wrangled endlessly about liabilities arising out of the war.[21]
*744III
A
With that context as a backdrop, we now turn to the text of the treaty itself. The actual language of a treaty is, after all, the ultimately dispositive source of judicial decisionmaking. (E.g., Chan v. Korean Air Lines, supra, 490 U.S. at p. 134, 109 S. Ct. 1676 ["We must thus be governed by the text...."].)
Allied prisoners of war were the subject of Article 16 of the treaty. That provision states: "As an expression of its desire to indemnify those members of the armed forces of the Allied Powers who suffered undue hardships while prisoners of war of Japan, Japan will transfer its assets and those of its nationals in countries which were neutral during the war, or which were at war with any of the Allied Powers, or, at its option, the equivalent of such assets, to the International Committee of the Red Cross," which would "liquidate such assets and distribute the resultant fund to appropriate national agencies, for the benefit of former prisoners of war and their families on such basis as it may determine to be equitable." (Peace Treaty, supra, 3 U.S.T. at p. 3185.)
Article 14 covered the subject of Allied claims against Japan and is at the center of the current controversy. Article 14 begins by explicitly recognizing that Japan couldn't pay for all the damages and suffering it had caused: "It is recognized that Japan should pay reparations to the Allied Powers for the damage and suffering caused by it during the war. Nevertheless it is also recognized that the resources of Japan are not presently sufficient, if it is to maintain a viable economy, to make complete reparation for all such damage and suffering and at the same time meet its other obligations." (Peace Treaty, supra, 3 U.S.T. at p. 3180, emphasis added.)
The next paragraph, Article 14(b) contains the waiver language. Here is its complete text: "Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war, and claims of the Allied Powers for direct military costs of occupation." (Peace Treaty, supra, 3 U.S.T. at 3183, emphasis added.)
B
In light of the historical circumstances mentioned above, a number of the questions inherent in the text of Article 14(b) are readily resolved. The United States government was fully aware of the heinous treatment of American POWs; Truman had, in fact, justified the use of atomic weapons precisely because of that treatment. Recompensing the POWs would be ruinous to the Japanese economy, as recognized by Truman in his speech and by the Senate Foreign Relations Committee report, and impliedly in the first part of Article 14 which stressed the need to develop a viable Japanese economy. It logically follows that even allowing POWs to pursue private claims against the large Japanese companies who had exploited their labor would be ruinous as well. An economy dominated by these "zaibatsu" would suffer greatly if they could be subjected to such claims, particularly if litigated *745 in American courts in front of American juries. These were large companies, dominating the Japanese economy. To allow claims against them would stifle whatever prospects there were for a prosperous Japan in the post-war world.
By the same means the argument that POW claims for forced labor did not arise in the course of the "prosecution" of the war effort is resolved as well. It may not have been legal to force American POWs to do work for the Japanese war effort, but it surely created "other claims" which, if litigated and properly compensated in American courts, would have a devastating effect on the Japanese economy. It bears repeating in this regard that the plaintiffs were members of the American armed forces taken prisoner by the Japanese Army after Pearl Harbor during the war in the Pacific. All were forcibly held in POW camps maintained by the Japanese Army during the war. They could have done no work for any private person except compelled to do so by the Japanese Army in wartime. When they tell the stories of their day-to-day existence in the Japanese POW camps, their days invariably began with being marched by the Japanese Army to some facility operated by a private company. And their work, as the federal district court noted when the Kawakita treason case was tried, "added many tons of nickel ore to Japan's war effort." (See United States v. Kawakita, supra, 96 F.Supp. at p. 837.) It is telling, in that regard, that the first named defendant in this case was part of the conglomerate that made the Zero (the name comes from "Mitsubishi Type 0"), Japan's main fighter plane.
Indeed, no other result would be consistent with the Kawakita treason case as it was finally decided by the United States Supreme Court in 1952. As mentioned above, Kawakita was an American who worked as an interpreter in a private mine, namely the Oeyama Nickel Industry Co, Ltd. When he was prosecuted for treason, his main defense was that he had already renounced his citizenship by virtue of accepting employment for the company, which he claimed was the performance of duties "under the government" of Japan. (See Kawakita v. United States, supra, 343 U.S. at p. 727, 72 S. Ct. 950.)
The Supreme Court rejected that defense. Kawakita didn't work for the government. Though he took orders from the military, he wore an insignia showing that he was a civilian; he had no duties to perform toward the POWs except as an interpreter. The fact that the company was part of the Japanese "war economy" did not change his status from private to governmental. (Kawakita v. United States, supra, 343 U.S. at pp. 727-728, 72 S. Ct. 950.)[22] Even so, the United States *746 Supreme Court upheld Kawakita's treason conviction precisely because his conduct toward his fellow American citizens in the mines, even as a private employee of a Japanese company, still gave aid and comfort to the Japanese war effort.
The overt acts which formed the basis of the conviction included incidents straight out of the complaints in the case before us. Kawakita regularly swore at the prisoners, beat them, threatened them, and punished them if they showed the least bit of tiredness. In one instance, he kicked an American POW when, after becoming ill and dizzy, he slowed down in lifting pieces of ore rocks from the tracks. In another, he struck a prisoner who was weak and emaciated to make him carry two buckets of lead instead of one. (Kawakita v. United States, supra, 343 U.S. at pp. 737-738, 72 S. Ct. 950.) In yet another, he ordered a POW to carry a heavy log up an ice-covered slope. When the prisoner fell, Kawakita delayed his removal back to the POW camp for five hours. (Id. at p. 740, 72 S. Ct. 950.) There were another five such instances of cruel treatment of American POWs as slave laborers.
The Supreme Court upheld the treason conviction because these were acts that "gave aid and comfort to the enemy." (Kawakita, supra, 343 U.S. at p. 741, 72 S. Ct. 950.) As the high court said, "They showed conduct which actually promoted the cause of the enemy. They were acts which tended to strengthen the enemy and advance its interests. These acts in their setting would help make all the prisoners fearful, docile, and subservient.... These acts would tend to give the enemy the `heart and courage to go on with the war.' ... All of the overt acts tended to strengthen Japan's war efforts; all of them encouraged the enemy and advanced its interests." (Id. at pp. 741-742, 72 S. Ct. 950.)[23]
*747 If the maltreatment of American POWs by a civilian employee of a civilian company was sufficient aid and comfort to the Japanese during wartime that it constituted treason if committed by an American citizen, there can be no denying that the plaintiffs' claims herewhich are, in a horrible sense, the same facts as the Kawakita case except viewed from the vantage of the American prisoners, not one of their tormentorsarose "in the course of the prosecution of the war" for purposes of the treaty.
The most natural reading of the "prosecution" is thus one which is not limited to merely lawful acts. Claims, after all, almost always arise out of unlawful or wrongful acts.
C
Next there is the matter of the difference in language between Article 14 (where the Allies waived claims) and Article 19 (where the Japanese waived claims). As the plaintiffs correctly point out here, Article 19 is broader. Article 19(a) of the treaty provides: "Japan waives all claims of Japan and its nationals against the Allied Powers and their nationals arising out of the war or out of actions taken because of the existence of a state of war, and waives all claims arising from the presence, operations or actions of forces or authorities of any of the Allied Powers in Japanese territory prior to the coming into force of the present Treaty." (Peace Treaty, supra, 3 U.S.T. at p. 3187.)
Moreover, in explaining what is encompassed by the waiver provisions of the article's first paragraph, Article 19(b) makes an explicit reference to the claims of Japanese POWs. "The foregoing waiver includes any claims arising out of actions taken by any of the Allied Powers with respect to Japanese ships between September 1, 1939, and the coming into force of the present Treaty, as well as any claims and debts arising in respect to Japanese prisoners of war and civilian internees in the hands of the Allied Powers, but does not include Japanese claims specifically recognized in the laws of any Allied Power enacted since September 2, 1945." (Peace Treaty, supra, 3 U.S.T. at p. 3187.) The plaintiffs lay heavy emphasis on the fact that Article 19 contains a specific reference to Japanese POWs whereas its counterpart, Article 14, doesn't contain a specific reference to Allied POWs.
It is an argument that has force, and is supported by the venerable legal principle that in specifically mentioning one thing you impliedly exclude another. (Expressio unius est exclusio alterius.)
*748 On balance, however, it cannot carry the day in light of the text of Article 16, specifically dealing with Allied POWs, and the basic facts in the historical record we have already mentioned. The specific provisions for Allied prisoners of war in Article 16 of the treaty would lead one to the natural conclusion that the fund being set up in that article was intended to serve as the main source of compensation for them. Any doubt is removed in the Senate Foreign Relations Committee report and the clear expression of intent in Article 14(a) to protect the viability of the Japanese economy.
Remember that in 1951 there was no California statute yet limiting the value of American prisoner of war claims to just the value of their forced labor. They clearly had tort claims for battery, torture, and intentional infliction of emotional distress of the worst sort. These are tort claims easily justifying punitive damages which could have resulted in the bankruptcy of the Japanese companies involved. We need only contemplate the enormity of the sacrifices of the plaintiffs in this case to recognize what would have happened if an American jury had one of the Japanese corporate defendants in front of it and was not limited to just the value of the forced labor. What had the Senate Foreign Relations Committee report said? Insistence on paying reparations "in any proportion commensurate" the claims would wreck Japan's economy.
Thus particularly given how horribly the plaintiffs in this case were treated, it must be assumed that the United States government knew that properly compensating them would be economically impossible. The strong indicia of intent to protect the Japanese economy as expressed by the key players on the American side must necessarily carry more weight than the asymmetry between Articles 14 and 19, which, we must acknowledge, cuts the other way.
D
Finally, plaintiffs contend that Article 26, which can be described as the "most favored nation" clause, allows them to maintain their claims. Article 26 says: "Japan will be prepared to conclude with any State which signed or adhered to the United Nations Declaration of January 1, 1942, and which is at war with Japan, or with any State which previously formed a part of the territory of a State named in Article 23, which is not a signatory of the present Treaty, a bilateral Treaty of Peace on the same or substantially the same terms as are provided for in the present Treaty, but this obligation on the part of Japan will expire three years after the first coming into force of the present Treaty. Should Japan make a peace settlement or war claims settlement with any State granting that State greater advantages than those provided by the present Treaty, those same advantages shall be extended to the parties to the present Treaty." (Peace Treaty, supra, at p. 3190.)
Preliminarily, we must note that the most favored nation argument based on Article 26 tacitly acknowledges that Article 14 would otherwise preclude the lawsuit. The most favored nation argument only makes sense if you first say that, yes, the United States didn't get as good a deal under the terms of the treaty as some other nation got outside the treaty.
The allegation is that because so many of its citizens had lost property when the Japanese invaded Dutch Indonesia, the government of the Netherlands would not have signed the peace treaty with Japan unless it got a side deal with Japan for *749 some compensation to those citizens.[24] The side deal involved the government of Japan paying private Dutch citizens (Allied "nationals" under the terms of Article 14) about $10 million in reparations.
The most favored nation argument fails because, by its terms, Article 26 creates no private rights. The key phrase is "those same advantages shall be extended to the parties to the present Treaty." Individual American citizens are not a party to the treaty, only the United States is. (See Matta-Ballesteros v. Henman (7th Cir. 1990) 896 F.2d 255, 259 ["`it is up to the offended nations to determine whether a violation of sovereign interests occurred and requires redress'"].) Thus even if we assume private Dutch citizens got compensation from the Japanese government where American POWs hadn't, it was the responsibility of the American government to enforce the article by making the Japanese government pay something to them. There is nothing in Article 26 that makes it self-executing. Rather, it requires one of the "parties" to enforce it.
There are other fatal flaws in the most favored nation argument as well. Even if the United States were to obtain as favorable a side deal as the Dutch allegedly got, what would that be? Only direct reparations from the government of Japan, which is not the subject of this litigation. There is no indication that private Dutch citizens were allowed to sue private Japanese companies in Dutch court for loss of property.
IV
Much of the briefing in this case has focused on an issue of whether in enacting Code of Civil Procedure section 354.6 the California Legislature unconstitutionally infringed on the executive powers of the federal government. (See generally Zschernig v. Miller (1968) 389 U.S. 429, 88 S. Ct. 664, 19 L. Ed. 2d 683 [Oregon probate statute that required state courts to determine whether the American heirs of an alien would have a reciprocal right to inherit in alien's country held unconstitutional because it had more than an incidental effect on foreign relations].)[25]
Both the federal district court in In re World War II Era Japanese Forced Labor Litigation (N.D.Cal.2001) 164 F. Supp. 2d 1160 and the (as yet not final) Ninth Circuit decision in Deutsch v. Turner Corporation, supra, 324 F.3d 692 dealt with that problem, in part because those cases involved claims brought pursuant to section 354.6 by mow-Allied nationals, which weren't waived by the treaty. Each federal court decided that our state statute did impermissibly infringe on the federal government's foreign policy power.
We do not need to reach that issue. It is enough to note that the treaty, taken as a whole in historical context, precludes this lawsuit.
We are therefore required to let a peremptory writ issue commanding the Superior Court to vacate its orders overruling the demurrers and denying the motions for judgment on the pleadings in these *750 cases, and enter a new and different order dismissing the cases.
In the interests of justice each side will bear its own costs.
We Concur: RYLAARSDAM and O'LEARY, JJ.
NOTES
[1] Subdivision (b) of Code of Civil Procedure section 354.6 provides in pertinent part: "Any Second World War slave labor victim ... may bring an action to recover compensation for labor performed as a Second World War slave labor victim ... from any entity or successor in interest thereof, for whom that labor was performed, either directly or through a subsidiary or affiliate." The language obviously does more than deal with the statute of limitations on existing claims; it clearly creates a claim where one might not otherwise have existed. (All further statutory references in this opinion are to the Code of Civil Procedure, and specifically to section 354.6 of that code.)
[2] The statute was enacted in 1999. Structurally, subdivision (b) of section 354.6 (see footnote 1, above) creates the claim, while subdivision (c) makes clear that the statute of limitations does not run on it until 2010. Subdivision (c) provides: "Any action brought under this section shall not be dismissed for failure to comply with the applicable statute of limitation, if the action is commenced on or before December 31, 2010." In this opinion we need not deal with the question of whether the state Legislature, consistent with the due process clauses of the state and federal Constitutions, can revive state tort claims (e.g., battery) that had long ago expired under their applicable statute of limitations.
[3] A recent, and as of this writing, nonfinal decision of another panel of the California Court of Appeal, Taiheiyo Cement Corporation v. Superior Court (2003) 105 Cal. App. 4th 398, 129 Cal. Rptr. 2d 451, deals with the claims of a Korean national who was subjected to slave labor in World War II. The plaintiff in that litigation, Jae Won Jeong, subsequently became an American citizen and is now suing, under section 354.6, the cement company for whom he was forced to work. The Taiheiyo Cement court ruled, among other things, that section 354.6 was not an unconstitutional infringement on the foreign affairs power of the federal government and said that the plaintiff could continue his lawsuit.
Then even more recently, the federal Ninth Circuit issued an opinion which did deal with the claims of American POWs who were forced to do slave labor in World War II, Deutsch v. Turner Corporation (9th Cir.2003) 324 F.3d 692. However, in direct contrast to the Second District's Taiheiyo Cement decision, the Deutsch case held that section 354.6 was an unconstitutional infringement by the state government of California on the federal government's foreign affairs power.
Our decision today avoids the Taiheiyo Cement-Deutsch conflict. Because we base our ruling on the scope of the 1951 treaty, there is no need to address the question of whether section 354.6 does, or does not, impermissibly infringe on the federal government's foreign affairs power absent direct preclusion of a plaintiff's claims by treaty. For us, it is enough to note that the 1951 treaty is dispositive as to the claims of American nationals against Japanese companies. Because Korea was not a signatory to the 1951 peace treaty between the United States and Japan, there is no need to address the merits of that decision, though the Taiheiyo Cement court made one observation in a footnote about the 1951 treaty which we consider in footnote 22.
[4] The plaintiffs have helpfully provided the record of the hearings of the United States Senate Judiciary Committee entitled "Former U.S. World War II POWs: A Struggle for Justice" dated June 28, 2000 (see Hearing before Sen. Com. on Judiciary, 106th Cong., 2d Sess. (2000) (hereafter "Senate Report")). The Senate Report contains the testimony of a number of the surviving POWs. We take judicial notice of this report.
[5] See, e.g.. Senate Report, supra, at p. 30 (prepared statement of Harold W. Poole).
[6] As many as 21 unmarked merchant ships transporting American POWs were torpedoed. (See Linda G. Holmes, Unjust Enrichment: How Japan's Companies Built Postwar Fortunes Using American Pows (2001) at p. 33 (hereafter "Unjust Enrichment").)
[7] More graphic descriptions of conditions aboard the hell ships may be found in Chapter 4 of Unjust Enrichment, aptly entitled "Voyages in Hell." (See Unjust Enrichment, supra, at pp. 33-43.)
[8] See Unjust Enrichment, supra, at p. 25 ("It would have been hard to find a POW company worksite in Japan during World War II that was not directly related to war production.") (original emphasis). This was in direct contravention of Article 31 of the 1929 Geneva Convention, which states that POW work "shall have no direct connection with the operations of the war." Holmes captures the extreme psychological oppression in the practice, quoting former POW Robert O'Brien: "`You can't imagine what it was like, each day, being made to manufacture weapons of war to be used against your own brothers!'" (Unjust Enrichment, supra, at p. 27.)
[9] See Senate Report, supra, at p. 31 (statement of Frank Bigelow). The pattern of being delivered by the Japanese Army every morning to a private company to work was repeated in the statement of Bataan Death March survivor Maurice Mazer: "I was imprisoned in Hanawa Camp in Japan. Each morning, the Japanese soldiers turned me and my fellow prisoners of war over to the guards for Mitsubishi Mining, a private company which enslaved us for its own profit and forced us to work in its copper mines and smelter mines." (Senate Report, supra, at p. 32.)
[10] Senate Report, supra, at p. 34 (statement of former POW Lester I. Tenney).
[11] See Herbert P. Bix, Hirohito and the Making of Modern Japan (2000) at p. 360.
[12] See Anita Ramasastry, Corporate Complicity: From Nuremberg to Rangoon: An Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations (2002) 20 Berkeley J. Int.'l. L. 91, 113-117.
[13] Senate Report, supra, at p. 50 (responding to questions posed by Senator Hatch).
[14] Senate Report, supra, at p. 50 (responding to question posed by Senator Hatch) (`Following the war, these assets were seized by the Office of Alien Property (an office within the U.S. Department of Justice), liquidated, and the proceeds placed into a War Claims Fund, for ultimate distribution to POWs and other claimants.'). See also id. at p. 40 (prepared statement of Professor Maier quoting John Foster Dulles to the effect that approximately $20 million of the $90 million had already been used for claims approved by Congress on behalf of internees, civilians and prisoners of war, and it remained for Congress to decide what it wanted to do with the balance).
[15] Senate Report, supra, at p. 2 (statement of Chairman Hatch). See also Unjust Enrichment, supra, at p. 138 (`It is true that Japanese assets frozen in the United States at the outbreak of the war were used to pay military ex-POWs under the War Claims Acts of 1948 and 1952, but the POWs maintain that $1 a day for "missed meals" hardly made up for the life-long effects of malnutrition, and $1.50 "For each day they were forced to perform labor and/or were subjected to inhumane treatment" was not sufficient.') (Footnote omitted).
[16] Dulles was Time Magazine's Man of the Year for 1954.
[17] Recently the idea has come under fire (see Margaret MacMillan, Paris 1919: Six Months That Changed the World (Random House 2001) at p. 493 (arguing that to assign blame to the second world war "is to ignore the actions of everyonepolitical leaders, diplomats, soldiers, ordinary votersfor twenty years between 1919 and 1939").) Even MacMillan, however, recognizes the role Versailles played as a conventional explanation for World War II. (See ibid. ("Later it became commonplace to blame everything that went wrong in the 1920s and 1930s on the peacemakers and the settlements they made in Paris in 1919....").) And there is no doubt that the terms of the Versailles treaty had been exploited by Hitler for propaganda reasons. (See ibid. ("Hitler did not wage war because of the Treaty of Versailles, although he found its existence a godsend for his propaganda").) The conventional view that Versailles directly led to World War II is probably still regnant. (See, e.g., ibid, (quoting the special millennium issue of the Economist magazine to the effect that "`The final crime'" was "`the Treaty of Versailles, whose harsh terms would ensure a second war'"); Roger P. Alford, On War As Hell (2002) 3 Chi. J. Internat. Law 207, 210 ("The consequences of the Treaty of Versailles were devastating for Germany. Germany agreed to pay reparations for all damage caused by the war, amounting to over $30 billion.....[¶] Many Germans greatly objected to the War Guilt clause and resented the onerous reparations they were forced to pay as a result of the Treaty of Versailles.... The seeds of discontent were sown at Versailles and bore devastating fruit in the Second World War").)
[18] A point made with some force in a New York Times article cited to us by the plaintiffs and obtained from the internet, Steven C. Clemons, Recovering Japan's Wartime Past and Ours (September 4, 2001) New York Times. ("Dulles had been a United States counsellor at the Paris Peace Conference in 1919, with special responsibility for reparations. He had opposed, without much success, the heavy penalties imposed by the Allies on Germany. These payments were widely seen as responsible for the later collapse of Germany's economy and, if obliquely, for the rise of Nazism. After World War II, Dulles feared that heavy reparations burdens would similarly cripple Japan, make it vulnerable to Communist domination and prevent it from rebuilding. It was crucial to Dulles that Japan not face claims arising from its wartime conduct."). See also MacMillan, Paris 1919: Six Months That Changed the World, supra, at p. 467 ("And so Article 231, a clause that the young John Foster Dulles helped to draft as a compromise over reparations, became the great symbol of the unfairness and injustice of the Treaty of Versailles in Weimar Germany, in much subsequent historyand in the English-speaking world").
The New York Times piece hardly contains any revelations about Dulles. He had long been on record as opposing reparations, having written an article for the May 1921 issue of Foreign Affairs, "How Reparation Defeats Itself."
[19] The standard source in English for the decision is a secondary one, Richard A. Falk, The Shimoda Case: A Legal Appraisal of the Atomic Attacks Upon Hiroshima and Nagasaki (1965) 59 Am. J. Internat. L. 759 (hereinafter "Falk"). While the (hard to find) Japanese Annual of International Law for 1964 provides a full English translation of the opinion, a translation was obtained from the internet.
[20] See Harry S. Truman, Radio Report to the American People on the Potsdam Conference (Aug. 9, 1945), in 1945 Public Papers at p. 212, quoted in Winston P. Nagan, Nuclear Arsenals, International Lawyers, and the Challenge of the Millennium (1999) 24 Yale J. Int'l. L. 485, 535, fn. 43.
[21] Indeed, the commencement of a similar case in federal court has prompted one commentator to note that allowing domestic law claims by former American POWs threatens the good relations that the 1951 treaty was intended to promote. (See Nicholas P. Van Deven, Taking One for the Team: Principle of Treaty Adherence as a Social Imperative for Preserving Globalization and International Legal Legitimacy as Upheld in In re World War II Era Japanese Forced Labor Litigation (2002) 46 St. Louis U. L.J. 1091, 1122-1123 ["Throughout the suit, many plaintiffs went on record as saying that they desired to have their day in court for purposes of revealing the details of wartime offenses committed against American soldiers in the Pacific.... The Japanese responded to these observations by exclaiming that these claims were a `form of extortion' and that if the United States desired to do so, the gloves essentially would come off. In an effort to combat the claims and show that America was not without guilt in the Second World War, Japanese officials voiced a desire to surface the questionable usage of atomic warfare in both Hiroshima and Nagasaki. Arguably, tensions would have soared had the World War II Case gone before a jury. [¶] Dulles feared that allowing such suits to prevail would hinder progressive international relations with Japan. These quotes made by Japanese officials demonstrate that the fears of Dulles came close to being true." (Footnotes omitted.)].)
[22] It was on the basis of that conclusion that the Taiheiyo Cement court observed, in footnote 7 of its decision, that it was "reasonable to interpret this clause [article 14(b) ] to exclude actions taken by private Japanese companies for profit as not being actions taken in the `course of the prosecution of the war.'" (Taiheiyo Cement, supra, 105 Cal.App.4th at p. 410, fn. 7, 129 Cal. Rptr. 2d 451 quoting Bazyler. The Holocaust Restitution Movement in Comparative Perspective (2002) 20 Berkeley J. Int.'l Law 11, 30, citing Kawakita, supra, 343 U.S. at pp. 727-728.) The observation is obviously obiter dictumbecause the Taiheiyo Cement case did not involve American citizens, the court had no need to address the question of whether the use of slave labor by private Japanese companies was within the purview of the 1951 treaty. That said, we respectfully disagree with the import of the footnote. As we are about to explain in the text above, it is erroneous to draw the conclusion from the Kawakita court's rejection of the defendant's "private employment" defense that the Japanese companies exploiting slave labor weren't part of the "prosecution" of the war. They most certainly were. To conclude otherwise is to ignore the fact that Kawakita himself was still convicted of treason, precisely because his work for a private company gave aid and comfort to the enemy during wartime.
[23] Interestingly enough, the question of where the conduct of the Japanese military left off and where that of private companies began was also the central concern of the British Military court that tried the executives of the Nippon Mining Company in 1947. One of the defenses asserted in that case was that the private company was acting under orders from the Japanese Army. (See Anita Ramasastry, Corporate Complicity: From Nuremberg to Rangoon: An Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations, supra, 20 Berkeley J. Internat. L. at p. 114 ("the British Military court focused a great deal of attention on whether care for the prisoners (and subsequent mistreatment) was the responsibility of the mining company or of the army. Similar to the German industrialists, the mining company officials invoked the defense of necessity. They asserted that in using POW labor in their mining operations, they were acting under orders from the Japanese Army.").) As was the case with American POWs, the typical pattern was that guards would march POWs to the entrance of a mine, where the prisoners would be handed over to civilians. (See id. at pp. 115-116.)
In this regard, we also, at plaintiffs' request, take judicial notice of the recent decision by the Fukuoka District Court on April 26, 2002, entitled Jang Bao Heng v. Mitsui Mining, Inc., a case involving surviving Chinese prisoners of war. (We fully recognize the limitations of the reportit is the plaintiffs' translation of the decision, and it is of limited relevance to a case involving American Prisoners of War in any event. Even so, there is no reason to ignore the decision.)
Much of the Jang Bao Heng opinion appears to be devoted to demonstrating that the claims of Chinese nationals against Japanese nationals were not renounced in the Sino-Japanese Joint Statement of 1972 and the 1978 Sino-Japanese treaty of friendship and peace and is thus technically irrelevant to the case before us here. The primary significance of the case to the plaintiffs are statements in its translated decision to the effect that "Defendant Country should not bear responsibility for compensation for injuries based on these [the mining companies'] illegal acts" and "[I]t cannot be said that the workplace facilities, etc., were established under the control of, or that Plaintiffs' working conditions, etc. were managed, according to Defendant Country." The inference we are asked to draw is that the actions of these private companies should not be ascribed to the Japanese war effort. Not so. The court decision (at least the translation of it provided by plaintiffs' counsel) is very plain that the use of slave labor by Japanese countries during the war was part of the Japanese war effort. Consider these passages: From page 5 (making the point that the Chinese and POW slave laborers were released at the end of the war): "Depending on the method of administrative delivery, for the purpose of making up for the labor shortage accompanying the prosecution of the war in the Pacific, Defendants collaborated and, just as the Chinese laborers, including Plaintiffs, were forcibly taken away and forcibly made to work against their wishes, Japan was defeated and, because the Japanese government signed the instrument of surrender on September 2, J 945, the aim of the forced taking away and forced labor in this case was extinguished." (Emphasis added.) And from page 6: "In this case, regarding the forced taking away and forced labor in this case, Defendant Country expected that it would be solved as war crimes case. ..." (Emphasis added.)
[24] See Steven C. Clemons, Recovering Japan's Wartime Pastand Ours (September 4, 2001) New York Times, copy obtained from the internet.
[25] A side issue in the case is the effect of Gerling Global Reinsurance Corp. of America v. Low (9th Cir.2001) 240 F.3d 739, a case dealing with certain California insurance regulations making it easier for Holocaust victims to assert insurance claims. Gerling has no application to this case. It is one thing for California to require an insurer doing business in this state to disclose certain information, quite another to create a claim that arises directly out of an enemy's war efforts against the United States. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3075671/ | In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-12-00399-CV
_________________
IN RE COMMITMENT OF CARL RAYSON
________________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 05-06-05472 CV
________________________________________________________________________
MEMORANDUM OPINION
In an appeal from an order entered in a sexually-violent-predator proceeding
modifying the terms of a commitment order, changing the entity that approves
where Carl Rayson must reside, we questioned our appellate jurisdiction over such
order. Upon consideration of the statute and the responses of the parties, we
conclude that the trial court’s order is not appealable, and we also conclude that
mandamus relief on the issues Rayson raises is not warranted. Accordingly, we
dismiss the appeal for lack of jurisdiction.
1
Recently, in In re Commitment of Cortez, we addressed the same issues as
are set forth in Rayson’s brief and concluded that we did not have appellate
jurisdiction over these same issues. No. 09-12-00385-CV, 2013 WL 3270613, at
*2 (Tex. App.—Beaumont June 27, 2013, no pet. h.). We also considered whether
Cortez raised issues entitling him to mandamus relief. See id. at **2-6.
For the same reasons stated in Cortez, we conclude that we lack appellate
jurisdiction to review the trial court’s order dated July 26, 2012, and that Rayson
has not demonstrated that he is entitled to mandamus relief. Accordingly, we
dismiss Rayson’s appeal.
APPEAL DISMISSED.
___________________________
CHARLES KREGER
Justice
Submitted on July 10, 2013
Opinion Delivered August 15, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2261048/ | 131 Cal. Rptr. 2d 122 (2003)
106 Cal. App. 4th 533
In re CHRISTOPHER I., a Person Coming Under the Juvenile Court Law.
Orange County Social Services Agency, Plaintiff and Respondent,
v.
Moises I., Defendant and Appellant, Tamara S., Defendant and Respondent.
No. G031449.
Court of Appeal, Fourth District, Division Three.
February 24, 2003.
As Modified on Denial of Rehearing March 10, 2003.
Review Denied April 23, 2003.
*124 John L. Dodd, Tustin, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
Donna P. Chirco for Defendant and Respondent.
Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for the Minor. *123
*125 OPINION
FYBEL, J.
Christopher I., born in September 2001, is a dependent of the juvenile court as a result of suffering severe physical abuse. In an unpublished opinion, Tamara S. v. Superior Court (Aug. 21, 2002, G030646), 2002 WL 1939182, we described the abuse. We concluded there was substantial evidence to support the juvenile court's findings by clear and convincing evidence that on December 17, 2001, Christopher was violently shaken and thrown against his crib railing by his biological father, who had shaken Christopher on prior occasions; and Christopher's biological mother was unable or unwilling to protect Christopher.
In our earlier opinion, we concluded that the juvenile court was permitted to order continuation of life-sustaining medical treatment pending a court hearing. In October 2002, the juvenile court held a four-day evidentiary hearing to determine whether removal of life-sustaining medical treatment was in Christopher's best interests. Six medical doctors who were familiar with Christopher and his condition testified in detail. Three of these doctors were Christopher's treating physicians, two were independent pediatric neurologists, and one was an independent pediatrician who specializes in care for children in hospitals and hospices.
Evidence at the hearing showed that since December 2001, Christopher has been comatose, hospitalized in intensive care, and dependent on a ventilator to breathe. Christopher is neurologically devastated, is in a persistent vegetative condition, and has no cognitive function. Christopher has received heroic medical care in a continuous effort to sustain his life. Future medical treatment will be futile. Even if life-sustaining efforts by machine continue, Christopher will succumb to complications of treatment.
Counsel appointed for Christopher as well as counsel for Christopher's biological mother and father (Tamara S. and Moises I., respectively) participated fully in the hearing. Written reports of the Orange County Social Services Agency (SSA) were presented, and a social worker was cross-examined.
Tamara sought withdrawal of Christopher's life-sustaining medical treatment; Moises opposed this request. Counsel for Christopher, relying on the unanimous views of the testifying doctors, agreed that withdrawal of treatment was in Christopher's best interests. SSA took no position and submitted the issue to the court.
The juvenile court determined that it had the authority to consider withdrawal of Christopher's life-sustaining medical treatment pursuant to the Welfare and Institutions Code. The juvenile court concluded there was clear and convincing evidence that it would be in Christopher's best interests to withdraw life-sustaining medical treatment, except for nutrition, hydration and pain medication. Moises appeals.
We hold (1) the juvenile court has jurisdiction to determine whether life-sustaining medical treatment for a dependent child should be withdrawn; (2) a decision regarding whether withdrawal of life-sustaining medical treatment is in the best interests of a dependent child requires consideration of the factors identified in this opinion; (3) the standard of proof for such determination is clear and convincing evidence; (4) an evidentiary hearing with live testimony must be held; and (5) the juvenile court must state its findings on the record, either orally in open court or in a written order. We conclude that in this case the juvenile court applied the correct legal standards and considered the appropriate *126 factors. Substantial evidence supports its decision. Therefore, we affirm.
Moises does not challenge the sufficiency of the evidence, the clear and convincing standard of proof, or that the issue before the juvenile court was the best interests of the child. Instead, Moises argues the juvenile court did not have the authority to order removal of life-sustaining medical treatment from a dependent child. Moises further contends the juvenile court did not have the authority to make medical decisions concerning a dependent child, for whom counsel had been appointed, absent the appointment of a guardian. Next, Moises contends for the first time on appeal that we should reverse the juvenile court's order because of SSA's alleged inadequacies in giving notice pursuant to the federal Indian Child Welfare Act. Finally, Moises contends the juvenile court erred in failing to conduct an examination of Tamara's competency or to appoint a guardian ad litem for her. For the reasons explained below, and based on the relevant authorities, we reject all of Moises's arguments as being without merit.
We appreciate the significance of our decision to Christopher, now one and a half years old. We reach our conclusions with his fate in our minds and our hearts. In making his ruling in the juvenile court, Judge Behn said, "I would ask you to keep Christopher in your prayers and thoughts, as I have done for these last three or four months." We join in Judge Behn's sentiments, and wish Christopher peace and serenity.
I. FACTS
A. Procedural history
In December 2001, when Christopher was three months old, SSA took him into protective custody. SSA filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b) and (e), alleging that: Moises had thrown Christopher against a crib, causing serious brain damage; Moises had been arrested for child endangerment; Moises had violently shaken Christopher on more than one previous occasion; Tamara witnessed Moises throw Christopher into the crib and inflict physical abuse on Christopher; Tamara was unable or unwilling to protect Christopher from harm; and Christopher was on life support and would be neurologically devastated if he survived. (All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.)
SSA filed an amended petition on April 2, 2002. The amended petition restated the allegations of the original petition, and added the following: neither Moises nor Tamara had provided any reasonable explanation for Christopher's injuries; their stories were inconsistent with each other and with their own earlier statements; and Christopher's injuries were consistent with "`Shaken Impact Syndrome.'"
After a joint jurisdiction and disposition hearing in May 2002, the juvenile court found the allegations of the first amended petition to be true by a preponderance of the evidence, and found that Christopher was properly within its jurisdiction pursuant to section 300, subdivisions (a), (b) and (e). Based on these findings, the juvenile court declared Christopher to be a dependent child of the juvenile court, pursuant to section 360, subdivision (d).
The court also found, based on clear and convincing evidence, that (1) Christopher had been the victim of severe physical abuse by Moises; (2) Tamara knew or reasonably should have known Moises was physically abusing Christopher; (3) it would be detrimental to Christopher to vest custody with either of his parents; and (4) Christopher's best interests would *127 be served by vesting custody with SSA. The juvenile court also denied reunification services to both Moises and Tamara, and set a permanency hearing under section 366.26.
Because Tamara stated during the disposition hearing that she intended to authorize withdrawal of Christopher's life support, the juvenile court also ordered that Christopher's life-sustaining medical treatment could not be withdrawn absent a further evidentiary hearing and court order.
Moises filed a notice of intent to file a writ petition challenging the court's findings and orders in setting the permanency hearing, but he later abandoned that petition.
Tamara filed a writ petition challenging the order denying reunification services and prohibiting the withdrawal of Christopher's life-sustaining medical treatment. In Tamara S. v. Superior Court, supra, G030646, we denied Tamara's writ petition.
On September 12, 2002, Tamara filed a petition with the juvenile court for an order authorizing a "Do Not Resuscitate" (DNR) order for Christopher and/or removal of Christopher's life-sustaining medical treatment.
Moises moved to dismiss the petition on the ground Tamara lacked standing. The juvenile court denied Moises's motion without prejudice, citing Tamara S. v. Superior Court, supra, G030646: "I would just point out to everyone before we hear this that on page 15 of the opinion that affirmed the decision, the last line, `We agree with SSA that the ultimate decision must be made after a hearing. So did Judge Behn. Christopher is a dependent child over whom the juvenile court has jurisdiction. Therefore, the court has the statutory responsibility to serve Christopher's best interest.' [¶] And this court's feeling is it doesn't matter who brings the motion. This court has an obligation to determine whether life sustaining medical treatment is in Christopher's best interest, and unless you can show me that I don't have that authority, this court is going to conduct a hearing. [¶] . . . [¶] . . . I think anyone has standing to bring a motion because the ultimate question here is what's in Christopher's best interest, [f] Christopher evidence was quite clear that Christopher is on a machine. The doctors testified that they don't know whether Christopher could sustain life without those machines. I don't know what's in Christopher's best interest. We simply had a jurisdictional hearing. And at this point, I believe mother has standing to ask the court to make a determination of what's in Christopher's best interest. And I really think that's the crux of her motion. She's framed it in such a way that she's asking me to give her the authority. But the basis of the motion is what's in Christopher's best interest. And the court believes that the Fourth District has mandated that I hold a hearing to determine what's in Christopher's best interest."
At the hearing, Tamara presented the testimony of three of Christopher's treating physicians (Drs. David Hicks, Ragnar Amlie and Gilbert Umnas), and two independent pediatric neurologists who had examined Christopher and reviewed his medical records (Drs. Ira Lott and Perry Lubens). Tamara also introduced as evidence two current photographs of Christopher, curriculum vitae for Drs. Lott and Lubens, and two interim SSA reports regarding Christopher. Christopher's social worker, who authored the interim SSA reports, was cross-examined by counsel for Moises and counsel for Christopher.
Christopher's counsel presented the testimony of Dr. David Sine, an independent physician who specializes in hospital pediatrics *128 and hospice care. Dr. Sine had examined Christopher and reviewed his medical records. A report prepared by Dr. Sine was also offered as evidence. Christopher's counsel also offered one current photograph of Christopher, and the curriculum vitae for Dr. Sine.
Moises offered no witnesses. He did, however, submit an offer of proof that a licensed foster mother was willing to become Christopher's foster mother, legal guardian, or adoptive parent.
SSSA offered no witnesses or evidence, and took no position on the merits of the petition.
B. Evidence regarding Christopher's condition adduced at the hearing
Christopher is not brain dead. "An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead." (Health & Saf.Code, § 7180, subd. (a).) The testifying doctors agreed that Christopher has some lower- and mid-brainstem activity, and therefore he is not brain dead.
Christopher's life is sustained by a ventilator that operates 24 hours a day to cause his lungs to fill with and then expel air, and by a gastrointestinal tube (G-tube) that provides nutrition. His numerous medications include medications to reduce pain or discomfort. Christopher's physical existence is "100 percent" dependent on technology. Christopher has no gag reflex, no cough reflex, no sucking reflex, and no swallowing reflex.
The testifying doctors all agreed that Christopher is in a persistent vegetative state, with no cognitive functioning. Christopher has no hope of any meaningful recovery. Christopher has shown no signs of improvement since his admission to a long-term-care facility. There are no treatments, experimental or otherwise, that might help him. Maintenance of Christopher's life-sustaining medical treatment is futile; his condition cannot improve, and his current treatment only keeps his bodily functions operating, without any hope for future cognitive or neurological improvement.
At least once a day, and as often as several times an hour, Christopher suffers an episode of increased tensing or stiffening of his muscles; these episodes are generally in response to some type of outside stimulus, such as light, sound or touch. It is becoming more difficult for the doctors to control these episodes and calm Christopher with medication.
There was some disagreement among the doctors as to whether Christopher feels pain. Dr. Amlie testified Christopher could not feel pain at a cerebral level, and the tensing and tremoring he experiences in response to stimuli are spontaneous brain stem activities over which he has no control or perception. Dr. Umnas testified he is "not certain that [Christopher] experiences pain." Dr. Lott testified Christopher experiences "deep pain" but is not suffering from that pain in a cognitive sense. Dr. Lubens testified that "at some level [Christopher] experiences the discomfort of pain," and Christopher's tremors are activated by and in response to pain. While Dr. Lubens stated that, in his opinion, Christopher is experiencing discomfort, it would not be possible to determine what the "depth of the experience" would be, and it would not be the same type of discomfort experienced by someone with cognitive functioning. Dr. Sine testified Christopher's response to uncomfortable stimuli by tensing was an indication that he experiences chronic pain, while acknowledging the concept of pain is *129 still not well understood in the medical community.
Christopher's physical development has also been negatively impacted by his brain injury. Christopher's fontanel (or soft spot), which in normal children remains open until approximately 18 months of age to accommodate growth of the brain, closed before Christopher's first birthday. Christopher suffers from microcephaly, a condition in which the top part of his head is smaller than average, also as a result of the lack of normal brain functioning.
The consensus among the testifying doctors was that Christopher will likely die as a result of some type of collateral problem, such as lung damage caused by repeated bouts of pneumonia and bronchitis, which in turn are caused by an inability to effectively clear Christopher's bronchial tubes and "chronic contamination of the airway." The use of life-sustaining medical treatment over an extended period of time has created complications for Christopher, and these complications will increase and worsen as time goes on. Dr. Amlie testified, "He will have complications to some of the treatment that's been given and that is supporting him. And he will eventually succumb to the complications of the treatment."
Long-term use of artificial respiration through a tracheostomy has potential side effects such as secretions plugging the tube, which may lead to pneumonia and bacterial infections. The use of the ventilator may also result in barotrauma, or the increase in pressure on the chest wall resulting in air being forced out of the lungs and into the surrounding tissue.
Long-term use of the G-tube to provide nutrition increases Christopher's risk of liver and kidney damage. Nutrition passing through the G-tube can cause aspiration pneumonia.
Christopher's lack of any mobility has resulted in hip dysplasia. His bones have become osteopenic, and acts as seemingly simple as changing his diaper have resulted in bone fractures.
Christopher also stores fluid in his skin and has experienced abnormal weight gain. Christopher's edema is indicative of his body's inability to effectively utilize the nutrition being provided by his G-tube. He also suffers from pulmonary edema, and increasingly needs his lungs suctioned.
C. Medical conclusions
Christopher's treating doctors and two of the three independent doctors agreed that continued life-sustaining medical treatment will not benefit Christopher. The third independent doctor (Dr. Lott) had no opinion regarding whether maintenance of life-sustaining medical treatment will benefit Christopher. All the testifying doctors supported removal of life-sustaining medical treatment or at least a DNR order.
Dr. Hicks testified: "I think it's important for us to decide what is in Christopher's best interest. Not in anybody else's best interest, but Christopher's best interest. And right now I do not believe in his condition, that remaining on a ventilator, remaining in a level of possible] discomfort for his whole life would be in his best interest."
Dr. Umnas testified: "I don't see any improvements in [Christopher's] status. He is just being maintained with the mechanical ventilator. He has no quality of life. He can't do any activities of daily living. His eyes are fixed and very sluggish pupils. He cannot track. He cannot speak. He cannot eat or drink on his own or maintain his own bowel functions on his own. And I think he is just being maintained by the ventilator."
*130 Dr. Lott testified that, as a neurologist, he had no opinion regarding whether it was in Christopher's best interests to maintain life-sustaining medical treatment, but also testified that the treatment "benefit[s]" Christopher only in the sense that it prevents him from dying. Dr. Lott also testified that Christopher has no hope for improvement and that maintenance of life support will not change that fact. "I don't think the quality of his life is going to change from what it is now. There is no evidence of conscious awareness, no reaction of any adaptive behavior to external stimuli. There is no evidence of a functioning mind. I don't think anything is going to change if those supports are continued."
Dr. Lubens echoed Dr. Lott's testimony. "I think Christopher is in a hopeless situation. I think that he can't improve. I think that the medical treatment that he has is futile. The futility of the treatment, it's only keeping him alive. And the only thing that happens to him when he is alive, I think, the only thing he does experience is pain, and some pain and some discomfort at some very limited level, [in] some very generalized way. [¶] I don't think he experiences anything else but pain, or nothing. And I think that there is no point to the treatment. There is no hope to make him better. There is no hope for any improvement in the situation which is futile."
Dr. Lubens further testified that continuing Christopher's life-sustaining medical treatment would be pointless. "From a medical standpoint, it's as a doctor, there should be a point to treatment. Treatment should have some goal. Treatment should be to make the person getting the treatment better. And doctors treat diseases and disorders in order to make sick people well. And I think there is the only thing we are doing with Christopher is in a very heroic way maintaining his life. But again a life where there is virtually no consciousness. [¶] . . . [¶] And it's not a question, I think, in this situation of can it be done, but should it be done. I don't think it should be done."
When questioned about what would be the harm in maintaining Christopher on life-sustaining medical treatment, Dr. Sine replied: "I feel that that goes completely against the Hippocratic Oath for physicians on a physician level in that the number one clause for the Hippocratic Oath is to do no harm. [¶] Clearly we're doing harm with Christopher. We are allowing him to be in pain. We are allowing him to continue to have complications with harm and further medical interventions that cause pain. [¶] On a layman's perspective, I would say anyone who feels that we are not causing him harm just needs to go into the room and look at him and watch him for five minutes. And in five minutes, it becomes quite clear that he is suffering."
Christopher's social worker had no recommendation regarding whether life-sustaining medical treatment should be maintained or withdrawn.
D. The court's ruling
Following the presentation of evidence and argument, the juvenile court judge read his ruling into the record. The court found that it had jurisdiction over Tamara's petition, pursuant to sections 19, 362, subdivision (a), 245.5, and 369. The court rejected Moises's argument that the court lacked jurisdiction over the petition brought by Tamara. The court determined that (1) Tamara's petition was actually a motion under section 388, which had been brought to consider new evidence regarding Christopher's life-sustaining medical treatment; and (2) Tamara had an interest in Christopher and his well-being sufficient to permit a section 388 motion, *131 despite the fact that she had lost custody of him.
The court also rejected Moises's argument that the court had violated due process by using the procedures set out in the Superior Court of Los Angeles County, Local Rules.
The court then made the following findings and rulings:
"The evidence is clear and convincing as to the following findings:
"One, Christopher is in a persistent vegetative condition.
"Two, that he is neurologically devastated.
"Three, the medical testimony that life sustaining medical treatment is of no benefit to Christopher.
"The medical testimony is consistent that life sustaining medical treatment should be discontinued.
"Five, Christopher's chances for recovery are zero. And that there is no miracle drug or experimental treatments that are available to Christopher.
"Six, that Christopher's body is 100 percent dependent on life sustaining medical treatment.
"The issue thus framed, should Christopher be kept on life sustaining medical treatment because it's a benefit or does the burden of that treatment cause suffering and pain that is actually harmful.
"The medical testimony was clear and convincing that Christopher reacts to stimuli that is discomforting and painful. The testimony was clear that his reactions are: one, increased heart rate; two, elevated blood pressure; three, sweating; four, tensing and toning. Pain medication is necessary to calm Christopher during these events.
"The testimony indicates that Christopher may not be aware of pain as we are. However, his reactions would indicate circumstantially that the pain is present. No other reasonable interpretation can be made.
"The evidence is clear and convincing that Christopher's bones are becoming brittle and breaking. That tensing of his body causes joints to dislocate. Even the changing of his diaper causes a reaction. Not a day goes by without this evidence of suffering and pain.
"The medical evidence is that the condition Christopher finds himself in will get worse; that the events of tensing, pain, and suffering will increase.
"The medical evidence is Christopher could live for years in this condition of pain and suffering. The doctors cannot say what degree of pain Christopher experiences, but the circumstantial evidence of his reactions would indicate it is substantial.
"The court agrees with Dr. Sine that all the life sustaining medical treatment is doing is keeping the shell of what Christopher was alive. Life is hope, and Christopher has no hope. He deserved better from his parents than a world of pain and darkness.
"In balancing the evidence, it is clear to this court and this court is convinced that to continue life sustaining medical treatment is to continue pain and suffering for Christopher.
"The court will sign an order authorizing the treating physicians . . . to withhold all treatment other than nutrition, hydration, and pain medication." The minute order provides: "Orders and findings as stated on the record." Moises *132 timely appealed.[1]
II. APPLICABLE STANDARDS
There is no reported case in which a California court has set forth the standards to apply when deciding whether to withhold or withdraw life-sustaining medical treatment from a child who is a dependent of the juvenile court.[2] In reaching our decision in this case, we have analyzed California statutes, case law from California and other states, federal case law, including cases from the United States Supreme Court, treatises and commission reports.
A. What constitutes life-sustaining medical treatment?
Reference to life-sustaining medical treatment includes not only treatments that might be considered extraordinary, such as machines to maintain breathing or circulation, but also the provision of nutrition, hydration and medication. (Cruzan v. Director, Mo. Health Dept. (1990) 497 U.S. 261, 288, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (cone. opn. of O'Connor, J.) ["Artificial feeding cannot readily be distinguished from other forms of medical treatment"]; Conservatorship of Drabick (1988) 200 Cal. App. 3d 185, 195, fn. 9, 245 Cal. Rptr. 840; Bouvia v. Superior Court, supra, 179 Cal. App. 3d 1127, 1141, 1145-1146, 225 Cal. Rptr. 297; Barber v. Superior Court (1983) 147 Cal. App. 3d 1006, 1016-1017, 195 Cal. Rptr. 484 ["Medical procedures to provide nutrition and hydration are more similar to other medical procedures than to typical human ways of providing nutrition and hydration. Their benefits and burdens ought to be evaluated in the same manner as any other medical procedure"]; Gray v. Romeo (D.R.I.1988) 697 F. Supp. 580, 586-587 ["Although an emotional symbolism attaches itself to artificial feeding, there is no legal difference between a mechanical device that allows a person to breathe artificially and a mechanical device that artificially allows a person nourishment"]; Coord. Council on Life-Sustaining Medical Treatment Decision Making by the Courts, Guidelines for State Court Decision Making in Authorizing or Withholding Life-Sustaining Medical Treatment (1991) pp. 52-53, fn. 73 (Guidelines for State Courts); President's Com. for Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment: Report on Ethical, Medical, and Legal Issues in Treatment Decisions (1983) pp. 82-90 (President's Commission).)
This distinction is not at issue in this case because the juvenile court did not authorize withdrawal of nutrition, hydration *133 or medication from Christopher. The analysis that follows, however, would apply equally to another court's decision to withdraw nutrition, hydration or medication from a dependent child.
B. The decision to withhold or withdraw life-sustaining medical treatment is governed by consideration of the dependent child's best interests.
Courts deciding whether to withhold or withdraw life-sustaining medical treatment from persons not legally competent to make their own medical decisions have employed one of two decisionmaking models: the substituted judgment test and the best interests test. The substituted judgment test permits a surrogate to make decisions regarding medical care based on what the patient would have chosen had he or she been competent. (Superintendent of Belchertown State School v. Saikewicz (1977) 373 Mass. 728, 370 N.E.2d 417, 431; see also President's Com., supra, at pp. 132-133; Guidelines for State Courts, supra, at p. 74.) This model assumes some understanding of the patient's wants, desires, feelings, and previous mental and physical states. (In re AC. (D.C.1990) 573 A.2d 1235, 1249-1250; President's Com., supra, at p. 133; Guidelines for State Courts, supra, at p. 74.) The substituted judgment test is therefore an inappropriate tool for making medical decisions for patients like Christopher, who has never been competent to make his own decisions or express his emotions and feelings on the subject. (In re K.I. (D.C.1999) 735 A.2d 448, 455-456.)
The best interests model is the correct one to use in this case. (Barber v. Superior Court, supra, 147 Cal. App. 3d 1006, 1021, 195 Cal. Rptr. 484.) Under this model, the decisionmaker is guided by a determination of what medical treatment is in the patient's best interests. (Ibid.; President's Com., supra, at pp. 134-135; Guidelines for State Courts, supra, at pp. 74-75.) In the context of juvenile dependency, weighing the best interests of the dependent child is always the court's paramount concern. (In re Kieshia E. (1993) 6 Cal. 4th 68, 84, 23 Cal. Rptr. 2d 775, 859 P.2d 1290.) Therefore, the use of the best interests test when considering withdrawal of life-sustaining medical treatment from a dependent child is particularly appropriate in this case.
C. The factors to consider when determining whether to withhold or withdraw life-sustaining medical treatment from a dependent child.
What factors should the juvenile court consider in determining whether it is in a dependent child's best interests to withhold or withdraw life-sustaining medical treatment? In Barber v. Superior Court, supra, 147 Cal.App.3d at page 1021, 195 Cal. Rptr. 484, citing to President's Commission, supra, at page 135, the Second Appellate District identified the following factors to be considered in determining whether to withdraw life-sustaining medical treatment from a previously competent adult who had become comatose: "the relief of suffering, the preservation or restoration of functioning and the quality as well as the extent of life sustained." Barber v. Superior Court emphasized that a court must consider the burdens treatment may cause to the patient in proportion to the benefits it may provide. "A more rational approach involves the determination of whether the proposed treatment is proportionate or disproportionate in terms of the benefits to be gained versus the burdens caused." (Id. at pp. 1018-1019, 195 Cal. Rptr. 484.)
The California Legislature has recognized that medical technology may prolong the process of dying and that "continued *134 health care [that] does not improve the prognosis for recovery may violate patient dignity and cause unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the person." (Prob.Code, § 4650, subd. (b).) Although this statute addresses the right of adult patients to make their own decisions regarding their health care, including the right to refuse life-sustaining medical treatment, it also provides us with further guidance regarding the information a court should consider in deciding whether lifesustaining medical treatment should be withheld or withdrawn from a dependent child.
The Superior Court of Los Angeles County enacted a series of rules listing factors to consider when determining whether continuance or withdrawal of lifesustaining medical treatment is in the best interests of a dependent child, as follows: "(a) Evidence about the minor's present level of physical, sensory, emotional and cognitive functioning; (b) The degree of physical pain resulting from the medical condition, treatment, and termination; (c) The degree of humiliation, dependence and loss of dignity probably resulting from the condition and treatment; (d) The quality of life, life expectancy and prognosis for recovery with and without treatment; (e) The various treatment options, and the risks, side effects and benefits of each of those options; (f) Whether the minor's preference has been or can be ascertained." (Super. Ct. L.A. County, Local Rules, rule 17.4(h).)
A virtually identical list of factors appears in the Guidelines for State Courts, a document intended to provide guidance for trial and appellate courts that preside over cases involving withdrawal of life-sustaining medical treatment. (Guidelines for State Courts, supra, at p. 75.) Courts in many jurisdictions throughout the United States have employed the same, or virtually the same, factors in considering questions of withholding or withdrawing lifesustaining medical treatment from incompetent patients. (See In re Truselo (Del. Fam.Ct, Sept. 19, 2000, No. CN00-09299) 2000 WL 33324536 at p. *12; In re K. I., supra, 735 A.2d 448, 465; In re Rosebush (1992) 195 Mich.App. 675, 491 N.W.2d 633, 640; Matter of Conroy (1985) 98 N.J. 321, 486 A.2d 1209, 1232, 1249; Matter of Beth Israel Medical Center (N.Y.Sup.Ct.1987) 136 Misc. 2d 931, 519 N.Y.S.2d 511, 517; In re Guardianship of Grant (1987) 109 Wash.2d 545, 747 P.2d 445, 457.)
We conclude that a court making the decision of whether to withhold or withdraw life-sustaining medical treatment from a dependent child should consider the following factors: (1) the child's present levels of physical, sensory, emotional and cognitive functioning; (2) the quality of life, life expectancy and prognosis for recovery with and without treatment, including the futility of continued treatment; (3) the various treatment options, and the risks, side effects, and benefits of each; (4) the nature and degree of physical pain or suffering resulting from the medical condition; (5) whether the medical treatment being provided is causing or may cause pain, suffering, or serious complications; (6) the pain or suffering to the child if the medical treatment is withdrawn; (7) whether any particular treatment would be proportionate or disproportionate in terms of the benefits to be gained by the child versus the burdens caused to the child; (8) the likelihood that pain or suffering resulting from withholding or withdrawal of treatment could be avoided or minimized; (9) the degree of humiliation, dependence and loss of dignity resulting from the condition and treatment; (10) the opinions of the family, the reasons behind those opinions, and the reasons why the family either *135 has no opinion or cannot agree on a course of treatment; (11) the motivations of the family in advocating a particular course of treatment; and (12) the child's preference, if it can be ascertained, for treatment.
This list is not meant to be exclusive, but is intended to provide a set of factors to be considered, analyzed and weighed. Not all of these factors may be applicable in a given case. The court is not limited to consideration of only these factors, and may take other factors into account when appropriate, especially as medical science and technology develop.
D. The court's decision to withhold or withdraw life-sustaining medical treatment must be supported by clear and convincing evidence.
What is the appropriate burden of proof necessary to sustain the court's findings that withholding or withdrawal of lifesustaining medical treatment is in a dependent child's best interests? The Welfare and Institutions Code requires either proof by a preponderance of the evidence or clear and convincing evidence, depending on the rights being adjudicated. A jurisdictional finding requires proof by a preponderance of the evidence. (§ 355, subd. (a).) Where the stakes are higher, such as where the court is making a dispositional finding to remove the child from the parents' home (§ 361, subd. (c)) or where the court is finding that the child is adoptable and parental rights should be terminated (§ 366.26, subd. (c)(1)), proof must be by clear and convincing evidence. Given the impact of this decision on Christopher, imposition of the highest standard within the Welfare and Institutions Code the clear and convincing standard of proof is appropriate. Moises did not raise an objection on appeal to the use of clear and convincing evidence as the standard of proof, and at oral argument Moises's counsel agreed that this is the appropriate standard.
The evidentiary standards employed by other courts considering withholding or withdrawal of life-sustaining treatment from incompetent patients reinforce our belief that the clear and convincing standard is the correct one. (Cruzan v. Director, Mo. Health Dept., supra, 497 U.S. 261, 282, 110 S. Ct. 2841 (opn. of Rehnquist, C.J.) [Missouri's requirement of clear and convincing evidence of adult patient's earlier expressed desire to have life-sustaining treatment withdrawn did not violate due process when patient's parents sought to use substituted judgment test to withdraw feeding tube after an accident caused her to be in a persistent vegetative state]; In re K. I., supra, 735 A.2d at pp. 456, 463-464 [clear and convincing standard applied because a DNR order would have severe consequences for life of minor and would deprive mother of right to make medical decisions for minor]; In re Truselo, supra, No. CN00-09299, 2000 WL 33324536 at p. *13; see also Guidelines for State Courts, supra, at pp. 64-66, and cases cited therein.) The Superior Court of Los Angeles County, Local Rules regarding withholding or withdrawal of life-sustaining medical treatment also require that the court's ruling "be based upon clear and convincing evidence of the minor's best interests." (Super. Ct. L.A. County, Local Rules, rule 17.4(g)(4).)
E. A court deciding whether to withhold or withdraw life-sustaining medical treatment from a dependent child must hear live testimony, evaluate and weigh the relevant factors, and make its findings on the record.
The factors relied on by the juvenile court in rendering its decision must be supported by live testimony at an evidentiary hearing. The Superior Court of Los *136 Angeles County, Local Rules, rule 17.4(g)(3) requires that live medical testimony be presented to a court considering withholding or withdrawal of life-sustaining medical treatment from a dependent child. Since all the relevant evidence in this case was presented through live testimony, we need not consider whether proof by declaration would suffice on some issue. A court should not simply count how many of the factors favor withholding or withdrawal of life-sustaining medical treatment and how many do not; the court must engage in an evaluation of all relevant factors, giving each factor the weight it may deserve, given the circumstances of the case. A court must state its findings on the record, either orally in open court (as the juvenile court did in this case) or in a written order.
III. DISCUSSION
A. Substantial evidence supported the juvenile court's determination that withdrawal of life-sustaining medical treatment was in Christopher's best interests.
In his appellate briefs, Moises did not address whether withdrawal of life-sustaining medical treatment is in Christopher's best interests. At oral argument, Moises's counsel agreed there was substantial evidence to support the juvenile court's conclusions. It is nevertheless important that this court review the decision made by the juvenile court regarding the withdrawal of life-sustaining medical treatment for Christopher. It is also important to consider Christopher's dependency status, his current medical condition and treatment, his chances for recovery, and the acts and wishes of his biological parents. These matters give context and meaning to the questions of the juvenile court's jurisdiction over the decision to withdraw Christopher's life-sustaining medical treatment. In addition, "[i]n light of the important questions raised by this case, this court has the discretion to render an opinion where the issues are of continuing public interest and are likely to recur in other cases." (Dority v. Superior Court (1983) 145 Cal. App. 3d 273, 276, 193 Cal. Rptr. 288.)
The juvenile court correctly determined that continuation of life-sustaining medical treatment would not be in Christopher's best interests. There was substantial evidence to support the court's findings. (In re Jacob S. (2002) 104 Cal. App. 4th 1011, 1017, 128 Cal. Rptr. 2d 654.) The juvenile court considered the applicable factors and found by clear and convincing evidence that: Christopher has no cognitive function, and is in a persistent vegetative state; Christopher's current treatment is of no benefit to him; no treatment will change his current condition; Christopher is 100 percent dependent on the ventilator and the G-tube; immobility caused by Christopher's brain damage is leading to other medical problems, which will increase over time; Christopher may live for many years in his current vegetative condition, if lifesustaining treatment continues; and circumstantial evidence indicates Christopher is in "substantial" pain, and is suffering. The juvenile court's oral recitation of its findings on the record did not refer to the opinions of Christopher's family members. Those opinions, however, are clear from the record, given that counsel for both Moises and Tamara set forth their respective clients' positions regarding withdrawal of life-sustaining medical treatment.
The juvenile court weighed and balanced the factors. The testimony from Christopher's treating physicians and the independent physicians who examined him was both compelling and consistent.
Based on clear and convincing evidence, the juvenile court determined that continuation *137 of Christopher's life-sustaining medical treatment would not be in his best interests. We hold this determination was supported by substantial evidence, and the juvenile court did not err in reaching its conclusion.
B. The juvenile court had the authority to consider and rule on withdrawal of Christopher's life-sustaining medical treatment.
1. The juvenile court has the statutory authority to consider matters relating to life-sustaining medical treatment for dependent children within its jurisdiction.
The juvenile court had jurisdiction over Christopher by virtue of section 300. The evidence presented at the jurisdiction hearing far exceeded that necessary to establish by a preponderance of the evidence that Christopher suffered serious physical harm nonaccidentally inflicted by Moises, and suffered serious physical harm as a result of Tamara's failure or inability to protect him. (§ 300, subds.(a) and (b).) The evidence also showed that Christopher was under the age of five and had suffered severe physical abuse by Moises, and that Tamara knew or reasonably should have known Moises was abusing Christopher. (§ 300, subd. (e).)
"When a child is adjudged a dependent child of the court on the ground that the child is a person described by Section 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment, subject to further order of the court." (§ 362, subd. (a).)
A competent adult has the right to decide what medical care to receive. (Cobbs v. Grant (1972) 8 Cal. 3d 229, 240, 104 Cal. Rptr. 505, 502 P.2d 1.) A recognized corollary to this right is the right to refuse medical treatment. (Barber v. Superior Court, supra, 147 Cal. App. 3d 1006, 1015, 195 Cal. Rptr. 484.) The right to refuse or withdraw life-sustaining medical treatment is a subpart (indeed, the most significant one) of the general right to refuse medical treatment. (Prob.Code § 4650, subd. (a); Bouvia v. Superior Court, supra, 179 Cal. App. 3d 1127, 1137, 225 Cal. Rptr. 297; Bartling v. Superior Court, supra, 163 Cal. App. 3d 186, 193-197, 209 Cal. Rptr. 220.) The juvenile court's authority pursuant to section 362, subdivision (a), to make decisions regarding medical treatment for dependent children within its jurisdiction necessarily includes decisions to refuse or withdraw medical treatment, including life-sustaining medical treatment.
Other relevant provisions of the Welfare and Institutions Code illustrate the juvenile court's authority to make all reasonable orders relating to medical treatment for a dependent child. No statute restricts that authority.
For example, section 202 provides that the Welfare and Institutions Code must be liberally construed to permit the juvenile court to obtain care including medical care in the dependent child's best interests and consistent with what the parents should have obtained or authorized. Section 202 provides in relevant part: "(a) . . . When the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents. This chapter shall be liberally construed to carry out these purposes. [¶] (b) Minors under the jurisdiction of the juvenile court who are in need of protective services shall receive care, treatment and guidance consistent *138 with their best interest and the best interest of the public."
Under other sections of the Welfare and Institutions Code, the juvenile court is given the authority to make medical decisions for dependent children within its jurisdiction. The juvenile court's authority is triggered in different ways. (See § 369, subds. (a)-(c).) The juvenile court may also direct orders to the dependent child's parent or guardian, regarding the child's medical treatment when necessary and proper for the child's best interests. (§ 245.5.) In the most general sense, section 19 sets forth the purpose of the entire Welfare and Institutions Code to "establish ] programs and services which are designed to provide protection, support or care of children, . . . to insure that the rights or physical, mental or moral welfare of children are not violated or threatened by their present circumstances or environment."
In this case, Tamara filed a petition seeking a DNR order or an order withdrawing Christopher's life support. The juvenile court determined this petition to be a section 388 motion. Whether or not the petition was treated as a section 388 motion, Tamara was entitled to bring the matter before the juvenile court. Moises argues that only Christopher's counsel, SSA, or a separate guardian ad litem appointed for Christopher could have initiated this proceeding. We agree with the juvenile court that any parent or another interested party had the right to bring the matter before the court. Once the request to withdraw life-sustaining medical treatment was made, the juvenile court had the responsibility to fulfill its statutory obligation to protect the best interests of a child within its jurisdiction. The juvenile court accepted and exercised its responsibility by rendering a decision that lifesustaining medical treatment should be withdrawn from Christopher, following a full evidentiary hearing. In doing so, the juvenile court acted with care, thoroughness and sensitivity.
2. Case law supports the inherent authority of the juvenile court to make decisions regarding life-sustaining medical treatment for dependent children within its jurisdiction.
"California law gives persons a right to determine the scope of their own medical treatment, [and] this right survives incompetence in the sense that incompetent patients retain the right to have appropriate decisions made on their behalf." (Conservatorship of Drabick, supra, 200 Cal. App. 3d 185, 205, 245 Cal. Rptr. 840.) The right of an adult or emancipated minor to determine the scope of his or her medical treatment includes the right to refuse medical treatment. (Prob.Code, § 4650, subd. (a).)
Christopher is a minor and not competent to make his own medical decisions. Nevertheless, Christopher has the right to have an appropriate decisionmaker determine whether withdrawal of life-sustaining medical treatment is in his best interests. While it would generally be the right of Christopher's parents to make the determination of what medical treatment (or cessation thereof) is in his best interests, there are two reasons why it was appropriate for the juvenile court in this case to abrogate those rights. First, Moises and Tamara, by their actions, forfeited their rights to determine what is and is not in Christopher's best interests. (In re K. I., supra, 735 A.2d at pp. 453-454 [court had obligation to make decisions regarding issuance of a DNR order, in part, because parent's neglect had caused court to exercise jurisdiction over the child].) There was proof by clear and convincing evidence that Moises's actions in severely shaking Christopher and throwing him against his *139 crib rails directly caused Christopher's current vegetative state. Such proof also showed that Tamara failed to protect Christopher from Moises, despite witnessing episodes of shaking prior to the ultimate one.
Second, in a situation where the dependent child's two parents have a fundamental disagreement over what medical care is appropriate, the juvenile court has the authority to make the decision that is in the child's best interests. (In re K. I., supra, 735 A.2d at p. 454 [District of Columbia took no position on issuance of a DNR for comatose child with severe medical problems; one of the child's parents sought a DNR, while the other was willing to undertake any and all medical care to keep the child breathing].)
The court has an equitable duty to protect the welfare of the children within its jurisdiction. "The state has a `parens patriae interest in preserving and promoting the welfare of the child. . . .'" (In re Sade C. (1996) 13 Cal. 4th 952, 989, 55 Cal. Rptr. 2d 771, 920 P.2d 716, quoting Santosky v. Kramer (1982) 455 U.S. 745, 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599.) The parens patriae power permits a court with jurisdiction over an individual under a disability to order withdrawal of his or her life-sustaining medical treatment. (In re Quinlan (1976) 70 N.J. 10, 355 A.2d 647, 665-666.) As the court explained in In re Quinlan, the first significant case considering the rights of the incompetent with respect to withdrawal of life-sustaining medical treatment, the courts have a nondelegable responsibility to make these decisions as a result of their inherent equitable powers. (Ibid.)
The juvenile court was therefore authorized to exercise its parens patriae power to make medical decisions in Christopher's best interests including, but not limited to, the decision to withdraw life-sustaining medical treatment.
3. The juvenile court was not required to appoint a guardian for Christopher.
We reject Moises's argument that the juvenile court was required to appoint a guardian for Christopher, or to cede to a legal guardian the right to decide whether to withdraw Christopher's life-sustaining medical treatment.
In dependency cases involving child abuse or neglect, California law requires the appointment of a guardian ad litem for a minor. (§ 326.5.)[3] The same statute expressly provides that this role may be filled by either the attorney appointed by the juvenile court to represent the minor's interests, or by a court-appointed special advocate. (§§ 317, 326.5; In re Charles T. (2002) 102 Cal. App. 4th 869, 125 Cal. Rptr. 2d 868.) If an attorney is appointed to represent the minor's interests, the juvenile court need not appoint a separate guardian ad litem. (In re Charles T., supra 102 Cal.App.4th at p. 879, 125 Cal. Rptr. 2d 868.) While the California Rules of Court permit the juvenile court to appoint a guardian ad litem to *140 represent a dependent child when appropriate under the circumstances, they do not require such an appointment. (Cal. Rules of Court, rule 1438(f).)
Dority v. Superior Court, supra, 145 Cal. App. 3d 273, 193 Cal. Rptr. 288 also supports our conclusion that the juvenile court had the authority to enter the order from which Moises appeals without appointing a guardian for Christopher. In that case, a 19-day-old infant was admitted to a hospital with a possible seizure disorder. (Id. at p. 275, 193 Cal. Rptr. 288.) The infant's condition deteriorated, and tests performed one week after admission and then one month later indicated brain death. (Ibid.) The infant's doctor recommended removal from the artificial respirator. (Ibid.) The infant's parents had been arrested and charged with felony child neglect or child abuse, and refused to consent to removal from the respirator. (Id. at p. 276 & fn. 2, 193 Cal. Rptr. 288.) An unidentified person or entity petitioned the court to appoint a guardian to consent to termination of the infant's life support. (Ibid.) The court appointed the Director of the Department of Public Social Services as temporary guardian. (Ibid.)
Moises cites Dority v. Superior Court, supra, 145 Cal. App. 3d 273, 193 Cal. Rptr. 288, in support of his argument that the juvenile court erred in failing to appoint a guardian for Christopher. We disagree with Moises for two reasons. First, the court specifically pointed out that in the case of a minor who is the victim of child abuse, the issue of withdrawal of life-sustaining medical treatment would be better handled by the dependency court, rather than through a guardianship proceeding. "Welfare and Institutions Code section 300 et seq. would seem to provide a more appropriate vehicle for expeditiously resolving these problems." (Id at p. 278, fn. 3, 193 Cal. Rptr. 288.) Moises argues that Dority v. Superior Court cannot support the dependency court's decision because that case does not cite to a specific section within the Welfare and Institutions Code. The lack of a specific statutory reference is unpersuasive. The minor's parents were unable to provide for the child's care because of the abuse they were alleged to have inflicted on the minor and their subsequent incarceration. The court properly noted that under these circumstances the minor could have been made a dependent of the court, in which case the court would have had the authority to make the decision regarding withdrawal of life-sustaining medical treatment. The use of the guardianship proceeding was an alternative to dependent status, and the court was not called upon to specify the procedures that would have been used if the dependency procedure had been implemented instead.
Second, despite the fact that a guardian was appointed for the minor in Dority v. Superior Court, it was ultimately the court that made the decision to withdraw lifesustaining medical treatment from the minor.
In re K. I., supra, 735 A.2d 448, also supports our conclusion. In that case, the District of Columbia Court of Appeals was faced with a factual scenario similar to the one here. Infant K.I. was comatose and "`neurologically devastated.'" (Id. at p. 450.) K.I. had been born prematurely, and as a result suffered from several serious medical problems. (Id. at pp. 450-452.) At the age of six and a half months, K.I. was removed from her mother's care on grounds that her mother had neglected K.I. by failing to ensure K.I. received necessary oxygen and medications, and by failing to ensure K.I. was properly connected to necessary heart and apnea monitors. (Id. at p. 451.) The family division of the Superior Court of the District of *141 Columbia obtained jurisdiction over K.I. as the result of a neglect petition filed against K. I.'s mother. (Id. at pp. 451, 453-454.)
The guardian ad litem appointed for K.I. requested that the court issue a DNR order. (In re K. I., supra, 735 A.2d at pp. 457-458.) The court held an evidentiary hearing on the guardian ad litem's request. (Id. at p. 458.) The guardian ad litem and one of K. I.'s putative fathers supported issuance of a DNR order, and the government took no position. (Ibid.) Both K. I.'s treating physician and an expert in pediatric care and bioethics testified that K.I. was neurologically devastated, capable of feeling pain and discomfort, unable to respond to other stimuli or react to her environment, could not comprehend the world around her, and was incapable of giving or receiving love. (Id. at pp. 458-459.) Two other physicians testified as experts in pediatrics, and the director of a northern Virginia hospice testified as an expert in bioethics. (Id. at p. 459.) One of K. I.'s putative fathers also testified. (Ibid.) All of these witnesses agreed that a DNR order should issue. (Ibid.) Only K. I.'s mother and the other putative father opposed issuance of a DNR order, despite evidence that K.I. had no hope for recovery and resuscitation attempts would only cause her pain. (Id. at pp. 459-60.) K. I.'s mother testified "`any amount of pain is worth it as long as K.I. breathes.'" (Id. at p. 460.)
The family division of the superior court found, and the court of appeals affirmed, that issuance of a DNR order required a "finding by clear and convincing evidence both that it is in K. I.'s best interests to forego aggressive revival measures, and that [mother's] refusal to consent to the issuance of the DNR order is unreasonably contrary to K. I.'s well-being." (In re K. I, supra, 735 A.2d at p. 464.)
The court also determined it had jurisdiction to enter the DNR order because K.I. was a child subject to the court's jurisdiction as a result of her mother's neglect, and therefore the court's parens patriae duty required the court to "tak[e] responsibility for [K. I.'s] course of treatment." (In re K. I, supra, 735 A.2d at p. 461.) The court of appeals affirmed this jurisdictional finding. (Id. at pp. 453-454.)
Moises argues that because the guardian ad litem appointed for K.I. initiated the hearing to determine whether a DNR order should issue, In re K.I. supports his contention that the juvenile court in this case lacked jurisdiction to enter the order authorizing withdrawal of Christopher's life-sustaining medical treatment. We disagree.
The District of Columbia requires the appointment of a guardian ad litem for a minor in every case alleging neglect. "The Superior Court shall in every case involving a neglected child which results in a judicial proceeding, . . . appoint a guardian ad litem who is an attorney to represent the child in the proceedings. The guardian ad litem shall in general be charged with the representation of the child's best interest." (D.C.Code, § 16-2304(b)(5).) The District of Columbia's statutory scheme is different from California's. The appointment of a guardian ad litem for K.I. therefore does not prove that the lack of a guardian in this case was improper. An attorney had been appointed for Christopher whose "primary responsibility" under California law was to "advocate for the protection, safety, and physical and emotional well-being of the child." (§ 317, subd. (c).) Under California's statutory scheme, the appointed attorney serves the same function as the required guardian ad litem in the District of Columbia. Under section 326.5, appointment of a guardian ad litem in addition to appointment of an *142 attorney under section 317 was not required for Christopher.
Barber v. Superior Court, supra, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484, also supports our conclusion. In that case, the court rejected the state's argument that only a legal guardian appointed by the court could make the decision to withdraw life-sustaining medical treatment from an adult in a persistent vegetative state. "While guardianship proceedings might be used in this context, we are not aware of any authority requiring such procedure." (Id. at p. 1020, 195 Cal. Rptr. 484.) The court was careful to note that a requirement that a legal guardian make the decision to withdraw life-sustaining medical treatment from an incompetent patient would have to come from the Legislature. "In the absence of legislation requiring such legal proceedings, we cannot say that failure to institute such proceedings made petitioners' conduct unlawful. Whether such proceedings are to be required in the future is again a question for the Legislature to decide." (Id. at p. 1021, 195 Cal. Rptr. 484.) Almost 20 years later, the Legislature has not enacted a statute requiring the use of guardianship proceedings in cases involving either minors or adults who are no longer competent to make medical decisions. We find that telling.
C. Indian Child Welfare Act (ICWA) Title 25 United States Code section 1901 et seq.
1. Facts relevant to ICWA analysis.
(a) The original record on appeal
When the dependency petition was initially filed on December 21, 2001, SSA did not state that Christopher might be a member of, or eligible for membership in, a federally recognized Indian tribe, or that he was of Indian ancestry. In an interview with a social worker, however, Tamara had previously stated "she was part Indian from the Puma Tribe." Moises indicated he had no information as to Christopher's American Indian heritage.
In the permanency hearing report, filed August 26, 2002, SSA indicated that notice had been sent to the Puma Indian tribe and the Bureau of Indian Affairs (the BIA), but that no response had yet been received. A search by SSA of the listings of federally recognized tribes did not locate a tribe by the name of Puma. The BIA confirmed that such a tribe was unknown to that agency.
At that point, SSA had attempted to communicate with the tribe identified by Tamara, and had notified the BIA. Tamara then came up with another possible name of the tribe she claimed to belong to Pima. SSA then checked with the Gila River Indian Community in Sacaton, Arizona, which maintains the records for the Pima tribe. On September 9, 2002, the Gila River Indian Community wrote to SSA, stating, "Base[d] on my research for a Christopher I[.] with date of birth as . . . and Social Security # . . ., the son of Tamara S[.], which I find no person on the Gila River Indian Community roll book, base[d] on the information you provided." The actual notification from SSA to the Gila River Indian Community was not included in the record on appeal.
(b) Request for judicial notice; augmentation of record
SSA filed a request for judicial notice with this court on February 11, 2003, to add documents to the record showing SSA's additional notices to the BIA and the Pima tribes sent in January 2003, and the responses of the BIA and the tribes. All of the documents attached to the request for judicial notice were filed in the case in the juvenile court. (Cal. Rules of *143 Court, rule 12(a)(1)(A).) Christopher, through his counsel, joined in the request on February 18, 2003. Moises had never raised the issue of ICWA compliance by the time the deadline (absent extraordinary circumstances) for augmenting the record on appeal passed. Therefore, SSA could not have known additional material would be necessary in the appellate record. It appears from the documents attached to the request for judicial notice that SSA moved promptly to remedy any alleged deficiencies in the record.
The request for judicial notice is denied because the requirements of Evidence Code sections 452, subdivision (d), and 459, are not satisfied. However, on our own motion, in the interests of justice, we hereby augment the record on appeal with the materials attached to SSA's request for judicial notice.[4] (Cal. Rules of Court, rule 12; Code Civ. Proc, § 909.) "In all cases where trial by jury is not a matter of right . . ., the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. . . . The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal. . . . This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court. . . ." (Code Civ. Proc, § 909, italics added.)
The extraordinary circumstances of this case justify augmentation of the record at this time in the interests of justice. In In re Antoinette S. (2002) 104 Cal. App. 4th 1401, 129 Cal. Rptr. 2d 15, as in other cases, we approved augmentation of the record on appeal, but in that case there was no objection to the motion to augment. (Id. at p. 1412, 129 Cal. Rptr. 2d 15.) We are not limited to augmenting the record under such circumstances, however. The California Legislature, in Code of Civil Procedure section 909, has granted the express authority exercised here. In our view, the interests of justice require that we augment the record in this case because remand of this matter would be futile and would not be in Christopher's best interests. To decline to augment the record in this case would only serve to prolong Christopher's suffering.
(c) The augmented record
On January 22, 2003, SSA sent notice of the proceedings and a request for confirmation of Christopher's status as an Indian child to the BIA, the Gila River Indian Community Council, and the Salt River Pima-Maricopa Indian Community Council. These documents identified the names and birthdates (if known) of Christopher, Tamara, Tamara's parents, and Tamara's grandfather. The documents further indicated that Tamara's father and grandfather might be affiliated with the Arizona Pima Indian tribe, although it was unknown *144 whether they were enrolled in the tribe.
On January 27, 2003, the Salt River Pima-Maricopa Indian Community confirmed in writing that Christopher, Tamara, and Tamara's parents were not enrolled as members of the community, and that Christopher was "not eligible for enrollment through any relative listed in the inquiry."
On February 3, 2003, the Gila River Indian Community confirmed in writing that Christopher was not listed as an enrolled member of the community. It also confirmed that Tamara, her parents and her grandfather were not listed as enrolled members, meaning that Christopher was not eligible for membership.
2. Summary of the parties' positions.
Moises argues that the juvenile court could not authorize withdrawal of Christopher's life-sustaining medical treatment because, in his view, ICWA has not been complied with. SSA argues, to the contrary, that it provided all notices required under ICWA, and that if there was any error, it was harmless. Christopher's counsel joins in SSA's argument. Tamara makes the same arguments as SSA does, but also argues her petition to discontinue Christopher's life support did not trigger the need for further notice under ICWA, and that even if SSA failed to provide the proper notice, the juvenile court still had the authority to enter orders relating to medical care in Christopher's best interests.
3. Will more notices serve the purposes of ICWA?
Tamara's suggestion that her grandfather was a member of some unknown tribe was sufficient to trigger the notice requirements under ICWA, title 25 United States Code section 1912(a). (Cal. Rules of Court, rule 1439(f); In re Antoinette S., supra, 104 Cal.App.4th 1401,1406,129 Cal. Rptr.2d 15.) SSA mailed notices to the BIA and the identified Indian tribes as described above. We express serious doubts about whether any more notices would serve the purposes of ICWA in this case.
ICWA was enacted in response to "`rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.'" (In re Alexandria Y. (1996) 45 Cal. App. 4th 1483, 1488-1489, 53 Cal. Rptr. 2d 679.) The policy of ICWA is set forth in section 1902 of title 25 of the United States Code: "The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs."
No one proposes to separate Christopher from an Indian family and place him with a non-Indian family. Whether the juvenile court ruled that withdrawal of lifesustaining medical treatment from Christopher was or was not in his best interests, the stability and security of any Indian tribe or Indian family would not be served. Christopher will never be able to appreciate his alleged Indian ancestry, nor will he procreate and advance the lineage or culture of any Indian tribe.
*145 Christopher's situation is hopeless. He is in a persistent vegetative state, and his condition is irreversible. He is suffering. He will continue in this condition indefinitely only because machines force air into his lungs and nutrition into his stomach. We cannot believe that the United States Congress intended that if SSA failed to give more notice to an Indian tribe or the BIA under the facts presented in this case, all orders of the juvenile court must be reversed. This conclusion is particularly true in this case, because clear and convincing evidence has shown that the purposes of ICWA have been frustrated by Moises's own violent acts.
In this case, more notices to tribes could not have advanced the purposes of ICWA. Where giving literal meaning to a seemingly unambiguous statute would lead to an absurd result or fail to carry out the manifest purpose of the statute, we may construe its language differently; both the United States Supreme Court and the California Supreme Court have so held. (United States v. American Tmcking Asms. (1940) 310 U.S. 534, 543, 60 S. Ct. 1059, 84 L. Ed. 1345; Times Mirror Co. v. Superior Court (1991) 53 Cal. 3d 1325, 1334, fn. 7, 283 Cal. Rptr. 893, 813 P.2d 240; see also In re Charles T, supra, 102 Cal. App. 4th 869, 878, 125 Cal. Rptr. 2d 868 ["we must construe the various statutes to avoid absurdity and unreasonable results"].)
An interpretation of the relevant statutes here, as argued by Moises, could do no more than to prolong Christopher's irreversible suffering. This result would be absurd and would not serve the purposes of ICWA. The wisdom of Judge Learned Hand illustrates why in appropriate cases we need to give meaning to the purpose of a statute. "Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." (Cabell v. Markham (2d Cir.1945) 148 F.2d 737, 739.)
Nothing in the record on appeal or in the arguments of counsel suggests that Christopher does, in fact, have any Indian heritage. There is no reason consistent with the legislative purpose of ICWA to require more notice.
4. Application of the usual ICWA analysis.
(a) Even if we had not augmented the record on appeal, we would, find no error.
Applying the traditional ICWA analysis to the original record on appeal, we find no error in SSA's notices. SSA complied with the requirements of ICWA. Notice was sent by SSA to the BIA. In its report filed August 26, 2002, SSA stated it had notified the Puma Indian tribe, the tribe of which Tamara claimed to be a member. In its Interim Review Report filed September 12, 2002, SSA stated it could not locate any tribe by the name of Puma. SSA did not explain its earlier statement that it notified the Puma tribe. The BIA confirmed that the Puma tribe was unknown to that agency.
When Tamara later came up with another name of the tribe she claimed to belong to, SSA then checked with the Gila River Indian Community in Sacaton, Arizona, which maintains the records for the Pima Indian tribe. That organization also had no record of Christopher's membership in the Pima tribe.
Substantial compliance with the notice requirements of ICWA is sufficient. (In re Kahlen W. (1991) 233 Cal. App. 3d 1414, 1421-1422, 285 Cal. Rptr. 507.) SSA must provide the tribe with notice of the pendency of the proceedings and the opportunity *146 to intervene in them. (In re Suzanna L. (2002) 104 Cal. App. 4th 223, 232, 127 Cal. Rptr. 2d 860.) When the specific tribe cannot be identified, SSA must provide notice to the BIA. In this case, the Puma tribe identified by Tamara could not be located, and notice was sent to the BIA. In doing so, SSA fulfilled its obligations under ICWA, and there was no error. The parties have cited us to numerous cases dealing with compliance with ICWA under the facts of those cases. But no case cited is really analogous to this case, and therefore we do not discuss those cases.
(b) Having augmented the record on appeal, we find no error in notice under ICWA
After SSA complied with ICWA in September 2002, Moises raised the issue of ICWA compliance on appeal. SSA sent notice to the BIA again and to two Pima tribes. SSA has provided this court with copies of the notices, and the responses from the BIA and the tribes. These materials, with which we have augmented the record on our own motion, confirm that SSA complied with ICWA's notice provisions.
Moises argues in his reply brief on appeal that SSA failed to send notice to yet another tribe identified in the Federal Register the Pauma tribe. We will not turn the process of ICWA notice into a game, where a party sees how many different but similar-sounding names of Indian tribes he or she can come up with. Lest we forget, the original notice to the BIA suggested the name of the "Puma" tribe. The purpose of notice to the BIA is to determine whether a tribe SSA cannot identify exists. The BIA did not identify the Pauma tribe in response to SSA's inquiry, and SSA was not required to continue its search after the results from the Pima tribes came back negative.
Moises also argues the matter must be remanded to the juvenile court to make a factual finding based on the Pima tribes' responses that Christopher is not an enrolled member and is not eligible for membership. Because "[a] tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive" (Cal. Rules of Court, rule 1439(g)(1)), any further factual finding by the juvenile court is unnecessary.
(c) Any error was harmless.
In response to SSA's January 2003 notices (which are a part of the augmented record), the Sacramento office of the BIA replied that the Salt River Pima-Maricopa Indian Community and the Gila River Indian Community Council were not within its jurisdiction, and should be contacted directly. In a petition for rehearing, Moises argues that remand is necessary because this reponse by the BIA was ambiguous. Notice to the BIA is only required if the identity or location of a tribe cannot be determined. SSA identified and located two Pima tribes and provided notices to them. SSA's January 2003 notice to the BIA was therefore superfluous. Even if there were an ambiguity in that notice or in the BIA's response, it is irrelevant.
Even if SSA did not satisfy the notice requirements under ICWA, it is not jurisdictional error that deprived the juvenile court of the ability to consider the petition for withdrawal of life-sustaining medical treatment. "[V]iolation of the 10-day period of notice required by ICWA is not jurisdictional error. The very fact that notice problems are sometimes deemed harmless in ICWA cases [citation] indicates such error is not jurisdictional." (In re Antoinette S., supra, 104 Cal.App.4th at p. 1410,129 Cal. Rptr. 2d 15.)
Any error on the part of SSA in this case would be harmless. There is no reason to believe that Christopher is an Indian child, nor is there any reason to believe more notices over more time will result in any more information. Indeed, in the new material provided by SSA, two specific Pima tribes declined to assert any right to become involved in these proceedings, and *147 determined that Christopher is not an enrolled member of the tribe or eligible for membership. Even if Christopher were an Indian child, his condition would prevent him from ever being a part of an Indian family or tribe, participating in the cultural heritage of an Indian tribe, or appreciating the values of Indian culture.[5] The medical evidence presented at the hearing was compelling and consistent. Moises presented no contrary medical evidence, and there is absolutely no reason to believe anyone else Indian tribes included could produce any other medical evidence concerning Christopher.
D. The juvenile court's refusal to appoint a guardian ad litem for Tamara or to order a psychological evaluation of her was not in error.
Moises also contends that the court's failure to grant his request to appoint a guardian ad litem for Tamara or order a psychological evaluation of her constitutes reversible error. We initially question whether Moises may raise this issue on appeal. "The statutes regarding appointment of guardians ad litem were enacted to protect minors and insane and incompetent persons." (Briggs v. Briggs (1958) 160 Cal. App. 2d 312, 319, 325 P.2d 219.) Moises does not cite, and we have not located, any case in which a competent party challenges a court's order granting the relief sought by an allegedly incompetent party on the ground that the winning party was incompetent. We see no need to "protect" Tamara from the relief she herself sought in this case. If Moises was really arguing that Christopher needed protection from Tamara, the juvenile court's decision to hold an evidentiary hearing before life-sustaining medical treatment could be withdrawn, a decision we agreed with (Tamara S. v. Superior Court, supra, G030646), provided whatever protection was needed.
Even if Moises has standing to challenge the court's refusal to appoint a guardian ad litem for Tamara, we conclude there was no error in the court's decision that Tamara was able to understand the proceedings and participate with counsel. A guardian ad litem may be appointed for a parent in a dependency proceeding if he or she is determined to be incompetent under either the standards of Probate Code section 1801 or Penal Code section 1367. (In re Sara D. (2001) 87 Cal. App. 4th 661, 667, 104 Cal. Rptr. 2d 909.) The court's failure or refusal to appoint a guardian ad litem is reviewed for an abuse of discretion. (In re Ronell A. (1996) 44 Cal. App. 4th 1352, 1368, 52 Cal. Rptr. 2d 474.)
In support of his request that a guardian ad litem be appointed to represent Tamara, Moises argued that Tamara did not cook, could not navigate the public transportation system, and had been referred to the county for social services.
The juvenile court appears to have based its decision not to grant Moises's request to appoint a guardian ad litem for Tamara on the standards of Penal Code section 1367, subdivision (a), which provides in part: "A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner."
*148 The juvenile court did not abuse its discretion in determining whether a guardian ad litem for Tamara was required. The juvenile court had significant opportunities to consider Tamara's competence and her ability to understand the dependency court proceedings and to assist her counsel, having considered her testimony at the jurisdiction hearing. The court made a factual finding that Tamara's mental disability was not sufficiently severe that she would be unable to understand the proceedings or assist her counsel. Tamara's counsel supported that conclusion. The juvenile court and Tamara's counsel were in a far better position than we are to analyze Tamara's competence.
In any event, the determination for the juvenile court was whether Tamara could understand the nature of the proceedings against her and cooperate with counsel in protecting her interests. (In re R.S. (1985) 167 Cal. App. 3d 946, 979, 213 Cal. Rptr. 690.) The evidentiary hearing regarding withdrawal of Christopher's life-sustaining medical treatment was not a proceeding against Tamara, and her best interests were not at issue. The juvenile court did not abuse its discretion in denying Moises's request on this ground.
Although the juvenile court did not expressly consider Probate Code section 1801, we find no abuse of discretion under its standards either. Probate Code section 1801 provides in relevant part: "(a) A conservator of the person may be appointed for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter . . . . [¶] (b) A conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence . . . . [¶] . . . [¶] (e) The standard of proof for the appointment of a conservator pursuant to this section shall be clear and convincing evidence." There was no evidence, much less clear and convincing evidence, that Tamara was unable to provide properly for her personal needs for health, food, clothing or shelter, or that she was unable to manage her own financial resources. Given the nature of the proceedings, Tamara's inability to care for her personal needs or manage her money was not relevant to the juvenile court's decision, and the juvenile court did not abuse its discretion.
DISPOSITION
The order of the juvenile court is affirmed.
WE CONCUR: RYLAARSDAM, Acting P.J., and BEDSWORTH, J.
NOTES
[1] Christopher's counsel asks this court to dismiss Moises's appeal on the ground Moises is only Christopher's alleged father and therefore lacks standing to pursue the appeal. Moises participated fully in the proceedings below through his counsel, without objection from any of the parties. Christopher's counsel waived the issue of Moises's standing to participate in this matter by failing to raise the issue below. (In re Cynthia C. (1997) 58 Cal. App. 4th 1479, 1491, 69 Cal. Rptr. 2d 1; In re Anthony P. (1995) 39 Cal. App. 4th 635, 641, 46 Cal. Rptr. 2d 107.) In any event, in a prior order we made clear that any argument or objection based on Moises's paternity status is irrelevant to the issues presented by this appeal.
[2] Withdrawal of life-sustaining medical treatment is not the same as physician-assisted suicide. California courts have correctly observed that the "decision to allow nature to take its course is not equivalent to an election to commit suicide with [medical professionals] aiding and abetting therein." (Bouvia v. Superior Court (1986) 179 Cal. App. 3d 1127, 1144-1145, 225 Cal. Rptr. 297; see also Bartling v. Superior Court (1984) 163 Cal. App. 3d 186, 209 Cal. Rptr. 220.)
[3] "The Judicial Council shall adopt a rule of court effective July 1, 2001, that complies with the requirement of the federal Child Abuse Prevention and Treatment Act (Public Law 93-247) for the appointment of a guardian ad litem, who may be an attorney or a court-appointed special advocate, for a child in cases in which a petition is filed based upon neglect or abuse of the child or in which a prosecution is initiated under the Penal Code arising from neglect or abuse of the child. The rule of court may include guidelines to the courts for determining when an attorney should be appointed rather than a court appointed special advocate, and caseload standards for guardians ad litem." (§ 326.5.)
[4] The documents with which we are augmenting the record are the following: (a) a letter from the BIA dated September 6, 2002; (b) forms 318 and 319 sent by SSA to the BIA, the Gila River Indian Community and the Salt River Pima-Maricopa Indian Community Council on January 22, 2003, and the form 319 sent by SSA to Tamara and to Moises on January 22, 2003; (c) proofs of service, certified mail receipts and facsimile cover pages from SSA sending the forms 318 and 319 to the BIA, the Gila River Indian Community, the Salt River Pima-Maricopa Indian Community Council, Tamara, and Moises; (d) a letter from the BIA dated January 24, 2003; and (e) letters from the Salt River Pima-Maricopa Indian Community Council dated January 27, 2003, and from the Gila River Indian Community dated February 3, 2003.
[5] Even if we accepted Moises's arguments regarding ICWA which we do not the appropriate disposition would be to remand to the juvenile court to ensure that notices arguably required under ICWA were sent. The order withdrawing life-sustaining medical treatment would become effective as soon as the statutory time had passed without sufficient competent evidence provided to the juvenile court that Christopher is an Indian child. (In re Suzanna L., supra, 104 Cal. App.4th at p. 237, 127 Cal. Rptr. 2d 860.) We already know from the augmented record that all arguably required notices have been sent and that Christopher is neither a member of any tribe nor eligible for membership. Remand would be senseless under these circumstances. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261061/ | 240 P.3d 360 (2009)
Alan SIDMAN and Sheryl Sidman, Plaintiffs-Appellees,
v.
Michael SIDMAN and Renee Sidman, Defendants-Appellants.
No. 08CA2454.
Colorado Court of Appeals, Div. II.
October 29, 2009.
*361 Beltz & West, PC, Daniel A. West, Colorado Springs, Colorado, for Plaintiffs-Appellees.
Leo L. Finkelstein, Colorado Springs, Colorado, for Defendants-Appellants.
Opinion by Justice ROVIRA.[*]
Michael Sidman and Renee Sidman, the guardians and aunt and uncle of minor child, D.I.S., appeal from the district court's order considering the guardians' income in the determination of child support to be paid by Alan Sidman and Sheryl Sidman, D.I.S.'s parents, and requiring the guardians to travel with the child to Massachusetts at their own expense to allow for parenting time with the parents. They assert (1) that their income should not have been included in the determination of child support to be paid by the parents; (2) that their capital gains should not have been included in the court's determination of child support; (3) that the court erred when it concluded it could not increase support above the top amount set in the guidelines based on the parties' combined gross incomes; and (4) that the court erred when it ordered them to travel with D.I.S. to Massachusetts at their own expense in order to allow for parenting time. Because we conclude the court erred in considering the guardians' income in the child support determination and in ordering them to travel at their own expense, we reverse and remand.
I. Background
In 2002, the aunt and uncle were appointed permanent guardians of D.I.S. In 2006, the parents moved to terminate the guardianship. In 2007, the district court denied the motion. The parents appealed, and a division of this court affirmed. In re D.I.S., (Colo.App. No. 07CA1971, Apr. 23, 2009) (not published pursuant to C.A.R. 35(f)).
Following the district court's ruling concerning guardianship of D.I.S., the guardians moved to establish child support. In a pretrial order, the court ruled that the statutes pertaining to guardianships allowed the guardians to apply for child support, and at the support hearing the court would follow the standards set out in section 14-10-115, C.R.S.2009, for determination of support.
At trial, the guardians argued that their income should not be considered in the court's calculation of support owed by the parents. The guardians further argued that if their income were to be included, their 2005-2007 capital gains should be excluded because they were from sales of investments made to pay for their own children's college educations.
At trial, the parents argued that their only duty of support was to reimburse the guardians for out-of-pocket expenses pursuant to the guardianship statutes. The district court held that pursuant to section 14-10-115, it was required to consider the income of both the parents and the guardians in determining the amount of child support due from the parents. Without the inclusion of the guardians' income in the child support determination, the parents would have had a monthly duty of support of $1,380.80 based on their combined monthly gross income of $12,585. With the inclusion of the guardians' income however, the parents' monthly duty of support was $371.
The court rejected the guardians' arguments that sections 15-14-207 and 15-14-209, C.R.S.2009, applied to the determination of child support. The district court also ordered that the guardians would be responsible for taking D.I.S. to Massachusetts for court-ordered visits with his parents, at the guardians' expense.
II. Child Support Determination
The guardians first contend that the district court erred by considering their income in the determination of child support to be paid by the parents. We agree.
*362 A. Law
Whether a court has applied the correct legal standard to a case is a matter of law. Freedom Colo. Info. Inc. v. El Paso County Sheriff's Dep't, 196 P.3d 892, 897 (Colo.2008). We review de novo whether the trial court applied the correct legal standard in making its findings. People in Interest of J.R.T., 55 P.3d 217, 219 (Colo.App.2002), aff'd sub nom. People v. Martinez, 70 P.3d 474 (Colo.2003).
In interpreting a statute, we must determine and effectuate the intent of the General Assembly. Davison v. Indus. Claim Appeals Office, 84 P.3d 1023, 1029 (Colo. 2004). We strive to construe a statute as a whole, giving consistent, harmonious, and sensible effect to all of its parts; we will not adopt an interpretation that leads to illogical or absurd results. Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 593 (Colo.2005); Frazier v. People, 90 P.3d 807, 811 (Colo. 2004). If the plain language of the statute is clear and unambiguous, we interpret the statute according to its plain meaning. Davison, 84 P.3d at 1029.
Section 14-10-115 (1)(a), C.R.S.2009, states, "The child support guidelines and schedule of basic child support obligations have the following purposes: (I)[t]o establish as state policy an adequate standard of support for children, subject to the ability of parents to pay...." Section 14-10-115(1)(b), C.R.S.2009, provides, "The child support guidelines and schedule of basic child support obligations do the following: (I) [c]alculate child support based upon the parents' combined adjusted gross income...."
In In re Marriage of Conradson, 43 Colo. App. 432, 434, 604 P.2d 701, 703 (1979), a division of this court concluded that the factors to be considered in making a support award under section 14-10-115 do not include the financial resources of a nonparent with whom the child is living.
In addition, section 15-14-209(2), C.R.S.2009, states, "A guardian need not use the guardian's personal funds for the ward's expenses." In In re J.C.T., 176 P.3d 726, 730 (Colo.2007), the supreme court stated, "Generally probate courts establish guardianships for the purpose of protecting and caring for those in society who cannot fend for themselves...." A guardian is "responsible for the ward's physical well-being," including the provision of "shelter, food, clothing, medical care or other necessities of life." Id. (quoting Peter Mosanyi, Comment, A Survey of State Guardianship Statutes: One Concept, Many Applications, 18 J. Am. Acad. Matrimonial Law. 253, 255 (2002)). A guardian "has essentially the same authority and responsibilities with regard to the child as a parent would have, with the exceptions that the guardian typically does not provide the financial resources to support the child and serves solely at the pleasure of the appointing court." Id.
B. Application
Here, in determining child support, the district court concluded it should follow the standards set forth in section 14-10-115 and was required to consider the income of both the guardians and the parents.
The guardians argue that there is no provision in the child support statute allowing for the use of their income in determining the appropriate amount of child support to be paid by the parents.
We conclude that the plain language of section 14-10-115 states that only the parents' incomes can be included in the determination of the amount of child support. This conclusion is supported by section 15-14-209(2), which states, "A guardian need not use the guardian's personal funds for the ward's expenses."
We reject the parents' contention that the cases they cite compel a different result. Unlike In re Marriage of Bonifas, 879 P.2d 478 (Colo.App.1994), the guardians in this case have not held themselves out as D.I.S.'s de facto parents, but instead were designated his legal guardians under a court order. In Bonifas, a division of this court concluded that there was a duty of support, not based on the child support statute, but instead based on a contract assuming full financial responsibility for the child. Unlike in Bonifas, no contractual relationship providing for *363 a duty of support is established under the facts of this case.
Similarly, unlike People in Interest of P.D., 41 Colo. App. 109, 580 P.2d 836 (1978), where the petitioner sought to end his obligation of support by terminating legal custody of a child, the guardians in this case do not seek to terminate guardianship; rather, they assert that under the guardianship statute they have no duty of support.
Finally, unlike In re Marriage of Rodrick, 176 P.3d 806 (Colo.App.2007), in this case no parental responsibility order was entered. In Rodrick, the division specifically distinguished the parental responsibility order from a guardianship by stating, "The parental responsibility order was not a guardianship order and did not create a ward-guardian relationship.... Rather ... the parental responsibility order was a prelude to [adoption]... and, as such, it had legal significance established by statute." Id. at 811.
We agree with the guardians' contention that under section 14-10-115, a guardian's income should not be included in the determination of the amount of support to be paid. Section 14-10-115 does not mention a guardian's duty of support. Rather, it states that child support is to be determined based on the combined adjusted gross income of the parents. § 14-10-115(1)(b)(I).
C. Conclusion
According to the plain language of section 14-10-115, only the parents' incomes are to be included in the determination of child support. Consequently, we conclude that the district court did not apply the correct legal standard when it included the guardians' income in the child support determination.
III. Traveling with the Child at the Guardians' Own Expense
The guardians next contend that the district court erred by requiring them to travel with D.I.S. to Massachusetts at their own expense to allow parenting time with D.I.S.'s parents. We agree.
Section 14-10-115(11)(a)(II), C.R.S.2009, provides that any expenses for transportation of the child "shall be divided between the parents in proportion to their adjusted gross income."
According to the plain language of section 14-10-115(11)(a)(II), travel expenses for a child shall be divided between the parents. Consequently, we conclude that the district court did not apply the correct legal standard when it ordered the guardians to travel with D.I.S. to Massachusetts, at their own expense.
IV. Other Issues
In light of our conclusion that the district court erred in considering the guardians' income in making the child support determination and in ordering them to travel at their own expense to allow for parenting time, we need not address the remaining issues.
The order is reversed, and the case is remanded for further proceedings consistent with this opinion.
Judge CASEBOLT and Judge KAPELKE concur.
NOTES
[*] Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2009. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261062/ | 131 Cal. Rptr. 2d 274 (2003)
106 Cal. App. 4th 914
The PEOPLE ex rel. Joe KERR et al., Plaintiffs and Respondents,
v.
COUNTY OF ORANGE, Defendant and Appellant.
No. G031750.
Court of Appeal, Fourth District, Division Three.
March 3, 2003.
As Modified on Denial of Rehearing April 2, 2003.
Review Denied June 11, 2003.
*275 Benjamin P. deMayo, County Counsel, Marianne Van Riper, Jeffrey M. Richard and Nicole A. Sims, Deputies County Counsel, for Defendant and Appellant County of Orange.
Law Offices of Philip B. Greer and Phillip B. Greer for Intervenor and Appellant William Campbell and for Foothill Homeowners Association as Amicus Curiae on behalf of Defendant and Appellant.
Ruth Sorensen, Alturas, for California State Association of Counties as Amicus Curiae on behalf of Defendant and Appellant.
JoAnne Speers, Sacramento, for League of California Cities as Amicus Curiae on behalf of Defendant and Appellant.
Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Steven L. Mayer and Richard C. Jacobs, San Francisco, for El Toro Reuse Planning Authority as Amicus Curiae on behalf of Defendant and Appellant.
Paul, Hastings, Janofsky & Walker, Stephen L. Berry, Costa Mesa, and Kenneth P. White, Los Angeles, for Orange County Business Council as Amicus Curiae on behalf of Defendant and Appellant.
Morrison & Foerster, Dean J. Zipser, Vikki L. Vander Woude, Adina L. Witzling, Irvine, Michael Feuer, Benjamin J. Fox, Los Angeles; Bill Lockyer, Attorney General, Andrea Lynn Hoch, Chief Assistant Attorney General, Louis R. Mauro, Senior Assistant Attorney General, and David M. Verhey, Deputy Attorney General, for Plaintiffs and Respondents.
OPINION
SILLS, P.J.
I. Introduction
The majority of California's 58 counties do not have charters. In those counties, the structure of county government is laid out in various statutes enacted by the Legislature and found in the state Government Code. Thirteen counties, not counting *276 Orange County, do have charters, in which the structure of county government is provided for in the charter itself, subject to certain restrictions in the California Constitution and state statutes.
Orange County is the 14th county with its own charter. However, its charter, adopted with the passage of Measure V in the March 2002 primary election, is atypical. It is very short so short, in fact, that we can quote all of it in a single footnote.[1] Its brevity is the result of a wholesale incorporation of the general laws of the state of California except as otherwise expressly provided for by the charter, and the charter has only one provision deviating from the general laws of California the manner of filling a vacancy in the county board of supervisors. Without this charter, the Governor would fill any vacancy. (Gov.Code, § 25060 ["Whenever a vacancy occurs in any board of supervisors, the Governor shall fill the vacancy. The appointee shall hold office until the election and qualification of his successor."].) Under the new charter enacted by Measure V, the voters in the supervisorial district elect the replacement, either (depending on the time) at a special election or at an upcoming general election.
*277 A group of citizens have now challenged Measure V, seeking to invalidate it on the theory that it is unconstitutional, or, if constitutional, on the theory that it was misleadingly described in the ballot materials. Their arguments fall into four major categories:
(1) Measure V does not literally comply with the provision of the state Constitution, article XI, section 4, that prescribes what a county charter must contain.[2]
(2) Measure V is substantively inconsistent with the idea of county home rule because it cedes various aspects of local government to the Legislature through the incorporation of the state's general law into the charter.
(3) The voters were given a misleading or defective description of the charter by the county's official lawyer, the county counsel, in the impartial analysis sent to the voters.
(4) The voters should have been given a fiscal impact statement as well as a description of the charter in their ballot materials. (See Elec.Code, § 9160.)
As explained in more detail below, none of these arguments is persuasive. The charter does literally comply with Article XI, section 4, because by incorporating the general law of California it provides for each of the requirements in that constitutional provision. And, there is nothing inherently inconsistent with home rule in the idea of county voters choosing to have most of the rules of county government made by the Legislature: If that, paradoxically, is the home choice, so be it. It isn't for the courts to take that right away from the county voters. In fact, as we show below, this charter actually facilitates home rule because it gives the voters the right to change rules made by the Legislature in the future, something they would not have without a charter. Indeed, merely by choosing a charter form, Orange County gained significant flexibility in dealing with future contingencies.
Further, California election law does not allow a litigant to contest an election on the theory that a 500-word impartial analysis was deficient. The reality of this case is that plaintiffs have tried to do exactly that undo an election by critiquing the impartial analysis provided with the ballot materials. While case law does allow the possibility that an impartial analysis can be so misleading and inaccurate that constitutional due process requires invalidation of the election, any alleged deficiencies in the county counsel's impartial analysis in this case come nowhere near to implicating any constitutional concerns.
Finally, the inclusion of a fiscal impact statement is clearly a discretionary matter under the terms of the relevant statute, and the board here was well within its discretion not to include one.
II. The Passage of the Measure, the Litigation, and the Subsequent Election
The idea of a charter to allow the county voters to decide on any vacancies was first proposed to the Orange County Board of Supervisors in late May 2001, and by July 2001, the board voted to put Measure V on the March 2002 ballot. The measure passed by a 52.8 percent to 47.2 percent margin in the March 2002 election, becoming effective on filing with the Secretary of State in April.
In September 2002, plaintiffs in this case filed, in their own names, a petition for a writ of mandate in the superior court seeking an injunction commanding the county *278 not to enforce Measure V on the ground it was unconstitutional. The county filed a demurrer in October. In November plaintiffs responded with a complaint in "quo warranto" hence the "People ex rel." in the caption.[3]
Also, after one of the five members of the board of supervisors was elected to the state Assembly in November, he resigned, and the remaining members of the board set January 28, 2003 as the date of a special election to fill the ensuing vacancy. The setting of the election prompted plaintiffs to seek an early hearing on a request for a preliminary injunction to stop the election. They got their early hearing date, which was December 19, 2002.
The preliminary injunction was denied, but the trial judge did decide to move the case along so that a full trial could be completed by January 28, 2003. He set January 21, 2003, the Tuesday a week before the scheduled election, as the day to begin trial. During the month of January the lawyers on both sides filed, on an almost daily basis, a great deal of paperwork with the court (briefs on various issues, motions in limine, requests for judicial notice, objections, that sort of thing). Trial consumed four days (January 21-24), ending on Friday, January 24.
On Saturday, January 25 during the last weekend before the election the trial court issued an 18-page written "minute" order concluding that Measure V was unconstitutional on the grounds of substantive (as distinct from literal) noncompliance with the state Constitution, and failure of the county counsel's impartial analysis to explain to the voters its full ramifications. Given the impending election, the trial court's solution was to issue an injunction which allowed the election to go forward, but not have the votes counted.
Within hours on that Saturday this court stayed that order. Because the trial court's minute order contemplated an immediate judgment in conformance with the minute order, we have deemed the minute order to incorporate such a judgment, a procedural device which allows appellate courts to expedite a case. (See Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal. App. 4th 535, 539, 4 Cal. Rptr. 2d 361 [construing unappealable minute order to incorporate an appealable judgment so as to avoid delay].) Plaintiffs then filed a formal request with this court asking that the election be put off pending appellate review of the proceedings. That request was denied, but plaintiffs were given an expedited briefing schedule so the appellate hearing could take place within the month. The election went forward, and Bill Campbell, who is also an intervenor in these proceedings, won, and has since taken office.
*279 The election was not meaningless in any event. As plaintiffs themselves acknowledged in requesting that this court stay the election, even if it were later determined that the winner had no right to hold office in the aftermath of his winning the election, the winner's actions in office could not be legally challenged or undone. (In re Redevelopment Plan for Bunker Hill (1964) 61 Cal. 2d 21, 42, 37 Cal. Rptr. 74, 389 P.2d 538.)
While plaintiffs asserted (in their request that this court stay the election) that the litigation would dampen the turnout, that was only a matter of speculation. Indeed, the ensuing publicity might have increased it. We will never know.
Moreover, to the degree that plaintiffs, concern might have been correct, plaintiffs have only themselves to blame. They might have brought their action sooner and moved it to trial sooner. In fact, they could have brought their action even before Measure V was passed in March 2002. Thus it is not surprising that included in the blizzard of papers that were filed with the trial court in the month before trial was Campbell's request that the case be dismissed because plaintiffs had waited too long to bring their challenge. While they certainly had the right to bring a constitutional challenge to the statute when they did, the fact that the litigation coincided with the election, and may have put a cloud on the actual election itself, is a matter of plaintiffs' own doing.
One more word is in order about the timing before we address the merits of the case: Superficially, it might look as if the trial court dallied on the case, waiting until the Saturday before the election to issue its order declaring Measure V unconstitutional, and thereby preventing an appellate court from reviewing the decision in any detail before the election. We are forced to disagree. We have outlined the chronology of the case in some detail in these past few pages to demonstrate that the trial judge made the best of the situation he was handed, and the timing problems were attributable to plaintiffs, who waited until the last opportune moment to challenge the measure. The case could have been filed much earlier than September 2002, plaintiffs could have received permission from the Attorney General's Office earlier to sue in the name of the People, and the case didn't need to sit around from September to late December but none of that was the trial judge's fault. When the trial court got the case it was tried and heard within the month, and the trial court issued an 18-page judicial decision within a day of the completion of the trial. By judicial standards (remember that judges have, by law, 90 days to make rulings in cases submitted to them) this was a remarkable accomplishment, and it was no doubt reflected in a number of late nights and much hard work put into the case by the trial judge. Even though, as we are about to explain, the trial judge came to erroneous conclusions, he cannot be faulted in his management of the case. (Perhaps a full trial wasn't needed, and the matter could have been handled on papers alone, but even here all you can say is that the trial judge erred on the side of letting each side have its day in court, which is hardly a bad thing.) All in all, Judge Banks showed diligence above the call of duty in tackling the case and bringing it to completion with the speed he did.
III. Measure v. Literally Complies With the State Constitution
We first address the contention that Measure V does not conform to the requirements of the state Constitution for county charters. This was not one of the *280 bases of the trial judge's decision, but the issue is still pressed by the plaintiffs.
Those requirements are set forth in Article XI, section 4. The provision begins with the words "County charters shall provide for:" and then lists a series of six paragraphs, (a) through (f), which enumerate various structural aspects of county government, which, in shorthand, might be paraphrased as: having a governing body; the compensation, terms and removal of members of that governing body; having elected sheriffs, district attorneys, assessors and other officers; doing the things that state statutes require counties to do; the various powers and duties of county agencies and officers; and county employers generally.
The last two paragraphs of Article XI, section 4, paragraphs (g) and (h), do not contain any specifications as to what a charter must provide, but make general statements about counties with charters and how the law operates as to them. Paragraph (g) states essentially that when a county has a charter, its charter provisions override state law to the degree that charters are "competent" to do so and not otherwise precluded by the state Constitution. Paragraph (h) states that charter counties have "all the powers" that noncharter counties have, i.e., a county doesn't lose the right to do anything it otherwise has the right to do if it has a charter.
Measure V incorporates by reference, wholesale, the provisions of "the general law set forth in the Constitution of the State of California and the laws of the State of California." The legal question before us is whether, by so doing, it "provides for" the various requirements specified in Article XI, section 4, paragraphs (a) through (f). If we take them one by one, we see that applicable general law, as it stands today (and on election day in March 2002) provides for each of the requirements of Article XI, section 4:
Paragraph (a): "A governing body of 5 or more members, elected (1) by district or, (2) at large, or (3) at large, with a requirement that they reside in a district."
Applicable general law: Government Code sections 23005 ["A county may exercise its powers only through the board of supervisors. . . ."]; 25000 ["Each county shall have a board of supervisors consisting of five members."] 25040 ["Each member of the board of supervisors shall be elected by the district which he represents, and not at large, except in any county in which supervisorial districts have not been established by law or ordinance . . . ."]; 25200 ["The board of supervisors may divide the county into . . . supervisorial districts"].[4]
Paragraph (b): "The compensation, terms, and removal of members of the governing body."
Applicable general law: Government Code sections 25300 ["The board of supervisors shall prescribe the compensation of all county officers and shall provide for the number, compensation, tenure, appointment and conditions of employment of county employees."]; 25000 ["the term of office of each member shall be four years"]; 3000 [forfeiture of office upon conviction of designated crimes]; 3001 [intoxication while in discharge of duties of office]; 3060 et seq. [corruption in office].
*281 Paragraph (c): "An elected sheriff, an elected district attorney, an elected assessor, other officers, their election or appointment, compensation, terms and removal."
Applicable general law: Government Code sections 24000 [listing various officers as "officers of a county," including sheriff, district attorney, and assessor]; 24009 [unless voters approve a proposal to make the positions appointed, "the county officers to be elected by the people are the treasurer, county clerk, auditor, sheriff, tax collector, district attorney, recorder, assessor, public administrator, and coroner"]; 24200 [all elected county officers are elected at the general election when the Governor is elected and take office on a certain day in the succeeding January]; 24201 [elected county officers hold office until successors are elected or appointed and qualified]; 25300 ["The board of supervisors shall prescribe the compensation of all county officers and shall provide for the number, compensation, tenure, appointment and conditions of employment of county employees."]; 3000 [forfeiture of office upon conviction of designated crimes]; 3001 [intoxication while in discharge of duties of office]; 3060 et seq. [corruption in office].
Paragraph (d): "The performance of functions required by statute."
Applicable general law: Actually, on this one, Measure V's own incorporation clause itself satisfies the requirement, as it says that the county will do what statutes require it to do, hence it provides for the performance of those functions. That might sound a little circular, but actually no other conclusion makes sense. The alternative is to read Article XI, section 4, paragraph (d) to require that a county charter literally have a section saying that the county will do all the functions required in myriad statutes, and then list all those functions one by one. That would be a Herculean task for any county counsel, and of course it would be easy to overlook some function somewhere required of counties in some obscure statute. General incorporation of statute law solves the problem rather elegantly.
Paragraph (e): "The powers and duties of governing bodies and all other county officers, and for consolidation and segregation of county officers, and for the manner of filling all vacancies occurring therein."
Applicable general law: Government Code sections 24300 [listing various combinations of county offices which may be consolidated]; 24301 [allowing board of supervisors to separate duties in consolidated offices]; 24303 [providing for filling of offices when board omits to consolidate duties as otherwise authorized]; 24202 and 24203 [when various supervisors are to be elected]; 25000 et seq. [organization of board of supervisors];[5] 26500 et seq. [powers and duties of district attorney]; 26600 [powers and duties of sheriff].
Paragraph (f): "The fixing and regulation by governing bodies, by ordinance, of the appointment and number of assistants, deputies, clerks, attaches, and other persons to be employed, and for the prescribing and regulating by such bodies of the powers, duties, qualifications, and compensation of such persons, the times at which, and terms for which they shall be appointed, and the manner of their appointment and removal."
Applicable general law: Government Code sections 24101 ["Every county or district officer, except a supervisor or judicial officer, may appoint as many deputies *282 as are necessary for the prompt and faithful discharge of the duties of his office."]; 24102 [procedures for appointment of deputies]; 24103 [requirement that deputies be citizens of the state]; 24105 [provision for filling vacancies in the various offices listed in section 24000].)
It should be apparent from the foregoing recitation that Measure V literally complied with Article XI, section 4, because the incorporation of general state law "provided for" the various procedural rules required by that constitutional provision. (Accord, Brown v. Francisco (1954) 123 Cal. App. 2d 413, 417, 266 P.2d 951 [holding that charter provision governing salaries of members of board of supervisors by incorporating general law by reference complied with constitutional requirement that charters provide for compensation of boards of supervisors].) We need only make one additional observation with regard to any contention that Measure V doesn't literally comply with Article XI, section 4: From relatively early days in the history of county charter jurisprudence, the idea of filling in a gap left by the terms of a county charter with the applicable provision of general law has been approved by our Supreme Court. (See Cline v. Lewis (1917) 175 Cal. 315, 318, 165 P. 915 [looking to general state law to ascertain when a particular ordinance governing the pay of the county sheriff was to take effect].)
The principle is nicely illustrated in Jones v. De Shields (1921) 187 Cal. 331, 202 P. 137. There, a county charter made no provision for a deputy county clerk to be paid. In analyzing whether the clerk could be paid, our Supreme Court examined in detail the language in what might be called the "inconsistency" clause in the predecessor to Article XI, section 4, paragraph (g), which was former Article XI, section 7 1/2. As worded, the clause provided that those laws which it is "competent" to put into a charter "and for which provision is made" in a charter, would "supersede all laws inconsistent with such charter relative to the matters provided in such charter." Parsing this language, the Supreme Court concluded that it meant that if a charter left something out, general law would fill the gap. "These provisions contemplate that there may be a case where a charter will fail to provide for matters which it properly should cover, and the intention is clear that in such a situation the general law, which in such a case has not been superseded by the charter, shall govern." (De Shields, supra, 187 Cal. at p. 336, 202 P. 137, citing Cline v. Lewis, supra, 175 Cal. at p. 316, 165 P. 915.)
While the inconsistency clause of former Article XI, section 7 ½, now found in Article XI, section 4, paragraph (g) has been cleaned up a little since De Shields was decided, the key ideas as divined by the De Shields court still remain. Paragraph (g) still operates as a kind of computer default program to fill in gaps which the authors of a charter might omit or forget. The ideas of a charter superseding laws which the charter is both competent to make "and for which provision is made" in the charter are still there. (Paragraph (g) reads in total: "Whenever any county has framed and adopted a charter, and the same shall have been approved by the Legislature as herein provided, the general laws adopted by the Legislature in pursuance of Section 1(b) of this article, shall, as to such county, be superseded by said charter as to matters for which, under this section it is competent to make provision in such charter, and for which provision is made therein, except as herein otherwise expressly provided.")
The upshot of De Shields and Cline is that general law can be used to fill in gaps *283 in what a charter doesn't expressly provide for. In fact, as plaintiffs recognize, county charters have been upheld a number of times when they didn't literally provide for some mechanism required by the constitution. (See Nicholl v. San Francisco (1927) 201 Cal. 470, 257 P. 501 [charter forgot to provide for retirement for probation officers, still upheld]; Hafliger v. County of Sacramento (1950) 97 Cal. App. 2d 850, 218 P.2d 993 [charter omitted mechanism for filing claims, still upheld]; McPherson v. Richards (1933) 134 Cal. App. 462, 25 P.2d 534 [charter omitted salary for assistant district attorney, still upheld].) If county charters will be upheld when they haven't literally provided for all the mechanisms and structures required by the state Constitution, they most certainly should be upheld when they do.
IV. Measure v. Substantively Complies
With the State Constitution
The trial court did not peg its decision on literal noncompliance, perhaps because, as we have just shown, the measure does literally comply with the state Constitution's requirements for charters. Rather, the trial judge concluded that the measure was unconstitutional primarily based on what he concluded was its substantive noncompliance with Article XI, section 4.
In a word, he thought that the measure just plain gave too much power to the Legislature in Sacramento to be called "home rule." Thus he wrote: "The problem with Measure V is that it fails to substantially comply with the requirements of Article XI Section 4 of the California Constitution. It does not provide for all the items required (beyond the election of supervisors and filling their vacancies) but instead makes the County subservient to the will of the State Legislature via the adoption of general law in all other aspects. This is not substantial compliance with Article XI Section 4." (Our emphasis.)
Throughout his minute order the trial judge specifically relied on only one decision, Reuter v. Board of Supervisors (1934) 220 Cal. 314, 30 P.2d 417 to support his conclusion. Referring to Reuter (or, more precisely, a passage from Dibb v. County of San Diego (1994) 8 Cal. 4th 1200, 1215, 36 Cal. Rptr. 2d 55, 884 P.2d 1003, which discussed Reuter), the judge wrote that "To paraphrase the Supreme Court: if the general laws controlled the Orange County Charter provisions of all the matters contained in Article XI Sections 4(b), (c), (d), (e) and (f) relating to the various subjects, powers and duties contained therein, then the thrust of the provision for establishment of powers and duties and functions through the county charter would be defeated. The Supreme Court said it best and it deserves repeating: `We did not think the framers of the amendment, nor *the people of the state who ratified it, contemplated any such absurd result.'" (Our emphasis.)
The passage concerning "absurd" results which the Supreme Court said "best" was from Reuter, supra, 220 Cal. at page 321, 30 P.2d 417. The trial judge would again return to the theme of "thrust" in yet another passage, again citing the Reuter case: "The court in Reuter v. Board of Supervisors (1934) 220 Cal. 314, 30 P.2d 417 expressly held that if general law controls the charter's provision of powers and duties relating to county officers, then the thrust of the provision for establishment of powers and duties through the county charter would be defeated. The court in Reuter stated that a re-enactment through the charter process of the powers and duties of county officials set forth in the general law would be a mere superfluous or idle act."
*284 Because reliance on the Reuter case is the foundation of the trial court's decision, we will now examine that decision in detail.[6] Given the incredible time pressure and hurry under which the case was brought to trial and within which the trial court had to issue its ruling, it is not surprising that the trial judge misread the Reuter case, but it is clear that misread it he did.
To reiterate, Reuter essentially is an exploration of the inconsistency or "state law controls" clause in former section 7 ½ of Article XI. Members of San Mateo's board of supervisors tried to divest themselves of their duties as road commissioners for their respective districts. It sounds strange as we write in the early 21st Century, but back in 1933 general state laws made each member of a county board of supervisors the ex officio road commissioner of his or her district; the supervisor's duties included taking charge of the highways in the district and employing "all men, teams, watering cars and all help necessary to do the work in the district when the same is not let by contract." (See Reuter, supra, 220 Cal. at p. 319, 30 P.2d 417, citing former Political Code sections 2641, 2645, and 4041.7.) The plaintiff in Reuter, who appears to have been a disgruntled taxpayer, wanted to keep it that way in the face of a new county ordinance giving responsibility for roads to the county engineer.
San Mateo was by then a charter county, and the Supreme Court noticed that its new ordinance delegating the duties otherwise held by each board member individually over roads to the new county engineer was "in direct conflict" with the general state law. (See Reuter, supra, 220 Cal. at p. 319, 30 P.2d 417.) The disgruntled taxpayer pointed to language in the inconsistency clause in former section 7 ½ of Article XI, which said that provisions of county charters "relating to the powers and duties of boards of supervisors and all other *285 county officers shall be subject to and controlled by general laws." (See Reuter, supra, 220 Cal. at p. 320, 30 P.2d 417, quoting former Article XI, section 7 ½)
But the same section 7 ½ also said that a county charter was "competent" to provide for "the powers and duties of boards of supervisors." (See Reuter, supra, 220 Cal. at p. 320, 30 P.2d 417.) Our high court was thus, in the Reuter case, forced to deal with a contradiction in the state Constitution itself and the question of what to do about it. After all, if the Constitution allowed a county charter to fix the powers and duties of the board of supervisors, but at the same time said that those powers and duties were "controlled" by general state law, then what happens when the charter fixes duties in "direct conflict" with the general law?
The Reuter court's solution was to first expose the absurdity of the internal contradiction, and then ignore the language which seemed to require that charter provisions "relating to the powers and duties of boards of supervisors and all other county officers shall be subject to and controlled by general laws," because not ignoring it would lead to "an absurd result." (See Reuter, supra, 220 Cal. at p. 321, 30 P.2d 417.) To simplify the analysis in what is a relatively difficult, rather redundant, and hard-to-follow passage in Reuter (consisting of one very long paragraph spanning pages 320 through 321 in the official reporter),[7] the court essentially said if general law were to control the powers and duties of boards of supervisors, then the other constitutional provision saying that county charters were competent to fix the powers and duties of boards of supervisors would only be calling for "idle," "useless," and "superfluous and idle" acts.
Well, said the court, no one contemplated that sort of absurdity when they framed and enacted the 1911 amendment to the state Constitution allowing for county charters. Accordingly, it was permissible for San Mateo to provide for fewer duties for the board of supervisors than general law did.
*286 The Reuter court then augmented its absurdity conclusion with a host of other reasons to uphold the charter, not strike it down. First, it buttressed its conclusion by reiterating the general rule against constructions that lead to absurd results. (Reuter, supra, 220 Cal. at p. 321, 30 P.2d 417.) Next it adduced the general rule that a proviso (specifically the general-law-controls language) which is "repugnant" to the "body of the act" will be ignored (id. at pp. 321-322, 30 P.2d 417), which the court was going to do (id. at p. 322, 30 P.2d 417).
Then came the historical section of the opinion, where the Reuter court further supported its conclusion with the rule of "contemporary construction." (Reuter, supra, 220 Cal. at p. 322, 30 P.2d 417.) The court then went on for several pages about the fact that San Bernardino, Los Angeles, Butte, Alameda, and Sacramento, all charter counties, had within the ensuing decade of the ratification of Article XI, section 7 ½ provided for powers and duties of various officers which were different from those prescribed by general law. (See Reuter, supra, 220 Cal. at pp. 322-324, 30 P.2d 417.) After that, the Reuter court only had to distinguish (and to some extent disapprove) More v. Board of Supervisors (1916) 31 Cal. App. 388, 160 P. 702, a tax limitation case, and add a paragraph to the effect that the basic purpose of Article XI, section 7 ½ was to create a mechanism for "local self-government or county home rule," its main objective being "to place the local government of each county in the hands of its citizens." (Reuter, supra, 220 Cal. at pp. 325-326, 30 P.2d 417.) The conclusion of the opinion was that when the state Constitution was "construed as a whole" and given a "reasonable interpretation," the fact that the San Mateo charter had transferred the duty of road commissioners from the board of supervisors to the county engineer was "a valid and constitutional charter enactment." (Id. at p. 327, 30 P.2d 417.)
The trial court thus erred in its reading of the Reuter opinion. All that language about "idle and superfluous" acts simply morphed into a broad proposition that general law is never allowed to fix the powers and duties of the board of supervisors.
Reuter, however, never said that. It never even purported to say that. The opinion cannot be read for the idea that county charters cannot adopt state law for their own use. The court merely said that if a county charter provided for a set of "powers and duties" for its board of supervisors in direct conflict with general law, the charter, not general law, controlled. And that idea is hardly a revelation. (See Dibb, supra, 8 Cal.4th at p. 1216, 36 Cal. Rptr. 2d 55, 884 P.2d 1003 ["The import of Reuter . . . is twofold. First, it establishes that powers and duties legitimately conferred by charter on county officers supersede general law."].)[8] The case is about an internal contradiction in the state Constitution, and in no way touches on whether a county has the right, if it so chooses, to adopt general state law in places where it sees fit.
Now let us address that latter point directly. There is absolutely nothing substantively inconsistent with Article XI, section 4 or even some platonic ideal of county home rule for that matter in deliberately choosing to adopt large swaths of general state law as the county's own. If that is the county's choice, then that is the county's choice. As amicus *287 California State Association of Counties aptly puts it, "Diversity in the manner of local government is the essence of county 'home rule.'"
It is the same here. If the voters of a county choose to adopt the general law for the governance of their county government except in one particular area, maybe it is because they like the general law. When the trial court wrote that the incorporation by reference made the county "subservient" to the Legislature and was contrary to the "thrust" of home rule, it was essentially confusing intuitive rhetorical associations (e.g., "if we have home rule, we must have our own unique way of doing things") with the actual substance of what the county voters were doing ("we will have home rule, and we like the Legislature's rules so much that we hereby adopt them for ourselves, except for this one item").
Finally, even though Orange County's charter did not specify its own unique way of "providing for" most of the requirements of Article XI, section 4, the very fact that Orange County became a charter county actually facilitates home rule. In adopting Measure V, Orange County embarked on a charter form of government. This was a significant decision, because, in the future, problems will be processed through the framework of charter government, with the added legal flexibility which that will entail. If, for example, the Legislature changes a law in the future that affects county governance, the matter can be put to a vote of Orange County voters who will be able to determine for themselves whether they like the change made by the Legislature. Without a charter which is the ultimate result plaintiffs urge upon the courts county voters would not be able to make the change, and would be stuck with whatever the Legislature had prescribed (unless, of course, they wanted to begin the process of adopting an entire charter anew).
V. The Impartial Analysis Passes Constitutional Muster
A. Preliminary Considerations
Next we turn to a series of alleged deficiencies in the county counsel's impartial analysis that was part of the ballot materials in the March 2002 election. The trial judge noted a number of things which the analysis didn't say, or which he thought were inaccurate or misleading, in bolstering his decision to strike down Measure V.
We begin by noting the relevant chronology: Measure V was on the March 2002 ballot, and anyone who thought that the impartial analysis provided with the ballot materials was somehow deficient might have made a pre-election effort to cure any deficiency and thereby prevent any alleged misleading of the voters before it happened. (Cf. Huntington Beach City Council v. Superior Court (2002) 94 Cal. App. 4th 1417, 115 Cal. Rptr. 2d 439 [writ petition arguing over statements in ballot materials processed through trial and appellate courts prior to election].) Rather, plaintiffs have made only a post-election attack on Measure V based on alleged deficiencies in the impartial analysis.
The structure for such an attack is outlined in Horwath v. City of East Palo Alto (1989) 212 Cal. App. 3d 766, 261 Cal. Rptr. 108, a case involving a post-election challenge to a city rent control measure based on what were in that case clear deficiencies in the impartial analysis prepared by the city attorney. We will explain more of what happened below, but for the moment the important thing is that the Horwath court began its analysis by concluding there was no statutory basis in the Elections Code to attack the outcome of an election based on deficiencies in the impartial *288 analysis. (See generally id. at pp. 773-775, 261 Cal. Rptr. 108.)
However, the Horwath court went on to consider the merits of the argument that the deficiency in the impartial analysis might have reached "constitutional dimensions," as the appellants claimed there (see id. at p. 773, 261 Cal. Rptr. 108), eventually concluding that it hadn't.
Relatively recently, the scope of Horwath was considered by our high court in Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal. 4th 165, 105 Cal. Rptr. 2d 214, 19 P.3d 567, which involved a challenge to a ballot measure delisting certain buildings from a list of historic properties. The Friends of Sierra Madre court read Horwath to differentiate matters pre- and post-election, and basically observed that if you want to attack an impartial analysis, the pre-election period is when you need to do it. We note the breadth of our high court's summary of Horwath: "More recently, in Horwath [citation] the court reached the same conclusion, holding that the requirement that there be an impartial analysis of a ballot measure applied only to preelection activities. A failure of the city attorney to comply with the requirement was not a basis for a postelection contest in which the petitioners contended that the process of enacting a ballot measure was so `infected by official misinformation' that the legislation should be invalidated." (Friends of Sierra Madre, supra, 25 Cal.4th at p. 193, 105 Cal. Rptr. 2d 214, 19 P.3d 567, emphasis added.)
Plaintiffs in this case contend that they are not making an election contest of the March 2002 opinion, and therefore the fact that deficiencies in an impartial analysis are not among the "exclusive" grounds to contest an election is irrelevant. They claim, as plaintiffs did in Horwath, that the alleged deficiencies in the impartial analysis here are a violation of constitutional guarantees of due process. As they put it in their brief, the right to vote is "fundamental in a democratic society" and the impartial analysis, "by conveying false and misleading information" abridged that right by preventing "voters from making an informed decision, especially given the paucity of other means by which to obtain accurate information in a low visibility election."
The argument requires some comment. First, plaintiffs' logic sweeps too broadly. Election losers frequently claim that their message "didn't get out" or that they were the victims of "false and misleading information." Simply as a matter of general principle, the idea that by "constitutionalizing" deficiencies in voter summaries you can undo an election is really quite antithetical to the democratic process.
Second, and more specific to the challenge here, it is not true that the inability to bring a post-election "contest" to a ballot measure is ipso facto irrelevant just because a party frames its challenge in the broad constitutional language of due process. Plaintiffs here have not considered the full implications of the Friends of Sierra Madre decision. That decision, interestingly enough, ultimately held that the measure being attacked was invalid because it was subject to the California Environmental Quality Act (CEQA, Pub. Resources Code, § 21000 et seq.), and in putting it on the ballot in the first place the city had not complied with the Act. (See Friends of Sierra Madre, supra, 25 Cal.4th at p. 171, 105 Cal. Rptr. 2d 214, 19 P.3d 567 ["We conclude that CEQA compliance is required when a project is proposed and placed on the ballot by a public agency."].) Thus the court would say, "That plaintiffs here sought to set aside *289 the election is not relevant." (Id. at p. 196, 105 Cal. Rptr. 2d 214, 19 P.3d 567.)
Even so, when the Friends of Sierra Madre court confronted the city's argument that a post-election challenge was not permitted by the Elections Code, the court agreed. (See Friends of Sierra Madre, supra, 25 Cal.4th at pp. 191-194, 105 Cal. Rptr. 2d 214, 19 P.3d 567.) The court explained for several pages that election contests are limited to "matters prescribed in the provisions enumerating the grounds of contest." (Id. at p. 194, 105 Cal. Rptr. 2d 214, 19 P.3d 567). The measure was struck down because the failure to comply with the CEQA statutes allowed a challenge "independent of the statutes governing election contests." (Id. at p. 192, 105 Cal. Rptr. 2d 214,19 P.3d 567.)
It follows from Friends of Sierra Madre, when read together with Horwath, that the need to mount any challenges to an impartial analysis before an election takes place and not after it cannot be so easily sidestepped as plaintiffs here would have us imagine. A litigant cannot simply intone the words "due process" and make the problem go away. Here, substantively, plaintiffs have really mounted only an election challenge, not a constitutional challenge (at least insofar as they attack the impartial analysis).
We need only add that in light of the fact that the Legislature has determined in the Election Code that an election cannot be undone on the basis of alleged deficiencies in an impartial analysis, trying to achieve the same result under the rubric of constitutional due process, as was unsuccessfully attempted in Horwath, requires a showing that the impartial analysis profoundly misled the electorate, not just that it didn't educate the electorate as to all the legal nuances of the measure. We perceive in Friends of Sierra Madre and Horwath, when read together, that the bar is very high indeed for a litigant to successfully mount a post-election challenge to a ballot measure using a due process rationale based on defects in a county counsel's impartial analysis. In Horwath, the litigants did not manage to clear that bar. Here, they barely even get off the ground.
B. Deputy Supervisors? Not in This Charter
The trial judge pointed to two specific items where the county counsel's impartial analysis in the ballot materials failed to explain to the voters that powers were gained or lost on becoming a charter county. One was the right of noncharter counties to have nonelected district attorneys, sheriffs and assessors. (See Gov.Code, § 24009.) The trial court noted that to do so would conflict with paragraph (c) of Article XI, section 4, which requires charters to "provide for" elected district attorneys, sheriffs, and assessors. The other power affected was that members of the board of supervisors might one day have the ability to delegate duties to a deputy, something that presently can't happen in a noncharter county (see Gov.Code, § 24101). The court specifically noted that whether there were "other powers . . . lost or gained by the County in this attempted shift from [a] general law county to a charter county was not established at trial," which we will take to mean that those two items were the best plaintiffs could do.[9]
*290 Let us take the easier of the two affected powers first, which is the one concerning the delegation of duties to a deputy supervisor. It may be, as an academic matter, that a charter could eventually provide for a board of supervisors each of whom could delegate duties to a deputy, but that is not what this charter provides. By incorporating state law which precludes such delegation, this charter simply kept the status quo. Thus it cannot reasonably be said that the voters were misled into voting for something of which they had no inkling as regards deputy supervisors. No deputy supervisors before Measure V, no deputy supervisors afterwards. And, if a county charter amendment is ever proposed to allow the supervisors to delegate duties to deputies, then, because that can only be done by a charter amendment,[10] the county counsel's statement that "[f]uture changes to the charter must be submitted to the voters for approval" was spot on accurate in that regard. So there was certainly no misleading as to the delegation right.
C. Non-Elected District Attorneys? Doesn't Affect the Core Purpose of the Legislation
The clash between the possibility of actually having a non-elected district attorney, sheriff and assessor which noncharter counties can have, at least in theory and the requirement that charters must provide for elected district attorneys, sheriffs and assessors, is somewhat more problematic. It arises because of the fact that paragraph (c) of Article XI, section 4 places a substantive restriction on county government beyond mere political structure. Paragraph (c) thus requires provision for not only a district attorney but an elected district attorney. (Ditto sheriffs and assessors.) A natural reading of the paragraph is that a county does not have the option of having a non-elected district attorney (not that anyone really wants one anyway a point which we will soon address).
On the other hand, consider the impact of paragraph (h) of Article XI, section 4. The one-sentence paragraph states: "Charter counties shall have all the powers that are provided by this Constitution or by statute for counties." A natural reading of that paragraph is that a county should not lose any powers "options" if you please on becoming a charter county that it otherwise had by statute prior to becoming a charter county.
The question before us thus becomes whether the "failure" of the county counsel in his impartial analysis to spot the interesting legal possibility that by going to charter status county voters would lose the opportunity ever to have a non-elected district attorney, sheriff and assessor reaches a level where constitutional due process itself demands invalidation of the election.
The requirement that county counsel prepare "an impartial analysis of the measure" is found in Elections Code section 9160, subdivision (b). The first paragraph of that statute gives the governing language (the second and third deal with what happens when the entire text of the ballot measure is not printed on the ballot). It says: "The county counsel or district attorney shall prepare an impartial analysis of the measure showing the effect of the *291 measure on the existing law and the operation of the measure. The analysis should be printed preceding the arguments for and against the measure, [¶] The analysis shall not exceed 500 words in length." (Emphasis added.)
It is obvious from the 500-word limitation in the statute that the county counsel is not required to write indeed should not write a law review article meditating on every last nuance and wrinkle posed by a ballot measure. Impartial analyses were not meant to be environmental impact reports. The 500-word limit poses the literary challenge of summarizing what might be a very complex measure into a report about the size of a small newspaper column. (Neither this court nor the trial court nor the attorneys' briefs filed in this court have attempted to describe the ballot measure, complete with all the various ramifications that bothered the trial court judge, in less than 500 words!) Thus it is no surprise that when the Horwath court confronted a constitutional attack on an impartial analysis, the court articulated a liberal rule. An impartial analysis will pass muster if it describes the measure in "general terms" giving its "key components." (See Horwath v. City of East Palo Alto, supra, 212 Cal.App.3d at p. 779, 261 Cal. Rptr. 108.) Elsewhere other panels of the Court of Appeal have declared that all reasonable doubt should be resolved in favor of upholding the analysis. (See Brennan v. Board of Supervisors (1981) 125 Cal. App. 3d 87, 96, 177 Cal. Rptr. 677 [if "reasonable minds may differ" on the "sufficiency" of a ballot summary, "it should be held sufficient"].)
Now to the actual facts in Horwath. There, the city attorney did a fairly bad job of describing a ballot measure so much so that it really misled the voters in a significant way. On top of that the whole text of the ballot measure wasn't even on the ballot.
In Horwath, a city council voted to put a rent control ordinance before the voters. Right off the bat there was a mistake as to the nature of the rent control ordinance. The city council wanted to put a rent control ordinance which had a 1983 base year, but which allowed for inflation increases of 9 percent in 1984 and 8 percent in 1985. But the ordinance that was voted on by the voters set the base year in 1985, which in practical effect meant there would be an 8 percent rollback. (Horwath, supra, 212 Cal.App.3d at p. 770, 261 Cal. Rptr. 108.) To make matters worse, the voter information pamphlet didn't contain the actual text of the measure voters had to write in and request a copy if they wanted to read it, and of course the rollback aspect of the measure wasn't obvious from what was in the information pamphlet. And neither the summary of the measure nor the city attorney's impartial analysis noted the rollback effect of the measure the measure wasn't just freezing rents, it was forcing landlords to lower them. (See id. at pp. 770-771, 261 Cal. Rptr. 108.) The measure won.
And yet, despite this comedy of errors, the measure survived scrutiny by the Horwath court, even though the landlord-plaintiffs argued that the "enacting process was so infected by official misinformation about a vital element" of the legislation that it had to be invalidated on due process grounds. (See Horwath, supra, 212 Cal.App.3d at p. 773, 261 Cal. Rptr. 108.) And on one point the landlords had a good argument: The court was compelled to conclude that the impartial analysis was so bad that there had been an actual violation of the statute requiring an impartial analysis (there, Elections Code section 5011, since this was a city, not a county, see id. at p. 778, 261 Cal. Rptr. 108 *292 ["the analysis itself did not pass section 5011 muster"]).
However, even if there had been a violation the new measure was valid. There had been some pre-election publicity about the effect of the rollback and the city had made the full text available, free of charge, "before the election" so a voter could have spotted the implications of the base rent date himself (see id. at pp. 778-779, 261 Cal. Rptr. 108). The bottom line was that there was no "material" irregularity affecting the election process because the impartial analysis "disclosed the purpose of Measure A and described in general terms its key components, except for the definition of lawful base rent." (Id. at p. 779, 261 Cal. Rptr. 108.) Summing up, the court concluded that the rollback omission fell "somewhere in between a minimal defect and one going to the core character and purpose of the proposed legislation," yet, "in light of what was disclosed, coupled with the extent of pre-election publicity on the very topic of the rollback, as well as the availability of the full text of the proposed ordinance," the city's conduct was not "so egregious as to raise a presumption of unfairness." (Ibid.)
Let us compare the facts in Horwath with those before us here. In Horwath, the defect in the impartial analysis was palpable. The affected landlords were faced with a rollback that hadn't been officially brought to the voters' attention. Their pocketbooks would be affected and affected immediately by the measure itself. Here, by contrast, the loss of the possibility of having non-elected district attorneys, sheriffs and assessors is almost ridiculously academic. Nobody, including these plaintiffs, burns with the desire to make Orange County's elected district attorney, sheriff and assessor into appointed positions.[11]
In Horwath, the defect in the impartial analysis actually misled voters as to the nature of the legislation. Ask any renter or landlord, and they will tell you there is a difference between freezing rent and rolling it back by 8 percent. That defect was severe enough to be at least a "minimal" defect in the Horwath court's eyes, because it could not be gainsaid that the analysis missed a major aspect (even if not quite the "core character and purpose") of the legislation. Here, it really cannot be said that the county counsel missed anything. Paragraph (h) of Article XI, section 4 provides that charter counties shall have "all the powers that are provided by this Constitution or by statute for counties." If, at some future time, there is some great movement in Orange County to have a non-elected district attorney, sheriff or assessor, then maybe the potential conflict between paragraph (c) of Article XI, section 4, and paragraph (h) of Article XI, section 4, can be litigated. That really would be the closest thing to a re-run of the Reuter case, but for the moment let us say, as a court, it isn't at all clear how such a future hypothetical case would turn out. It might even be (and such a result would be consistent with Reuter) that a court would declare that, even though Orange was a charter county, it still could have, pursuant to paragraph (h), a non-elected *293 district attorney just like noncharter counties can have. Thus in contrast to Horwath, the impartial analysis here wasn't technically inaccurate.
In Horwath, as we have previously indicated, the complete text of the measure wasn't even on the ballot. Yet the court noted that any voter could obtain a copy. Here (perhaps owing to its remarkable brevity) the complete text was on the ballot. A hypothetical legally sophisticated voter thus had less "hassle" in figuring out the true import of Measure V here than of Measure A in Horwath.
Most importantly, in Horwath, the court was not willing to go so far as to say an 8 percent rollback went to the "core character and purpose of the proposed legislation." (Horwath, supra, 212 Cal.App.3d at p. 779, 261 Cal. Rptr. 108.) Here, it is almost laughable to suggest that the hypothetical loss of the county's ability to turn certain elected positions into non-elected positions was even in the same continent as the legislation's core purpose which was unabashedly to allow the voters, and not the Governor, to fill vacancies. Plaintiffs cannot maintain with a straight face that there is any political movement anywhere in this state that wants to take elected district attorney positions and turn them into non-elected positions, and there certainly isn't any evidence in the record that the loss of that possibility would have made any difference to the electorate.
D. A Charter Pegged to State Law?
That Was Pretty Obvious
The final deficiency identified by the trial judge in the impartial analysis was more general. He concluded that the impartial analysis failed to tell the voters that "every time the legislature changes the general law (except for the number of supervisors, their 4 year term of office and the filling of vacancies on the board of supervisors) that the charter would be changed without Orange County voter approval."
There are several answers to this theory. First, we cannot agree that this alleged failure even reached the level of a "minimal defect" in the impartial analysis as required by Elections Code section 9160. Assuming for the moment that the trial judge's characterization was correct (i.e., that the charter automatically changes or "floats" with state law), the average voter of even a rudimentary education can figure out that if the charter adopts general laws as set forth by the Legislature and that was plainly in the text of the charter those laws are going to change. (Cf. Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal. 3d 208, 243-244, 149 Cal. Rptr. 239, 583 P.2d 1281 [in construing Proposition 13, court assumed that the voters "`voted intelligently'" and "`duly considered'" the amendment "`to their organic law'"]; People v. Superior Court (Gevorgyan) (2001) 91 Cal. App. 4th 602, 610, 110 Cal. Rptr. 2d 668 ["The drafters of an initiative and the voters who enacted it are presumed to have been aware of the existing statutory law and its judicial construction."].) That's what Legislatures do. They pass new legislation. They change old legislation. So when the impartial analysis plainly told the voters that the charter would not affect the general laws of the state (other than the way vacancies in the board of supervisors were filled), it was accurate.
Put another way, plaintiffs' argument fails because it is built on sterile semantics: One can just as easily say, with total consistency with the county counsel's analysis, that by enacting a charter which incorporated general law, the voters decided to enact all the changes the Legislature *294 might make in the future (except, of course, in relation to the filling of vacancies). Moreover, there are the implications of the De Shields and Cline cases which we have already discussed. The Supreme Court thought it insignificant that general law with its possibility of future change be inserted where the county charter had omitted some provision which the constitution had otherwise required.
Further, as we have mentioned above, by enacting the charter, the voters of the county were indeed acquiring the power to change what the Legislature did if it changed county governance statutes in the future. In that situation, county voters could simply amend their charter to provide for a result different from that determined by the Legislature, and so would not be without recourse if there were some point of the general law (which, of course, we must add, it is "competent" for a county charter to deviate from) that they disliked. Thus, when the impartial analysis said that "[f]uture changes to the charter must be submitted to the voters for approval," it was substantively accurate: The voters would take pot luck with the general law, but if they wanted to change that, that change would be submitted to them for approval.
And, even if we assume that the failure of the 500-word impartial analysis to explore in detail the interesting logical ramifications of the charter's structure was a defect, it was clearly not one that went to the "core character and purpose of the proposed legislation." (Cf. Amador Valley, supra, 22 Cal.3d at p. 243, 149 Cal. Rptr. 239, 583 P.2d 1281 [though title and summary of Proposition 13 prepared by Attorney General were "technically imprecise," court doubted "that any significant number of petition signers or voters were misled thereby"].) In fact, on that point, this charter amendment was probably one of the most honestly presented and described that has ever been adopted by the voters of any county. Because of the focus on one specific deviation from the general law, the voters could be reasonably certain that (with the exception, of course, of the very fact of becoming a charter county in the first place) the status quo would be maintained including the fact that the Legislature might make a new law affecting county government both before and after the change except for the deviation.[12] That is a far "cleaner" product than is presented to the voters when they are given a custom-made charter to vote on, in which any number of unexpected changes requiring more than 500 words to explain are presented to them.[13]
VI. There Was No Need for A Fiscal Impact Statement
A final point urged by plaintiffs to invalidate the charter, although not relied on by the trial judge, is that there should have been a fiscal impact statement as well as an impartial analysis. (There is a special irony here: If plaintiffs succeeded in overturning the measure on its failure to include *295 a fiscal impact statement, their very litigation would have the effect of largely wasting the money which they now argue that the voters should have been told that the election would cost!)
In contrast to the other issues raised by plaintiffs, this one need not detain us long. First, if, as explained above under Friends of Sierra Madre and Horwath, deficiencies in a required impartial impact analysis cannot be the basis of a post-election attempt to contest the election, a fortiori the absence of an optional fiscal impact analysis cannot be the basis for such a post-election challenge. Again, to reiterate: If your complaint is with the ballot materials that go to the voters, challenge those, when you get the chance, don't try to overturn the election results by picking them apart afterwards.
And second, the presence of a fiscal impact statement is discretionary. Like the impartial analysis, provision for it is found in Elections Code section 9160, specifically subdivision (c). However, in contrast to the impartial analysis, it is a "may," not a "shall." After a series of "shalls" in subdivisions (a) ["shall transmit a copy to the county auditor"] and (b) ["shall prepare an impartial analysis," "the analysis shall be printed," "there shall be printed"], subdivision (c)'s "may" sticks out: "Not later than 88 days prior to an election that includes a county ballot measure, the board of supervisors may direct the county auditor to review the measure and determine whether the substance thereof, if adopted, would affect the revenues or expenditures of the county." And if the board does that, the auditor "shall" prepare the fiscal impact statement.
Given that the use of the word "may" denotes discretionary authority (e.g., Bohemian Club v. Fair Employment & Housing Com. (1986) 187 Cal. App. 3d 1, 23, 231 Cal. Rptr. 769; Fair v. Hernandez (1981) 116 Cal. App. 3d 868, 876, 172 Cal. Rptr. 379), it is relatively clear here that the board of supervisors' decision not to refer Measure V out for a fiscal impact statement was within the realm of reason. For one thing, it is pretty obvious to anybody that if a measure requires an election, it is going to add the cost of the election. Anybody can figure that out, even if he or she has no idea of how much putting on a special election might cost in a given county. Moreover, a fiscal impact statement would presumably also compare the cost of an election with the cost of the appointment process used by the Governor, including the cost of expensive background checks. Beyond the cost of elections, however, it is hard to see the measure having much fiscal impact; it does not contemplate any necessarily continuing expenditures, or hiring anybody who would otherwise not be on the county's payroll (though it might make a difference as to who is on that payroll in the office of supervisor).
VII. Disposition
The judgment of the trial court holding that Measure V is invalid is reversed. The case is remanded with directions to enter judgment declaring that the measure is valid.
Because of the unique complexity of the issues, in the interests of justice each side shall bear its own costs on appeal.
WE CONCUR: RYLAARSDAM and MOORE, JJ.
NOTES
[1] Here is the full text of the charter, taken straight from the ballot materials, though we have scrunched it up by combining paragraphs:
"ARTICLE I BOARD OF SUPERVISORS [1¶] 101. Governing Body [¶] 102. Terms of Office [¶] 103. Filling of Vacancies [¶] ARTICLE II GENERAL [¶] 201. Initiative and Referenda [¶] 202. General Law Governs [¶] 203. County Ordinances Enacted by the Voters Remain in Effect [¶] PREAMBLE [¶] We, the citizens of Orange County, with a desire for self-determination in selecting our county elected officials and to initiate the process to govern our county by charter government, do hereby adopt this charter. [¶] ARTICLE I BOARD OF SUPERVISORS [¶] 101. Governing Body. [¶] The governing body of the county is a Board of Supervisors of five (5) members elected by and from designated supervisorial districts. [¶] 102. Terms of Office. [¶] The term of the office of supervisor is four (4) years. [¶] 103. Filling of Vacancies. [¶] Notwithstanding any other provision of law, whenever a vacancy occurs in the office of supervisor, the vacancy shall be filled as follows: [¶] A. If the vacancy occurs in the first 1095 days of the term of office, the vacancy shall be filled by a vote of the electors of that district at a special election to be called by the Board of Supervisors not less than 56 days nor more than 70 days after the vacancy occurs. If the vacancy occurs within 180 days of a regularly scheduled election held throughout the supervisorial district, the election to fill the vacancy may be consolidated with that regularly scheduled election. [¶] The person receiving the highest number of votes in that election shall fill the vacancy. [¶] B. If the vacancy occurs within the final year of the term, the vacancy shall be filled by the person receiving the highest number of votes for supervisor in that district in the March primary election that year. If that person for any reason does not assume the office for the remainder of the term, the Board of Supervisors is hereby authorized to appoint a person to fill the vacancy. If the Board of Supervisors does not make such an appointment within 30 days following the certification of the March primary election results or following the failure of that person to assume the office, whichever comes later, the Board of Supervisors shall call a special election to be held not less than 56 nor more than 70 days thereafter to fill the vacancy. The person receiving the highest number of votes in that special election shall fill the vacancy. [¶] ARTICLE II GENERAL [¶] 201. Initiative and Referenda. [¶] This charter does not abridge or modify the rights of citizens to propose initiatives and referenda (including amendments to this charter) as provided for in the general laws of the State of California. [¶] 202. General Law Governs. [¶] Except as expressly set forth in this charter, the general law set forth in the Constitution of the State of California and the laws of the State of California shall govern the operations of the County of Orange. [¶] 203. County Ordinances Enacted by the Voters Remain in Effect. [¶] Ordinances of the County of Orange adopted by the voters prior to the enactment of this charter shall remain in full force and effect any may only be modified or repealed by a vote of the people."
[2] All references in this opinion to Article XI, or to "section 4" or "section 7 ½" or to a given paragraph are to the California State Constitution.
[3] "Quo warranto" comes from an ancient writ used in Great Britain where the king (especially Edward I) tested the validity of claims or franchises claimed by subjects from the Crown. Thus it is tailor-made for legal inquiries as to the validity of a county charter. For more detail on quo warranto proceedings, see International Assn. of Fire Fighters v. City of Oakland (1985) 174 Cal. App. 3d 687, 220 Cal. Rptr. 256. Today, most states, including California, require a plaintiff to obtain permission from the state attorney general to seek the writ. (E.g., Code Civ. Proc., § 803.)
[4] We do not necessarily determine that the statutes which we adduce in support of the idea that each of the requirements of Article XI, section 4 has been met by the incorporation of state law are exhaustive. But there are enough statutes as to each item to demonstrate that the various provisions which Article XI, section 4 says must be included in the charter have indeed been included.
[5] Government Code section 25060, providing for the Governor to fill vacancies, is obviously not part of what was incorporated in Measure V.
[6] At oral argument counsel for plaintiffs was challenged to identify plaintiffs' best case supporting the proposition that Orange County's charter did not comply with the requirements of Article XI, section 4. Surprisingly, he did not name Reuter, the case which clearly had most influenced the trial judge, but People v. County of Santa Clara (1951) 37 Cal. 2d 335, 231 P.2d 826 (a case which was not mentioned in the respondents' brief, but only in the respondents' consolidated response to the various amicus briefs filed in support of the county's position). County of Santa Clara (which we will refer to as the "Levin" case), however, is completely off point. In Levin, something that resembled a proposed charter for Santa Clara County was published in the San Jose Mercury Herald before the election. Former Article XI, section 7 ½ required that a charter be "published for at least 10 times in a daily newspaper of general circulation, a total of ten times." However, in Levin, the correct text of the charter was published only five times; the other five times it was "garbled" by printer's errors, so much so that the high court would later describe those versions as "unintelligible." (See Levin, supra, 37 Cal.2d at p. 341, 231 P.2d 826.) The first part of the Levin opinion showed that the legislative resolution approving the charter was not conclusive. (See id. at pp. 337-339, 231 P.2d 826.) The second part described the printers' errors (essentially mixing up blocks of text and putting them where they weren't supposed to be) to show that the publication on the five incorrect days conveyed "an erroneous impression." (Id. at pp. 340-341, 231 P.2d 826.) After that, the ending of the opinion was extraordinarily short: "While substantial compliance has been held to suffice under some circumstances [citations] such compliance, as above indicated, is not present in this case." (Id. at pp. 341-342, 231 P.2d 826.) Since we determine that Orange County's charter does "substantially" comply with Article XI, section 4, Levin is of only academic interest. Levin merely stands for the proposition that if the Constitution requires publication of a charter ten times before an election, publication of a correct version five times and a garbled version five times is not substantial compliance with that requirement.
[7] It is not an example of our high court's clearest prose. Just so readers can see for themselves whether our translation is true to the original, we reproduce the subject paragraph here. The court had just quoted language from old section 7 ½ which said charters were competent to provide "[f]or the powers and duties of boards of supervisors . . . ." and then launched into this discussion: "From a mere reading of this provision of the constitutional section it is apparent that the proviso contained therein is inconsistent with and repugnant to the general provision of that portion of the section of which it is a part. The general provision of the section provides that it shall be competent in all charters framed under said section of the Constitution, and `the same shall provide' for the powers and duties of boards of supervisors and of all county officers. At the time of the adoption of said constitutional amendment the general laws of the state, with meticulous care, had fixed and defined the powers and duties of the board of supervisors and of each and every county officer in the state, except those acting under a city and county government, with which we are not here concerned. Therefore, if the powers and duties of boards of supervisors and county officers, as fixed by the charter, are `subject to and controlled by general laws', then any attempt to provide for such powers and duties in the charter would be an idle act and a useless expenditure of effort. If these powers and duties as fixed by the charter conflicted in any way with those fixed by general laws then, if the proviso is to control, to the extent that they are inconsistent with those fixed by the general laws, they would be ineffective and void. If they did not so conflict with those fixed by the general laws, as we have said before, the charter provisions fixing said powers and duties, though valid, would simply amount to a reenactment of that which was already the law a mere superfluous or idle act. We do not think the framers of the amendment, nor the people of the state who ratified it, contemplated any such absurd result." (Reuter, supra 220 Cal. at pp. 320-321, 30 P.2d 417.)
[8] Later, the Dibb court would also note that Reuter "sheds some light" on the power that can be conferred on a county official under paragraph (e) of section 4, namely it can include the power to bind the county by contract. (See Dibb, supra, 8 Cal.4th at p. 1216, 36 Cal. Rptr. 2d 55, 884 P.2d 1003.)
[9] While the trial court was initially concerned with whether, in passing Measure V, Orange County had inadvertently repealed the county's term limits ordinance, he did not mention any such effect in his statement of decision. We do not address the issue now, except to note that both charter and noncharter counties are allowed, under general state law, to adopt term limits statutes. (See Gov.Code, § 25000, subd. (b)("the board of supervisors of any general law or charter county may adopt or the residents of the county may propose, by initiative, a proposal to limit or repeal a limit on the number of terms a member of the board of supervisors may serve. . . .").)
[10] We will explore in more detail the problem of the Legislature changing the general law in part V.D. of this opinion.
[11] There is only one difference between this case and Horwath which doesn't demonstrate how much less likely to mislead the voters the impartial analysis in this case is. In Horwath there was some preelection publicity (albeit not part of the official ballot materials) about the rollback. (See Horwath, supra, 212 Cal. App.3d at p. 778, 261 Cal. Rptr. 108 ["the responsibility for voter education is not the government's alone"].) Here, we accept the trial court's finding that Measure V was the product of a so-called low visibility election. However, to reiterate, the omission of the possibility of elected offices becoming appointed is so academic that it is clearly de minimis.
[12] With the exception of the loss of the power to make elected positions non-elected, which is why we belabored that loss in the previous section.
[13] There is no need to explore in this opinion now whether, in the future, the charter should be construed as necessarily adopting general law as it stood in March 2002 or as changed by a future Legislature. (Cf. Palermo v. Stockton Theatres, Inc. (1948) 32 Cal. 2d 53, 59-60, 195 P.2d 1) (duty of courts to construe a statute so as to save its constitutionality if it is susceptible of two constructions required court to interpret statute as incorporating the "then-existing" provisions of a certain treaty incorporated by reference into the statute when it was passed even though the treaty had been abrogated in the interim). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261064/ | 59 Pa. Commw. 11 (1981)
Elvin Vernon and Elvin Vernon, Inc., Appellants
v.
Borough of Darby et al., Appellees.
No. 321 C.D. 1980.
Commonwealth Court of Pennsylvania.
Argued March 5, 1981.
April 24, 1981.
Argued March 5, 1981, before Judges BLATT, WILLIAMS, JR. and CRAIG, sitting as a panel of three.
*12 Howard N. Stark, with him William G. Sherr, for appellants.
Alfred J. Mattei, with him Peter J. Nolan, for appellees.
OPINION BY JUDGE CRAIG, April 24, 1981:
Elvin Vernon (together with his corporation) appeals from an order of the Court of Common Pleas of Delaware County, which denied his request for a preliminary injunction to prevent the Borough of Darby, its council members, mayor, code enforcement officer and a police officer from interfering with appellant's business operations.
Appellant's business is the sale of sexually oriented magazines and products, and the operation of ten movie booths in which films of sexual activities are shown.
In December, 1979, under the zoning ordinance, appellant applied for and received a retail sales occupancy permit for a shop on Main Street in Darby; the area was zoned non-residential.[1] On January 8, 1980, he applied for an amusement device license, which was issued by the code enforcement officer for "Coin *13 operated Amusement Pinball Machines and Kiddie Rides ONLY."
Four days later, the mayor entered the premises, observed the items offered for sale, and viewed one of the movies. Officer Reynolds, who was outside the shop at the time, issued a citation for violation of borough ordinance 119-1,[2] which requires a license for "moving picture exhibitions."
On January 14, the code enforcement officer served a violation notice on appellant which stated: "[y]ou are in violation of your license to operate and you must close all operations at once and remain close until proper license are obtained (sic)." Appellant appealed from that notice to the zoning hearing board, claiming that all further official action was stayed under the Municipalities Planning Code Section 916.[3]
However, the following day, the borough council adopted a resolution to "immediately close the adult book store that is in violation of the Darby Borough Code." The mayor proceeded to appellant's store, asked those present to leave, and chained and padlocked the door.
The code enforcement officer sent appellant a letter revoking the amusement license, citing that appellant: knowingly gave false and misleading statements; *14 did not apply for a theater or motion picture amusement license; and did not comply with the specific terms of the amusement license.
Following the hearing on appellant's request for a preliminary injunction, the judge denied relief on the basis of appellant's unclean hands; he ordered that appellant have "leave to enter the premises to remove any items they wish, but they shall not operate or return to operate the premises." The judge stated on the record: "[W]e return the property to the status quo that it was before the applications were made."
Appellant claims that the borough officials, in forcibly obstructing the operation of business, exceeded their power and violated appellant's due process rights, citing Berman v. Philadelphia, 425 Pa. 13, 228 A.2d 189 (1967).
In Berman, the Supreme Court reviewed a lower court denial of a preliminary injunction to prevent the forcible obstruction of a trailer used as a bail bondsman's office. The Philadelphia Department of Licenses had revoked the trailer's use permit because of an alleged zoning violation. City employees then cut the telephone and electric wires leading to the trailer, locked the trailer door and stationed a policeman in front of it to refuse access to the bail bond personnel.
The court concluded that, by allowing the police to circumvent available legal machinery in forcibly evicting the appellant, the lower court had abused its discretion in refusing to issue the preliminary injunction, stating:
It cannot be gainsaid that appellants had a right to insist that the police not seize their property without due process of law. . . . [B]asic respect for government is eroded when some of its officers arbitrarily ignore established *15 procedures of law and rely upon the force of their power.
425 Pa. at 17, 228 A.2d at 191.
Characterizing the seizure as a "continuing one," the court ordered the police department restrained from interfering with the rights of the bail bond firm "until such time as the legal status of appellants' position is determined in a manner consistent with an orderly administration of justice." Berman, supra at 19, 228 A.2d at 192.
We believe that Berman, supra, controls this case. The Borough cannot cite any law in support of its unilateral barricade of appellant's premises.
Appellants' movie-booth business activity falls under the terms of both the amusement permit ordinance and moving picture license ordinance.[4] Some kind of borough action was therefore merited by appellant's violation of both ordinances. However, the borough had less drastic legally prescribed alternatives available to rectify the situation. Appellant may be subject to fines and an injunction by the borough for the violations, but not to physical obstruction accomplished without the benefit of legal process. Berman, supra.
The order below, instructing that appellant "shall not operate the premises or return to operate the premises", if such prohibition referred to appellant's operation of the movie booths, was not inconsistent with our view that appellant violated the terms of the amusement permit and the moving picture licensing ordinance.[5]
*16 However, we should modify the order so that there can be no question concerning the illegality of the summary obstructive action taken by the borough.
Accordingly, the order below is thus modified; otherwise it is affirmed as consistent with this opinion.
ORDER
AND NOW, April 24, 1981, the order of the Court of Common Pleas of Delaware County, No. 80-960, dated February 5, 1980, is modified to provide that (1) the borough, its officers and agents shall not obstruct access to the premises by physical locks or barriers, or otherwise, and that (2) plaintiffs shall not use the premises for the operation of motion picture booths, unless and until plaintiff obtains lawful borough licenses for such devices under the borough's amusement device ordinance and under Ordinance 119-1.
Judge WILKINSON, JR. did not participate in the decision in this case.
NOTES
[1] Although both parties appear to view the dispute as a zoning question, at least in part, the record does not disclose a zoning violation. Appellant unquestionably misrepresented the nature of his business as "dry goods" when he applied for the use and occupancy license; however, the permitted use designation "Sales Retail" obviously encompasses various retail businesses.
[2] The ordinance states:
No person, firm, or corporation shall, within the Borough of Darby, conduct any theater, public hall or place for theatrical or moving picture exhibitions or other amusements at which an admission or other fee is charged without first procuring a license therefore (sic) and paying the license fee hereinafter provided; provided, however, that this chapter shall not apply to theatrical or moving picture exhibitions or other amusements conducted by religious or fraternal organizations within the Borough, and provided further that no license shall, under any circumstances, permit in any licensed premises any lewd, immoral or improper exhibition, entertainment or other amusement.
[3] Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10916.
[4] The literal terms of the ordinance would appear to encompass the operation of movie booths. See note 2, supra.
[5] The lower court's prohibition of any use contrary to the terms of the amusement permit in effect denied appellant's request for a supersedeas to allow operation pending adjudication of municipal appeals under the ordinances. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261067/ | 238 P.3d 149 (2010)
FRED NACKARD LAND COMPANY; LNN Enterprises, Inc.; Richard Henderson; West Village Estates, Inc., and all others similarly situated, Plaintiffs/Appellants,
v.
CITY OF FLAGSTAFF, a municipal corporation, Defendant/Appellee.
No. 1 CA-CV 08-0533.
Court of Appeals of Arizona, Division 1, Department D.
September 2, 2010.
*151 Aspey, Watkins & Diesel, P.L.L.C. By Harold L. Watkins, Donald H. Bayles, Jr., Carson T.H. Emmons, Flagstaff, Attorneys for Plaintiffs/Appellants.
*152 Graif Barrett & Matura, P.C. By Erin E. Byrnes, Phoenix, Co-Counsel for Defendant/Appellee.
Jones, Skelton & Hochuli, P.L.C. By Gordon Lewis, Phoenix, Co-Counsel for Defendant/Appellee.
OPINION
SWANN, Judge.
¶ 1 The issue in this case is whether the ordinances that establish a charge-and-credit system to fund the City of Flagstaff's stormwater management utility are constitutional. Applying the rational basis test to Plaintiffs' state law equal protection challenge, we hold that the ordinances are facially valid. We conclude, however, that Plaintiffs have presented sufficient evidence to preclude summary judgment on their claim that the ordinances have been applied in an unconstitutionally discriminatory manner. We further hold that the right to equal charges guaranteed by Ariz. Const. Art. 15, § 12 does not apply, explicitly or implicitly, to fees charged by municipal corporations. Finally, because Arizona law contains no analogue to 42 U.S.C. § 1983, Plaintiffs have not established on this record that they are entitled to recover damages on their state constitutional challenge to the application of the ordinances.
FACTS AND PROCEDURAL HISTORY
¶ 2 In 2001, the City enacted ordinances adopting floodplain management regulations and a stormwater management design manual. The design manual required the installation of stormwater detention structures for new subdivisions, commercial and industrial developments, re-developments of non-conforming sites, and other developments over a quarter-acre in size. Another ordinance established a City-owned and -operated stormwater management utility, which was to construct and manage stormwater drainage systems. The utility, according to the ordinance, would be funded by service and system development fees, which could be off-set by credits to property owners who took measures to reduce the burden on the utility. In March 2003, the City enacted Ordinance 2003-02, which established a charge schedule.
¶ 3 In October 2003, Plaintiffs submitted a notice of claim to the City as putative members of a class pursuant to A.R.S. § 12-821.01. Plaintiffs asserted that, pursuant to the design manual, they had installed detention structures on their properties, but their fees had not been reduced by credits. At that time, though Ordinance 2003-02 provided that credits were available for detention structures, a credit manual had not yet been adopted. Plaintiffs also alleged that while they had been subject to charges, no charges had been imposed on owners of undeveloped property. They claimed that the City had violated their equal protection and due process rights under both the United States and Arizona Constitutions, and had also violated Ariz. Const. Art. 15, § 12. Plaintiffs further claimed that the charges constituted an unlawful tax, and offered to settle their claim for $100,000,000.
¶ 4 Plaintiffs filed their complaint in superior court in June 2004. The parties stipulated to class certification, and the court certified a class comprised of "all owners of real property in the City of Flagstaff who were required (or whose predecessor's [sic] in interest were required) by the City of Flagstaff to construct stormwater detention systems and are now being charged a stormwater runoff fee."
¶ 5 In January 2007, Plaintiffs filed an amended complaint, adding allegations that Ordinances 2004-22 and 2006-17 violated the equal protection guarantee of the Arizona Constitution.[1] Ordinance 2004-22 had adopted a retroactively effective interim credit manual for the utility, and Ordinance 2006-17 had revised the manual in response to a fee increase implemented by another ordinance. Plaintiffs sought a declaration that Ordinances 2003-02, 2004-22, and 2006-17 were unconstitutional. They also demanded *153 compensatory damages based solely on claimed violations of the Arizona Constitution.[2]
¶ 6 Both parties moved for summary judgment. After oral argument, the court granted the City's motion and denied Plaintiffs' motion. The court concluded that Plaintiffs' notice of claim was deficient under A.R.S. § 12-821.01, and that the challenged ordinances were constitutional. The court explained that because neither a suspect class nor a fundamental right was involved, the rational basis test governed and the ordinances passed that low level of scrutiny.
¶ 7 Plaintiffs filed a 52-page motion for new trial, arguing for the first time that the City had applied its charge schedule in an unconstitutional manner. The court denied the motion, and dismissed the action with prejudice as to the named Plaintiffs, but without prejudice as to the class. Plaintiffs timely appeal the court's rulings. We have jurisdiction over this appeal pursuant to Ariz. Const. Art. 6, § 9, and A.R.S. § 12-2101(A) and (F)(1) (2003).
DISCUSSION
¶ 8 We review challenges to the constitutionality of legislation de novo. E.g., Bertleson v. Sacks Tierney, P.A., 204 Ariz. 124, 126, ¶ 6, 60 P.3d 703, 705 (App.2002). We presume constitutionality, and "will not declare a statute unconstitutional unless we are `satisfied beyond a reasonable doubt' that it conflicts with the federal or state constitutions." Id. (quoting Chevron Chem. Co. v. Superior Court, 131 Ariz. 431, 438, 641 P.2d 1275, 1282 (1982)). We will, whenever possible, construe a statute or ordinance so as to find it constitutional. E.g., Jilly v. Rayes, 221 Ariz. 40, 42, ¶ 4, 209 P.3d 176, 178 (App. 2009).
¶ 9 Plaintiffs' arguments on appeal are based solely on equal protection.[3] First, they argue that under the utility's charge-and-credit system, properties that similarly burden the utility are required to pay different net amounts. Second, they argue that the City failed to bill all properties that are required to be billed. For its part, the City contends that Plaintiffs' notice of claim was defective because it failed to set forth a sum certain for which the claims could be settled.
I. PLAINTIFFS' CLAIMS FOR DECLARATORY RELIEF WERE NOT SUBJECT TO THE NOTICE OF CLAIM REQUIREMENT, AND THE CITY WAIVED ITS OBJECTIONS CONCERNING PLAINTIFFS' CLAIMS FOR DAMAGES.
¶ 10 The City contends that Plaintiffs' notice of claim was defective because it failed to state a sum certain for which the putative class representatives would settle, stated an indefinite alternative settlement formula, and failed to state adequate facts to support the claim. We reject these arguments.
¶ 11 First, in Martineau v. Maricopa County, 207 Ariz. 332, 86 P.3d 912 (App. 2004), we held that the notice of claim statute does not apply to claims for declaratory relief. 207 Ariz. at 337, ¶ 24, 86 P.3d at 917. See also Home Builders Ass'n of Cent. Ariz. v. Kard, 219 Ariz. 374, 381, ¶ 31, 199 P.3d 629, 636 (App.2008); State v. Mabery Ranch Co., 216 Ariz. 233, 245, ¶ 52, 165 P.3d 211, 223 (App.2007). Martineau recognized that the language and policies of the notice of claim statute are inconsistent with claims for declaratory relief. 207 Ariz. at 335-36, ¶¶ 19-21, 86 P.3d at 915-16. The notice of claim statute is designed to allow public entities to investigate and assess liability, to permit the possibility of pre-litigation settlement, and to assist public entities in financial planning and budgeting. Id. at ¶ 19. Martineau noted that a "claim for declaratory relief does not seek damages and would not result in any *154 monetary award against [a public entity] even if successful ... and therefore would have no direct effect on [the entity's] financial planning or budgeting." Id. at 336, ¶ 20, 86 P.3d at 916.
¶ 12 The City contends that declaratory relief for Plaintiffs would have a "direct effect" on the City's financial planning and budgeting because, were the challenged ordinances declared unconstitutional, the City would have to reassess its planning and budgeting in stormwater management and other areas. But Martineau clearly held that a "direct effect" implicated by § 12-821.01 is one caused by a monetary award, not declaratory relief. Declaratory relief may naturally require public entities to reassess their future financial planning in some cases, but that consequence of declaratory relief is not the functional equivalent of a judgment requiring payment of a monetary award for past damages. We therefore hold that Plaintiffs' claims for declaratory relief were not subject to the notice of claim requirement.
¶ 13 Plaintiffs do not dispute that their claims for damages were subject to the notice of claim requirement, but argue that the City waived any objections to its compliance by failing to raise the issue until it had actively litigated the case for years. We agree. When a government entity substantially litigates the merits of a case without seeking dismissal for a defective notice of claim, it waives that affirmative defense even though it may not intend to do so. See City of Phoenix v. Fields, 219 Ariz. 568, 574, ¶ 29, 201 P.3d 529, 535 (2009) ("Even when a party preserves an affirmative defense in an answer or a Rule 12(b) motion, however, it may waive that defense by its subsequent conduct in the litigation.... This rule applies to the notice of claim statute defense." (citation omitted)); County of La Paz v. Yakima Compost Co., 224 Ariz. 590, 597, ¶ 8, 233 P.3d 1169, 1176 (App.2010). Here, there is no genuine dispute that the City permitted an amendment of the complaint, participated in trial management conferences and actively pursued discovery and disclosure for more than three years before seeking a ruling on the validity of the notice of claim. We conclude as a matter of law that the City has waived any notice of claim objection to Plaintiffs' claims for damages.[4]
II. THE CHARGE-AND-CREDIT SYSTEM DOES NOT VIOLATE THE EQUAL PROTECTION GUARANTEE.
¶ 14 The stormwater management utility's charge-and-credit system, established by the challenged ordinances, determines the net amount an owner of property is required to pay to the utility. Charges are imposed based on the number of equivalent rate units ("ERUs") attributable to a property. An ERU is a direct function of a property's impervious area. Impervious area "include[s], but is not necessarily limited to, any man-made structure or surface that is built or laid upon the natural surface of the land which has the effect of increasing, collecting, concentrating, re-directing, or otherwise altering stormwater runoff from land in a manner that increases peak stormwater runoff rates, the total volume of stormwater discharged from a property, or the pollutant loading contained in stormwater runoff."
¶ 15 Credits against charges are awarded for certain runoff mitigation measures, including the installation of detention structures and rainwater barrels. Detention structures are awarded a 9% credit if built before the year 2000, and a 19.5% credit if built after 2000. Rainwater barrels under residential downspouts are awarded a 10% credit.
¶ 16 The charge-and-credit system therefore requires owners to pay different amounts to support the utility depending on the characteristics of their properties and the mitigation measures adopted. Plaintiffs complain that the disparate treatment is unconstitutional because it is unrelated to the relative burdens that the properties impose on the utility.
A. The Rational Basis Test Applies.
¶ 17 Municipal ordinances are presumed constitutional, see State v. Kaiser, 204 *155 Ariz. 514, 517, ¶ 8, 65 P.3d 463, 466 (App. 2003), and do not necessarily violate equal protection merely because they treat similarly situated classes differently. Big D Constr. Corp. v. Court of Appeals, 163 Ariz. 560, 565, 789 P.2d 1061, 1066 (1990). When an ordinance affects a suspect class or a fundamental right, the strict scrutiny test applies, and the ordinance will be upheld only if it is "necessary to promote a compelling state interest." Id. at 566, 789 P.2d at 1066. When an ordinance affects neither a suspect class nor a fundamental right, however, the rational basis test applies, and the ordinance will be upheld so long as it is "rationally and reasonably related to furthering some legitimate government interest." Id.
¶ 18 The strict scrutiny test would apply in this case only if a fundamental right were affected by the challenged ordinances.[5] The Arizona Constitution may create a fundamental right either explicitly or implicitly. See Kenyon v. Hammer, 142 Ariz. 69, 79, 688 P.2d 961, 971 (1984). Plaintiffs contend that the explicit right against rate discrimination by public service corporations guaranteed by Ariz. Const. Art. 15, § 12 (which we agree is fundamental) is implicated by the challenged ordinances. We conclude, however, that the provision does not apply to this case, and the implicit right urged by Plaintiffs does not exist.
1. Ariz. Const. Art. 15, § 12 Does Not Apply to Municipal Corporations.
¶ 19 Plaintiffs contend that Art. 15 of the Arizona Constitution creates a fundamental right to equal charges for utility services such as stormwater management, and that a strict level of scrutiny should apply. Art. 15 establishes the Arizona Corporation Commission, which regulates public service corporations. Ariz. Const. art. 15, § 3. "Public service corporations" are defined in Art. 15, § 2 as "[a]ll corporations other than municipal engaged in furnishing [various services]."[6] (Emphasis added.)
¶ 20 Art. 15, § 12 provides: "All charges made for service rendered, or to be rendered, by public service corporations within this State shall be just and reasonable, and no discrimination in charges, service, or facilities shall be made between persons or places for rendering a like and contemporaneous service...." (Emphasis added.) Because Art. 15, § 12 is by its plain terms limited to "public service corporations," and municipal corporations are explicitly excluded from the definition of "public service corporations" by Art. 15, § 2, we conclude that the explicit right guaranteed by Art. 15, § 12 does not apply against the City. See City of Phoenix v. Wright, 52 Ariz. 227, 230, 80 P.2d 390, 391 (1938).
2. No Implicit Right Under Ariz. Const. Art. 15, § 12 Applies Against Municipal Corporations.
¶ 21 Relying principally on Town of Wickenburg v. Sabin, 68 Ariz. 75, 200 P.2d 342 (1948), Plaintiffs argue that the Arizona Supreme Court has long recognized an implicit constitutional right under Art. 15, § 12 when a municipal corporation provides utility services. Plaintiffs' reliance on Sabin is misplaced.
¶ 22 In Sabin, the Town of Wickenburg, a municipal corporation, held an exclusive monopoly on water and electric distribution systems within the town limits. 68 Ariz. at 76, 200 P.2d at 342. Sabin lived in a "tent house" in a subdivision that had recently become part of the town. Id. He applied to the town clerk for water and electric services and paid the $5 fee for each service, but was told that his application would be denied unless he tendered a $50 deposit to guarantee that he would build a permanent residence on his property. Id. at 76, 200 P.2d at 342-43. Sabin refused to pay the deposit, and his application was denied. Id. at 76, 200 P.2d at 343. It was undisputed that the Town provided water and electric services for the customary $5 fee to an individual living in a tent house on the lot next to *156 Sabin's, yet the town clerk admitted that Sabin was denied services because he lived in a tent house. Id. at 77, 200 P.2d at 343. The superior court compelled the Town to furnish Sabin with water and electric services, and the Arizona Supreme Court affirmed. Id. at 76, 80, 200 P.2d at 342, 345.
¶ 23 The court (relying extensively on McQuillin's Municipal Corporations § 1829 (2d ed.1943)) noted the well-settled state of the law generally prohibiting discrimination by public service corporations. Id. at 77, 200 P.2d at 343. The court quoted McQuillin for the following proposition: "The charges must be equal to all for the same service under like circumstances. A public service corporation is impressed with the obligation of furnishing its service to each patron at the same price it makes to every other patron for the same ... or similar service." Id. (quoting McQuillin, § 1829). The court then held: "As regards discrimination in the public utility field, the [Town], a municipal corporation, stands in the same position as a private corporation." Id. at 78, 200 P.2d at 344. The court determined that there was ample evidence that Sabin's property was within an established "service zone," and that the Town arbitrarily and unjustly discriminated against Sabin by demanding that he pay a deposit not required of others within the zone before it would provide services to his property. Id. at 80, 200 P.2d at 345. Plaintiffs read this holding as bringing municipalities within the scope of Art. 15. We disagree.
¶ 24 The issue in Sabin was not whether a utility customer had a fundamental constitutional right to a nondiscriminatory rate under Art. 15, § 12. Indeed, Sabin did not even cite Art. 15. Rather, the issue was whether the Town had arbitrarily discriminated against a single property owner or whether the increased fee it wished to charge was justified by a purported need to expand its infrastructure to expand the service. The court rejected as "fantastic" the Town's contention that it had a reasonable justification for the different rate that it charged Sabin, and therefore concluded that the discriminatory rate was unlawful.
¶ 25 We do not read Sabin as recognizing a fundamental right under the constitution or common law. To the contrary, Sabin rests on a factual determination that the Town's decision was purely arbitrary. No strict scrutiny or constitutional analysis was required or applied to reach the result in that caseindeed, the court's analysis closely resembled modern rational basis review. We recognize that Sabin held that, in some circumstances, "a municipal corporation stands in the same position as a private corporation." 68 Ariz. at 78, 200 P.2d at 344. But we reject the invitation to read that holding as conflating the character of public and private enterprises for all purposes in the area of utility services. Plaintiffs' reading would do violence to the plain language of Art. 15, § 3, and it would ignore the Sabin court's own recognition that "a municipality, as distinguished from a private utility corporation, may exercise a governmental discretion as to the limits to which it is advisable to extend its water mains and power lines, and an extension will not be compelled by the courts at the instance of an inhabitant." 68 Ariz. at 79, 200 P.2d at 345 (emphasis added).
¶ 26 Five years after Sabin, the Arizona Supreme Court held: "It is well established in this jurisdiction that municipal corporations may engage in the occupations referred to in Section 2 of Article 15 of the Constitution of Arizona, and that while thus acting they are not `public service corporations' within the meaning of the constitution." Rubenstein Constr. Co. v. Salt River Project Agric. Improvement & Power Dist., 76 Ariz. 402, 404, 265 P.2d 455, 456 (1953). We conclude, therefore, that the supreme court has never recognized an implicit fundamental right that supports Plaintiffs' claims. We likewise decline to do so, and conclude that the appropriate level of constitutional scrutiny in this case is that prescribed by the rational basis test.
B. The Charge-and-credit System Survives Rational Basis Review.
¶ 27 As we noted above, an ordinance will be upheld under the rational basis test so long as it is "rationally and reasonably related to furthering some legitimate government interest." Big D Constr. Corp., 163 Ariz. at 566, 789 P.2d at 1067. Under *157 that standard, "[a] perfect fit is not required; a[n] [ordinance] that has a rational basis will not be overturned merely because it is not made with mathematical nicety, or because in practice it results in some inequality." Id. (internal quotation marks omitted). To determine whether the rational basis test is satisfied, therefore, we must ascertain (1) whether the challenged ordinances serve a legitimate purpose, and (2) whether the classification drawn in the ordinances rationally furthers that purpose. Kenyon, 142 Ariz. at 78, 688 P.2d at 970.
¶ 28 Our analysis is not limited to the actual purpose of the ordinances, and we do not require proof of the legislative considerations that actually gave rise to the ordinances. If we can conceive of a rational basis for the classification, the test is satisfied. Lerma v. Keck, 186 Ariz. 228, 233, 921 P.2d 28, 33 (App.1996). A classification will be found not to rationally further an ordinance's purpose "only if the classification rests on grounds wholly irrelevant to the achievement of [the purpose]." Kenyon, 142 Ariz. at 78, 688 P.2d at 970 (quoting McGowan v. Maryland, 366 U.S. 420, 425, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961)). "[T]he courts accept the legislative determination of relevancy so long as it is reasonable, even though it may be disputed, debatable or opposed by strong contrary arguments." Id.
¶ 29 We begin the analysis with the presumption that the rational basis test is satisfied. Lerma, 186 Ariz. at 233, 921 P.2d at 33. That presumption can be overcome only by clear evidence of arbitrariness or irrationality, and the burden of proof rests on the party challenging the constitutionality of the law. Id.; Uhlmann v. Wren, 97 Ariz. 366, 388, 401 P.2d 113, 128 (1965). Plaintiffs have not met that burden. Plaintiffs relied on expert opinion evidence concerning the fairness of the system, but such opinions prove only that the policies of the system are fairly debatablenot that the system's classifications lack a rational basis.
¶ 30 Here, the undisputed purpose of the utility is to manage stormwater runoff. The creation and funding of the utility are legitimate legislative goals. We conclude that the classifications drawn by the charge-and-credit system, though perhaps not crafted with ideal precision, rationally further that purpose.
¶ 31 Charges are imposed based on a property's impervious area, which by definition is area that has an increased impact on stormwater runoff and therefore imposes an increased burden on the utility. Properties that burden the utility more are therefore charged more. Credits are awarded for activities that reduce the burden on the utility and allow for rainwater recycling. The credits therefore provide incentives for property owners to engage in activities that the legislative body considers desirable.
¶ 32 Plaintiffs rely heavily on evidence that could demonstrate inequities between the extent to which properties actually burden the utility and the amount property owners are required to pay. For example, Plaintiffs contend that the credit system is unfair because (1) landowners who eliminate their runoff contribution to the stormwater system are still required to pay significant charges, (2) residential properties do not face the same charges as commercial properties despite the fact that they may present identical burdens to the system, and (3) mitigation measures with comparatively modest effect, such as rainwater barrels, are granted disproportionately high credits.
¶ 33 We do not doubt that the fit between the burdens properties create and the charges they face under the ordinances is highly imperfect. But the algorithms that determine specific amounts of charges and credits are policy decisions that reflect legislative judgments concerning the relative values of different types of activities. See, e.g., Third & Catalina Assocs. v. City of Phoenix, 182 Ariz. 203, 209-10, 895 P.2d 115, 121-22 (App.1994) (finding no equal protection violation in ordinance exempting residential properties from retrofitting requirement and noting that "underinclusiveness does not violate the equal protection clause"); Home Builders Ass'n of Cent. Arizona, Inc. v. City of Scottsdale, 116 Ariz. 340, 342, 569 P.2d 282, 284 (App.1977) (upholding against equal protection challenge municipal water charges for *158 future building permits that did not apply to existing users).
¶ 34 Here, the classifications the ordinances draw can be rationally tied to legitimate legislative objectives. Though not all properties burden the utility equally, all benefit from its services. The decision to charge developed land but not undeveloped land is supported by evidence concerning the comparative likelihood that developed property will contribute to the velocity and pollution content of stormwater runoff. Objections to the substance and the fairness of such policy decisions are properly directed to the legislative branchunder rational basis review, even debatable classifications will pass muster. We conclude, therefore, that there is a rational basis for the charge-and-credit system and that the superior court did not err in granting summary judgment for the City concerning the facial validity of the challenged ordinances.
III. THE CHARGE-AND-CREDIT SYSTEM IS NOT AN "UNLAWFUL TAX."
¶ 35 Plaintiffs contend that the stormwater management utility imposes a tax, not a fee as the City claims. They argue that because the stormwater utility is intended to benefit the community generally, the utility fee is "actually a tax masquerading as a fee to avoid the legal requirements for the imposition of a lawful tax." We disagree. In Stop Exploiting Taxpayers v. Jones, this court recognized the general rule that rates charged for city-owned utilities ordinarily are not taxes. 211 Ariz. 576, 579, ¶ 13, 125 P.3d 396, 399 (App.2005) ("[U]tility rates are not taxes even if some of the proceeds transferred to the general fund are used for other governmental programs." (citing, inter alia, 12 Eugene McQuillin, The Law of Municipal Corporations § 35:38 (3d rev. ed.1999))). We therefore conclude that the restrictions governing taxation do not apply to the fees at issue.
IV. THE CITY'S FAILURE TO COLLECT FEES FROM PROPERTIES LACKING WATER METERS MAY AMOUNT TO AN UNCONSTITUTIONAL APPLICATION OF ITS ORDINANCES.
¶ 36 Ordinance 2003-02 provides that all properties that incur charges shall be billed, regardless of the presence or absence of a City water meter. Under the ordinance, stormwater management utility charges must be added to the water bills for properties connected to the City's water utility, and separate bills must be issued for other properties.[7] Nonetheless, it is undisputed that only properties with City water meters have received bills. Plaintiffs contend that because the City has enforced the ordinances based upon a classification that is neither embodied in the ordinances nor supported by a rational relationship to a legitimate legislative goal, it has violated the equal protection guarantee. We agree that the evidence could support such a conclusion.
¶ 37 As a threshold matter, the City contends that because this "as applied" challenge was first raised in the motion for new trial, the argument is waived. We disagree. Though arguments raised for the first time in a motion for new trial are generally not subject to appellate review, we have considered such arguments in limited circumstances. See, e.g., Parra v. Cont'l Tire N. Am., Inc., 222 Ariz. 212, 214 n. 2, ¶ 7, 213 P.3d 361, 363 n. 2 (App.2009) ("On appeal, defendants argue we should not consider any new arguments plaintiffs made in their motion for new trial. Because plaintiffs appealed from the denial of their new trial motion, however, those arguments properly are before us."). Here, the motion for new trial was not presented after a trial, but after a ruling on summary judgment. The court received the benefit of a full adversary presentation on a complete record, and Plaintiffs have appealed from its ruling on the motion for new trial. In these circumstances, we *159 may consider Plaintiffs' legal argument properly presented for review.
¶ 38 Though it is undisputed that the City failed to bill all eligible property owners according to its own ordinance, that fact alone is not enough to create an equal protection violation. In Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 88 L. Ed. 497 (1944), the United States Supreme Court held that "[t]he unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination." The Court observed that purposeful discrimination may be evidenced in one of two ways: it "may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself." Id. (citation omitted). Regarding the latter, the Court further explained that "a discriminatory purpose is not presumed; there must be a showing of `clear and intentional discrimination.'" Id. (citation omitted). The Court observed that such a showing may be established by systematic practices such that "the practical effect of the official breach of law is the same as though the discrimination were incorporated in and proclaimed by the statute," id. at 9, 64 S. Ct. 397, but also noted that systematic and continuous practices are not required to make the showing. Id. at 9-10, 64 S. Ct. 397.
¶ 39 When there is evidence demonstrating that a facially neutral enactment has been applied in a purposefully discriminatory fashion, the equal protection analysis must proceed as if the law itself were discriminatory, the constitutionality of which must then be assessed by application of the appropriate level of scrutiny. See Aida Renta Trust v. Ariz. Dep't of Revenue, 197 Ariz. 222, 236-37, ¶ 44-46, 3 P.3d 1142, 1156-57 (App.2000). Therefore, the preliminary inquiry is whether Plaintiffs have proven that a genuine governmental classification exists despite the facially neutral language of Ordinance 2003-02, either because a purposeful discrimination appears on the face of the City's actions in issuing bills, or because purposeful discrimination may be shown by extrinsic evidence.
¶ 40 Plaintiffs contend that despite the facially neutral language of the ordinance, only properties with City water meters were issued bills, from the stormwater management utility's inception and for many years thereafter. The City acknowledges the truth of that assertion, but argues that the record contains no evidence that any properties without City water meters contain impervious area and therefore should have been issued bills.
¶ 41 The testimony of Malcolm Alter, the City's Stormwater Manager, contradicts the City's argument and reveals evidence of two critical facts: the City has never made an effort to bill owners of properties that lack water meters, and that decision may have been a purposeful policy decision. When asked to explain the City's practice of billing only properties with City water meters, Alter explained his statement in an earlier affidavit that "[i]n implementing the fee, the Council recognized that, pragmatically speaking, the best way in which to charge such a fee was by billing it in conjunction with a party's water bill." Alter also testified that in some circumstances, properties with impervious area but without City water meters could contribute to pollution in stormwater runoff. From this testimony, a finder of fact could infer that the City has made a purposeful policy decision to enforce its own law based on the presence or absence of a water meter, despite its own legislative determination that properties with impervious areas that lack water meters should be billed.
¶ 42 We express no opinion concerning the validity of Plaintiffs' assertion that properties exist that should have been billed, or the City's ability to demonstrate that such a classification could pass muster under the rational basis test. But on this record, we cannot hold that summary judgment was appropriate. We therefore remand this case for further proceedings concerning Plaintiffs' "as applied" challenge.
*160 V. ARIZONA HAS NOT YET RECOGNIZED A DAMAGE REMEDY FOR STATE CONSTITUTIONAL VIOLATIONS.
¶ 43 Because we conclude that one of Plaintiffs' state constitutional claims may have merit, we are compelled to reach the issue of potential damages. This case alleges only violations of the Arizona Constitution. No claim for relief pursuant to 42 U.S.C. § 1983 for violation of the equal protection guarantee contained in the federal constitution appears in the original or amended complaint. Though the parties appear to have proceeded in the trial court on the belief that a damage remedy like that created by § 1983 exists for state constitutional violations, we find no legal basis for such relief. Accordingly, we alerted the parties to this issue before oral argument, and sought supplemental authority on the question.[8]
¶ 44 In support of their contention that damages are allowed, Plaintiffs rely on Corrigan v. City of Scottsdale, 149 Ariz. 538, 720 P.2d 513 (1986). We find that reliance misplaced. Corrigan held that damages could be awarded after a landowner successfully argued that a zoning ordinance was unconstitutional and amounted to a taking of property without just compensation. Id. at 543, 720 P.2d at 518. But the Arizona Constitution specifically provides for compensation in cases involving takings of property, and Corrigan nowhere held or implied that a general damage remedy for violations of other constitutional rights, such as the right to equal protection, exists under Arizona law. Plaintiffs also cite Justice Feldman's concurring opinion in Jung v. City of Phoenix, 160 Ariz. 38, 42, 770 P.2d 342, 346 (1989), as suggesting that damage claims may be brought in this context. We also find that case distinguishable, for the simple reason that the plaintiffs in Jung invoked their federal constitutional rights and sought damages under 42 U.S.C. § 1983.
¶ 45 The Arizona Legislature has never enacted a counterpart to § 1983, and no published Arizona decision has created a damage remedy for general violations of state constitutional rights. Other state courts have split on the question whether a damage remedy exists to redress state constitutional violations. Some state courts have held that no damage remedy is available. See, e.g., Kelley Prop. Dev., Inc. v. Lebanon, 226 Conn. 314, 627 A.2d 909 (1993); Bowden Bldg. Corp. v. Tenn. Real Estate Comm'n, 15 S.W.3d 434 (Tenn.Ct.App.1999); City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex.1995).
¶ 46 But a number of state courts have extended the reasoning of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), in which the Supreme Court recognized an implicit cause of action for violations of the federal constitution by federal officials, to hold that damages are available in certain classes of cases involving state constitutional violations. See, e.g., Gay Law Students Ass'n v. Pacific Tel. & Tel. Co., 24 Cal. 3d 458, 156 Cal. Rptr. 14, 595 P.2d 592 (1979) (recognizing cause of action for damages based on state equal protection clause); Newell v. City of Elgin, 34 Ill. App. 3d 719, 340 N.E.2d 344 (1976) (recognizing cause of action for damages against police officers for violation of state constitutional rights); Widgeon v. E. Shore Hosp. Ctr., 300 Md. 520, 479 A.2d 921 (1984) (finding a cause of action for damages for deprivation of liberty or property interests); Dorwart v. Caraway, 312 Mont. 1, 58 P.3d 128 (2002) (damage remedy available for violations of state constitutional right to privacy, due process and prohibition of illegal searches); Lloyd v. Borough of Stone Harbor, 179 N.J.Super. 496, 432 A.2d 572 (1981) (affirming damages award under New Jersey Tort Claims Act for violations of state constitutional rights); Hunter v. Port Auth., 277 Pa.Super. 4, 419 A.2d 631 (1980) (finding cause of action under state constitution for denial of public employment).
*161 ¶ 47 We are confronted with an action that, if successful, will present this issue squarely as a matter of first impression. Yet the record is essentially devoid of briefing or argument on the question. We therefore note simply that the Arizona courts have never created a damage remedy for violations of the state constitution, and we decline to do so here.
CONCLUSION
¶ 48 For the foregoing reasons, we affirm the superior court's rejection of Plaintiffs' facial challenge and remand for further proceedings concerning their "as applied" challenge.
CONCURRING: JOHN C. GEMMILL and DIANE M. JOHNSEN, Judges.
NOTES
[1] Plaintiffs nominally challenged Ordinances 2004-22 and 2006-17 on both equal protection and due process grounds, but their allegations and citations to the Arizona Constitution implicated only the equal protection guarantee.
[2] Though Plaintiffs cited the United States Constitution in their notice of claim, they did not pursue federal constitutional claims in their original or amended complaints. Because the trial court granted summary judgment in favor of the City on the merits of Plaintiffs' constitutional claims, it did not have occasion to consider the viability of the damage remedy that Plaintiffs sought. We address the issue infra in Section V. of this opinion.
[3] Plaintiffs' briefs did not urge their due process and takings clause challenges. We therefore deem those arguments abandoned. DeElena v. S. Pac. Co., 121 Ariz. 563, 572, 592 P.2d 759, 768 (1979) (citing ARCAP 13(a)(6)).
[4] Because the defense is waived, we express no opinion on its merit.
[5] Plaintiffs do not contend that they are members of a suspect class.
[6] Since statehood, the Arizona Constitution has expressly exempted municipal corporations from Art. 15, and has specifically limited Art. 15, § 12 to "public service corporations." The Records of the Arizona Constitutional Convention of 1910, at 1431, 1433 (John S. Goff ed., 1991).
[7] The ordinance provides, in pertinent part: "Stormwater management utility services charges shall be added to and collected with the bills as rendered for water.... For those properties not utilizing the City's water utility, a separate bill shall be collected from the property owner of record."
[8] "We may review issues not raised in the trial court when `the record contains facts determinative of an issue which will resolve the action, ... the matter involved is one which affects the general public interest, or where a legal principle, although not suggested by either party, should be adopted on appeal to expedite the enforcement of a right, or redress a wrong.'" City of Tempe v. Fleming, 168 Ariz. 454, 456, 815 P.2d 1, 3 (App. 1991) (quoting Stokes v. Stokes, 143 Ariz. 590, 592, 694 P.2d 1204, 1206 (App. 1984)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261084/ | 59 Pa. Commw. 141 (1981)
In the Matter of the Arbitration Between James Shoemaker and the City of Scranton. City of Scranton, Appellant.
No. 1059 C.D. 1980.
Commonwealth Court of Pennsylvania.
Argued March 5, 1981.
May 4, 1981.
*142 Argued March 5, 1981, before Judges MENCER, MacPHAIL and PALLADINO, sitting as a panel of three.
Peter P. Tayoun, with him John J. Brazil, City Solicitor, and James A. Doherty, Jr., Assistant City Solicitor, for appellant.
Sheldon Rosenberg, with him Nancy Abrams, Rosenberg & Ufberg, for appellee.
OPINION BY JUDGE MacPHAIL, May 4, 1981:
The City of Scranton (Scranton) appeals here from an order of the Court of Common Pleas of Lackawanna County dated April 25, 1980 that denied Scranton's appeal and application for review of an arbitration award and confirmed the award in favor of James Shoemaker (Shoemaker), the appellee. The *143 award held that Shoemaker, a police officer, had been improperly removed from his post on the "K" Squad and ordered his restoration to the "K" Squad.
Shoemaker had been a uniformed police officer in the Scranton Police Department until 1972, when he became a member of the newly formed "K" Squad, a special undercover unit that dealt primarily with the fields of vice and narcotics. He served in the "K" Squad for 7 1/2 years, during which time his conduct and disciplinary record was never called into question. In June 1979, Shoemaker was notified he was being reassigned to uniform duty.
On August 8, 1979, Shoemaker filed a complaint in equity with the Court of Common Pleas of Lackawanna County seeking reinstatement to the "K" Squad. Prior to the hearing he withdrew the action pursuant to an agreement with Scranton to submit the dispute to the American Arbitration Association (AAA). The arbitrator found that Scranton had violated its collective bargaining agreement with the Fraternal Order of Police (FOP) dated December 20, 1971.[1] The arbitrator ordered Shoemaker's restoration to the "K" Squad.
On January 30, 1980, Shoemaker petitioned the lower court to confirm the arbitration award pursuant to Section 9 of the Act of April 25, 1927, P.L. 381, as amended, 5 P.S. § 169 (Arbitration Act). Scranton filed an appeal and application for review with the lower court on January 31, 1980. The cases were consolidated and argued in April 1980. On April 25, 1980, the lower court en banc denied Scranton's appeal and application for review and sustained Shoemaker's *144 motion to confirm the award. Scranton appealed to this Court.
Our scope of review in arbitration cases is narrow. The award of an arbitrator will be sustained "so long as it draws its essence from the collective bargaining agreement." United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597 (1960). An award draws its essence from the collective bargaining agreement if the interpretation can in any rational way be derived from the agreement, viewed in the light of its language, its context, and any other indicia of the parties' intention. Leechburg Area School District v. Dale, Pa., 424 A.2d 1309 (1981); Community College of Beaver County v. Society of Faculty, 473 Pa. 576, 375 A.2d 1267 (1977) and Brownsville Area School District v. Brownsville Education Association, 26 Pa. Commw. 241, 363 A.2d 860 (1976).
I
Scranton first argues that the award was not drawn from the "essence of the collective bargaining agreement." We disagree.
In examining the collective bargaining agreement (Agreement) between Scranton and the FOP, the arbitrator and the lower court focused on the Seniority Agreement. It reads in pertinent part as follows:
1. The seniority principle shall be applied in the Scranton City Police Department on a departmentwide basis and shall include every position in the Scranton City Police Department with the exception of the following:
A. Traffic Control Repair Sergeant,
B. Traffic Division Sergeant,
C. School Patrolman Supervisor,
D. Chief Clerk to the Superintendent of Police, and
*145 E. Armoror Patrolmen.
2. Bidding for positions shall take place once each year from July 1st to July 31st in every particular year unless a new position is created or a vacancy occurs during the year, at which time, bidding shall take place within the next thirty (30) days after the position is created or the vacancy occurs.
3. A seniority principle shall be applied departmentwide within each rank. An officer who does not have the rank commensurate with the rank or vacancy of the new position shall not be permitted to bid for the particular job with the said rank classification, notwithstanding his length of service on the Police Department.
4. The Police officer shall be permitted a testing period of thirty (30) days in which to qualify for the position which he seeks by bidding. Nothing herein shall prevent the City from re-assigning an individual if the City believes that the individual is not qualified to perform the work for the particular position. Any such action by the City will always be subject to the grievance and arbitration procedure as defined in the arbitration award for 1972.
5. The City shall make all attempts to have no special duty appointments. However, if a situation arises which will require a special duty appointment, the appointment shall last for only thirty (30) days, and there shall be no re-appointment of the same person to this position, of another person to this position or of this person to another position. If such action is required by the City, a new position *146 shall be created and the bidding process shall apply thereto.
At the hearing, Scranton argued that the terms "rank" and "position" applied only to jobs certified through the Civil Service Commission and that since assignment to the "K" Squad was not a certified position, Scranton had the right to move officers within the special unit without following the seniority and bidding procedures. The arbitrator concluded, however, that since there were a number of jobs such as assignment to the "K" Squad within the rank of patrolman No. 1, Shoemaker's rank, the assignment of these tasks was governed by seniority. The arbitrator's paramount consideration was the language of paragraph 5. That paragraph limits special appointments to no more than thirty days and if it is necessary to extend a person's appointment, a new position must be created and the bidding process will apply.
In discussing the evidence presented at the hearing, the arbitrator noted that members of the "K" Squad were carried on the Detective Roster under the title "Special Duty," that Scranton had not always strictly adhered to the thirty day limitation, that the "K" Squad had existed for 7 1/2 years, and that at some time during the term of the previous city administration all incumbent members of the "K" Squad had been compelled to bid for their continued membership on the squad. The arbitrator held that given all these facts a position on the "K" Squad was within the term "position" of paragraph 5 of the Seniority Agreement. Our review of the arbitrator's decision convinces us that the arbitrator's award was drawn from the essence of the Agreement.
II
Scranton argues that its right to effectively appeal its case was prejudiced by a lack of a record of *147 the arbitrator's hearing. Neither the Arbitration Act nor the AAA Rules,[2] however, require that a record be made. Section 6 of the Arbitration Act, 5 P.S. § 166, reads in pertinent part as follows:
All testimony shall be taken under oath or affirmation, as is now provided in suits at law, and shall, at the request of either party or the arbitrators, be taken stenographically and made a part of the record.
Rule 21 of the AAA reads as follows:
21. Stenographic Record Any party may request a stenographic record by making arrangements for same through the AAA. If such transcript is agreed by the parties to be, or in appropriate cases determined by the arbitrator to be the official record of the proceeding, it must be made available to the arbitrator, and to the other party for inspection, at a time and place determined by the arbitrator. The total cost of such a record shall be shared equally by those parties that order copies.
In its brief to this Court, Scranton alleged that it wanted to have a record made but all the parties could not agree. We find no requirement that all parties must agree before a record can be made. Since Scranton failed to avail itself of its clear legal right to request a stenographic record of the arbitrator's hearing, Scranton cannot now expect this Court to grant relief because Scranton may have been prejudiced by its own failure to protect itself.[3]
*148 Scranton further argued that the conduct of the arbitrator showed evident partiality and prejudice to Scranton and that the award should be vacated pursuant to Section 10(c) of the Arbitration Act, 5 P.S. § 170(c). This section provides in pertinent part as follows:
[T]he court shall make an order vacating the award upon the application of any party to the arbitration:
. . . .
(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or any other misbehavior by which the rights of any party have been prejudiced.
We agree with the lower court that it is difficult to give consideration to arguments of the arbitrator's misconduct and erroneous evidentiary rulings in the absence of a stenographic record of the hearing. It has been held, however, that a party's continued participation in proceedings where the arbitrator may have acted in an objectionable manner bars a later complaint as to the misconduct of the arbitrator. Reisman v. Ranoel Realty Co., 224 Pa. Super. 220, 303 A.2d 511 (1973). The Court in Reisman relied on Rule 37 (now Rule 33) of the AAA which states,
Any party who proceeds with the arbitration after knowledge that any provision or requirement of these Rules has not been complied *149 with and who fails to state his objection thereto in writing, shall be deemed to have waived his right to object.
We find that Scranton by its failure to act has indeed waived its right to object.
III
Finally, Scranton contends that the lower court should not have sustained the motion to confirm the arbitration award because the motion cannot be filed until the appellate procedure has been exhausted. This argument is clearly without merit.
Section 9 of the Arbitration Act, 5 P.S. § 169 provides as follows:
Any time within one year after the award is made any party to the arbitration may apply to the court having jurisdiction for an order confirming the award, and thereupon the court shall grant such an order, unless the award is vacated, modified, or corrected as prescribed in the next two sections. Notice in writing of the application shall be served upon the adverse party or his attorney five days before the hearing thereof. (Emphasis added.)[4]
The law is clear on its face. It merely provides a one year statute of limitations to apply for confirmation of the award. The filing of the motion to confirm the award does not interfere in any manner with the appellate rights of the aggrieved party.
In the instant case, Scranton filed a timely appeal and application for review of the arbitrator's award which was denied. Since there had been a disposition of the appeal, it was proper for the lower court *150 to confirm Shoemaker's award. Scranton still had the right, which it obviously exercised, to appeal to this Court.
For the reasons given above, we hereby affirm the order of the Court of Common Pleas of Lackawanna County.
ORDER
AND NOW, this 4th day of May, 1981, the Orders of the Court of Common Pleas of Lackawanna County dated April 25, 1980, denying the City of Scranton's Appeal and Application for the Review of the Award of Arbitrators and sustaining the Motion to Confirm the Arbitration Award to James Shoemaker are hereby affirmed.
Judge WILKINSON, JR. did not participate in the decision in this case.
NOTES
[1] Although Shoemaker was a member of the FOP, E.B. Jermyn Lodge No. 2, the FOP refused to participate in the arbitration proceeding on the grounds that Shoemaker had not followed the grievance procedure allegedly called for in the FOP's customs and procedures.
[2] American Arbitration Association, The Voluntary Labor Arbitration Rules of the American Arbitration Association (as amended and in effect January 1, 1979).
[3] Although the instant case involves an agreement to submit to arbitration, we note with interest that even in compulsory arbitration cases the Pennsylvania Supreme Court does not require that a stenographic record be made. Pa. R.C.P. No. 1304, adopted March 16, 1981, affective 60 days thereafter, 11 Pa. B. 1078 (1981) provides in pertinent part as follows:
(c) A stenographic record or a recording of the hearing shall not be made unless a party does so at his own expense. . . .
[4] Sections 10 and 11 of the Arbitration Act, 5 P.S. §§ 170 and 171, specify the grounds upon which a party may petition the court to vacate, modify or correct the award. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261086/ | 428 A.2d 1104 (1981)
In re Appeal of Norris KNOSHER.
No. 203-80.
Supreme Court of Vermont.
February 3, 1981.
Motion for Reargument Denied February 23, 1981.
Norris Knosher, pro se.
Paul P. Hanlon, Gen. Counsel, Dept. of Taxes, Montpelier, for defendant.
Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SMITH, J. (Ret.), Specially Assigned.
BILLINGS, Justice.
This case involves an appeal by a taxpayer from an assessment of additional income taxes made by the Vermont Department of Taxes (Department).
Under the Tax Reduction and Simplification Act of 1977, Pub.L.No.95-30, § 202, 91 Stat. 126 (1977), sections 44B and 51 of the Internal Revenue Code permitted a partial income tax credit for wages paid to certain new employees. Under I.R.C. § 280C a taxpayer was not allowed to claim a deduction for wages paid to the extent of the credit allowed. The taxpayer in this case claimed a certain amount as a new jobs credit on his federal income tax return for the year 1977. Vermont income tax liability for that year was defined as 25% of the taxpayer's federal income tax liability. Vt. Acts, 1967, No. 121, § 4. In determining his *1105 Vermont income tax liability the taxpayer calculated his federal income tax liability as if he had not claimed the new jobs credit and had claimed a full deduction for wages paid. This reduced his Vermont income tax liability by $54.25. The department issued a tax assessment for that amount. The taxpayer appealed, and after a hearing the Deputy Commissioner of Taxes affirmed the assessment. The taxpayer appealed the determination of the Deputy Commissioner to the Washington Superior Court. In accordance with V.R.A.P. 5(a) that court reported the following question to this Court:
May a taxpayer elect to calculate his Vermont income tax for 1977 based upon what his federal income tax liability would be if he deducted all salaries actually paid to employees, even though he did in fact take the Federal new jobs credit and reduced his deduction for salaries on his Federal return by the amount of the new jobs credit as required by Internal Revenue Code § 280C where the new jobs credit is taken?
The answer to this question depends on the definition of federal income tax liability for Vermont income tax purposes. For the tax year in question this was defined as follows:
"Federal income tax liability" means, for any taxpayer and for any taxable year, the federal income tax payable by the taxpayer for that taxable year under the laws of the United States after the allowance of the retirement income credit, investment credit, foreign tax credit, child care and dependent care credits, general credit, and tax-free covenant bonds credit, but before the allowance of any other credit against that liability or the addition of any surtax upon that liability granted or imposed under the laws of the United States. (emphasis added). Vt.Acts, 1978, No. 117 (Adj. Sess), § 1.
It is clear from this section that the taxpayer may not claim as his federal income tax liability a figure after the allowance of the new jobs credit, as this is not one of the credits listed. This is not, however, what the appellant seeks to do. He wishes to claim as a deduction the full amount of wages which he paid to employees. Under the language of this section he may do so. Federal income tax liability is the federal tax payable before the allowance of the new jobs credit. It is only after this credit is allowed that, under section 280C of the Internal Revenue Code, the taxpayer is denied a deduction for wages paid to the extent of the credit allowed. Before the allowance of the new jobs credit the taxpayer is entitled to the full deduction for wages paid. If the taxpayer were not permitted to take the full deduction for wages paid, it would overstate the taxpayer's income, and Vermont in effect would be taxing the federal new jobs credit.
The Department has argued that a legislative intent not to allow a taxpayer the benefit of wage deductions to the extent of the new jobs credit allowed may be inferred from acts subsequent to the tax year in question. In 1980 the legislature enacted 32 V.S.A. 5823(a)(5) which provided, for tax years after January 1, 1979, the very relief sought by the taxpayer in this case. It is, of course, difficult to determine what the intent of the legislature may have been, but we believe this amendment supports the taxpayer's position in this case. "[T]he legislative change must be attributed either to a policy of lessened taxation ... or a recognition that the amendment embodies and clarifies its previous intent. The latter conclusion seems the more logical." F. W. Woolworth Co. v. Commissioner of Taxes, 133 Vt. 93, 101, 328 A.2d 402, 407 (1974) (Larrow, J., dissenting).
We believe that our holding in the present case is inconsistent with our earlier decision in F. W. Woolworth Co. v. Commissioner of Taxes, 130 Vt. 544, 298 A.2d 839 (1972). Woolworth concerned the interpretation of a different statutory provision and was not cited by the Department, but the issue is analogous to that of the case at hand. Justice Larrow, in a dissenting opinion in a later related case, criticized the reasoning in Woolworth. F. W. Woolworth Co. v. Commissioner of Taxes, supra, 133 Vt. at 100, 328 A.2d at 407. We find his dissent more persuasive than the opinion in *1106 the earlier Woolworth decision, and do not consider that decision to be controlling in the case at hand. To the extent that the opinion in F. W. Woolworth v. Commissioner of Taxes, supra, 130 Vt. 544, 298 A.2d 839 (1972), is inconsistent with our decision in the present case, it is overruled.
The reported question is answered in the affirmative. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319470/ | 85 Ga. App. 617 (1952)
70 S.E.2d 48
HODGES
v.
THE STATE.
33758.
Court of Appeals of Georgia.
Decided February 27, 1952.
Rehearing Denied March 13, 1952.
*618 Barrett & Hayes, A. Tate Conyers, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, C. O. Murphy, B. B. Zellars, Wm. Hall, contra.
MacINTYRE, P. J.
(After stating the foregoing facts.) 1. Margaret Hodges was tried and convicted, in the Criminal Court of Fulton County, for the offense of operating a criminal lottery alleged to have been committed on October 25, 1949. It was further alleged that the date was an essential element in the crime committed. The jury were authorized to find from the substantive evidence that there was a lottery in operation in Fulton County, Georgia, known as the number game, on October 25, 1949; that this lottery was owned and operated by persons known as operators, sometimes called bankers; that the operator hired agents known as pick-up men, writers, station agents, and office workers; that there was such a number game in operation in Fulton County, Georgia, on October 25, 1949; and that on such date Mrs. Hodges participated in the running of such lottery as a banker or owner-operator thereof.
A. D. Quinn testified for the State against the defendant, as an accomplice in the offense for which he was on trial. His testimony was damaging. Counsel for the defense, in cross-examining a police detective, Mann, also a witness for the State, asked whether or not Quinn had been prosecuted for the lottery in which he contended he and the defendant engaged, for the purpose of attempting to discredit Quinn's testimony by showing that he had been granted immunity from prosecution. During the examination of this officer, it appeared that he had testified against the witness Quinn on a hearing for revocation of a conditional pardon under a previous sentence, but had not testified on any charge growing out of the present offense in a new proceeding. During such cross-examination, the defense counsel and the presiding judge engaged in a colloquy. The defense counsel made the following statement: "The fact is that Quinn has never been prosecuted before Your Honor for the crime the *619 officers charge him with." The trial judge explained: "The question to be passed on there is whether or not if a man has a conditional pardon conditioned on his not violating the law again, and then he is brought before the court and evidence adduced to show he has violated the law and his conditional pardon is revoked, and he is required to serve the 24 months, whether or not it is prosecuting him or not, which is for the court to say." The defense counsel asked: "Does the court contend that this accusation against this man, charging him with committing this crime in 1949 is still open in this court, or that, if he had a conditional pardon and same was revoked, it would settle this case?" The presiding judge replied: "No, sir, but you are asking about when the court revoked a conditional pardon for a particular offense, and it is not customary to prosecute the man on that offense if the court uses it for revocation of the suspended sentence." Thereupon the defense counsel made a motion for mistrial and urged: "I make a motion for a mistrial on the ground that since the court has stated the facts it has to the jury, `that it is not customary to prosecute him,' that it is an expression of opinion by the court taking away from the jury the right to pass on it and is so highly prejudicial for the court to say it that it can not be overcome." The trial court overruled the motion to declare a mistrial and stated: "Mr. Barrett asked me the question if I contended a certain thing and I answered it, and if he asked the question and I answered it, I don't think it is proper for counsel to take advantage of it as grounds for a mistrial and I overrule the motion for mistrial." The court then stated to the jury: "Gentlemen of the jury, I had no intention of making a statement prejudicial to the jury and withdraw the statement I made to Mr. Hayes, which he made a motion for mistrial on, and ask you not to give it any consideration in arriving at your verdict in this case."
In the colloquy between counsel and the court, counsel asked the court a question relating to an incidental matter. The court's answer was addressed to counsel and, although explanatory, was pertinent to the question propounded, and no reversible error appears. See, in this connection, Perry v. Butt, 14 Ga. 699, 705 (2); Crawford v. State, 4 Ga. App. 789 (6) (62 S. E. 501); Bass v. State, 4 Ga. App. 844 (2) (62 S. E. 540); Jones v. Pope, 7 Ga. App. 538, 540 (67 S. E. 280).
*620 2. The accusation charging lottery was in five counts. The court directed a verdict on counts 3 and 4. The jury found the defendant guilty on count 2, and not guilty on counts 1 and 5. The accusation stated that the alleged date of the commission of the crime charged in each of the counts therein was an essential element of the crime charged in each count. It will be noted that the crime charged and on which the defendant was convicted was the one on October 25, 1949, in count 2. An officer testified that he had gone to arrest the defendant Hodges on November 7, 1947, in connection with the operation of a lottery known as the number game, at the Biltmore Hotel in Fulton County, Georgia; that on that occasion he and another officer went to the Biltmore Hotel and went up to a room where Mrs. Hodges, the defendant, and a Mr. Doremus were in the room together, and had "an adding machine, a quantity of lottery tickets, and tape." The defendant denied knowing anything about what was found in the room and said she was just called up there by a Mr. Doremus. The officer further testified that the room was registered in the name of Mr. Doremus of Tennessee. A case was made against the defendant and Mr. Doremus, but he jumped his bond and was never tried. She was tried and acquitted. The court allowed in evidence the adding machine, the lottery tickets and tape, all of which paraphernalia are used in the number game, over the objection of the defendant that they were irrelevant and prejudicial to the defendant, and further that she had already been tried and acquitted of this crime. In Taylor v. State, 174 Ga. 52, 67 (162 S. E. 504), it was said: "Nor is the contention sound that this evidence should have been ruled out because it relates to other alleged offenses for which this defendant had been previously tried and acquitted. While the defendant had been tried and acquitted of previous alleged offenses, and the verdict of not guilty may have indicated that there was not sufficient evidence to convince the jury beyond a reasonable doubt of his guilt, still that acquittal would not necessarily exclude the evidence, because that evidence may tend to illustrate the acts of the defendant as shown in the transaction for which he is now on trial, and may be considered in connection with the later evidence, and may throw a flood of light on this later evidence, though of itself insufficient to authorize *621 a verdict of guilty." See cases cited. The State introduced accusations charging the defendant with playing the lottery number game in 1941 and 1942, upon each of which there was a verdict of guilty. A Mrs. Lee testified that she was an accomplice of the defendant in playing the lottery games charged in such accusations, and that she was also found guilty as a participant in such lottery games in 1941 and 1942. It will be again noted that, as stated above, the defendant was found in the room in the Biltmore Hotel with Mr. Doremus in 1947, and lottery paraphernalia were found there. Mrs. Lee testified that she was an accomplice of the defendant in 1941 and 1942 in the lottery business. She likewise testified that she was the defendant's accomplice on October 25, 1950, the alleged date of the crime for which the defendant was found guilty in the instant case; and also testified that she was an accomplice during the entire month of October, 1950, except on Sundays and holidays, on which the lottery did not function, and she specifically testified that she was such on October 3, 1950. Under the facts of this case we think that it was competent to show similar lotteries which were operated according to a similar plan, that is, by drawing numbers, etc., in the same county, in order to show a general plan to amass property by an unlawful scheme and fraud. It was well said in Lee v. Miami, 121 Fla. 93 (163 So. 486, 101 A. L. R. 1115): "Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community; it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; and it plunders the ignorant and simple." It is also conducive to the corruption of public officers, and what is quoted above is particularly applicable to a lottery known as the number game. The form of lottery described in the evidence in this case as a number game is a scheme and device to ensnare the public regardless of age, class, or station. In Henderson v. State, 95 Ga. 326, 328 (22 S. E. 537), it seems that the Supreme Court of this State recognized a substantial distinction between lotteries and offenses of gaming proper, and that it was the purpose of the lottery statute to "suppress lotteries," recognizing that this plan or *622 scheme known as lottery is a general plan or scheme to amass property by fraud, and that this widespread, baneful influence infests the whole community.
The evidence of former similar transactions, criminal or otherwise, here in question was admissible to show the general plan that the defendant was using in amassing property by fraud. It tended to illustrate, characterize, and explain the acts in the instant case as being a part of such general plan to so amass property by fraud. It was also admissible, under the facts of this case, to rebut the defendant's contention to the jury that she did not know that the lottery paraphernalia were in the room in question, which was rented by her on the occasion in question. See, in this connection, Williams v. State, 62 Ga. App. 679, 681 (9 S. E. 697); Thrasher v. State, 68 Ga. App. 820, 823 (24 S. E. 222); Walker v. State, 69 Ga. App. 375, 376 (25 S. E. 587); Suber v. State, 176 Ga. 525, 532 (168 S. E. 585); Bacon v. State, post, p. 630 (70 S. E. 2d, 54); Mason v. State, 42 Ala. 532, 539. The purpose for which such evidence could be considered was properly restricted by the trial judge in his charge to the jury.
3. Three witnesses testified directly that they participated with the defendant in the running of the number game, on October 25, 1949, for which the defendant was here found guilty. There was also circumstantial evidence to show her guilt of such crime. The evidence authorized the verdict.
Judgment affirmed. Sutton, C. J., Gardner and Worrill, JJ., concur. Felton and Townsend, JJ., dissent.
TOWNSEND, J., dissenting. 1. A remark by the trial court which supplies as evidence a fact not in the record is, if prejudicial, cause for a new trial. Phillips v. State, 18 Ga. App. 109 (2) (88 S. E. 905). In this case it is the opinion of the writer that the remark by the trial court, that "it is not customary to prosecute the man on that offense if the court uses it for revocation of the suspended sentence," constitutes such a remark. It was material, in that it entirely nullified the attack on the credibility of the witness, which was attempted by showing on cross-examination that he had not been prosecuted for the new offense. Such testimony might have been offered by the State, and what was customary in this respect is a question of fact *623 and not one of law. The remark was prejudicial and in the opinion of the writer demands reversal.
2. Error is also assigned on the admission in evidence of an accusation charging the defendant with the offense of lottery on October 15, 1942, eight years previously, together with her plea of not guilty and conviction by the jury dated January 26, 1943.
It is axiomatic that the general character of the defendant and his character in other transactions is irrelevant unless the defendant chooses to put his character in issue. Code, §§ 38-201, 38-202; Green v. State, 172 Ga. 635 (158 S. E. 285); Hunter v. State, 188 Ga. 215 (3 S. E. 2d, 729); Ward v. State, 14 Ga. App. 110 (80 S. E. 295); Davis v. State, 60 Ga. App. 772 (5 S. E. 2d, 89). It is equally axiomatic that, where such evidence is erroneously admitted, it is prejudicial to the defendant and demands the grant of a new trial. Bryant v. State, 65 Ga. App. 523 (16 S. E. 2d, 241); Robinson v. State, 62 Ga. App. 355 (7 S. E. 2d, 758). "The general rule is, that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible." Williams v. State, 152 Ga. 498 (110 S. E. 286); Cawthon v. State, 119 Ga. 395 (4) (46 S. E. 897); Frank v. State, 141 Ga. 243 (80 S. E. 1016); Bates v. State, 18 Ga. App. 718 (90 S. E. 481).
This rule has various exceptions. Such evidence is admissible where the defendant himself has put his character in issue. Spear v. State, 51 Ga. App. 29 (179 S. E. 417). It is admissible where the other criminal transaction is part of the res gestae. Hill v. State, 161 Ga. 188 (129 S. E. 647); Swain v. State, 162 Ga. 777 (135 S. E. 187); Bradberry v. State, 170 Ga. 859 (154 S. E. 344); Randall v. State, 176 Ga. 897 (169 S. E. 103); Reed v. State, 197 Ga. 418 (6) (29 S. E. 2d, 505); Hill v. State, 201 Ga. 300 (39 S. E. 2d, 675); Hall v. State, 7 Ga. App. 115 (6) (66 S. E. 390). Previous attempts to commit the same crime may be shown. Wright v. State, 184 Ga. 62 (190 S. E. 663). It is admissible to rebut testimony of witnesses put up by the defendant, or to show that such witnesses' testimony was the result of bias, duress, or the like, and also to rebut statements *624 made by the defendant. Carrigan v. State, 206 Ga. 707 (5) (58 S. E. 2d, 407); Kimbrough v. State, 9 Ga. App. 301 (70 S. E. 1127); Demons v. State, 17 Ga. App. 480 (1) (87 S. E. 690); Thrasher v. State, 68 Ga. App. 820 (3) (24 S. E. 2d, 222). Under certain circumstances evidence of collateral offenses may be used to show the mental processes of the accused. See Wharton, Criminal Evidence, Vol. VI, § 345. Where intent is the gist of the offense, similar offenses perpetrated by the defendant may be relevant to show intent. Farmer v. State, 100 Ga. 41 (28 S. E. 26); Jeffords v. State, 162 Ga. 573 (134 S. E. 169); Brookins v. State, 167 Ga. 325 (1) (145 S. E. 449); Taylor v. State, 174 Ga. 52 (162 S. E. 504); Castleberry v. State, 178 Ga. 663 (173 S. E. 833); Simmons v. State, 196 Ga. 395 (26 S. E. 2d, 785); Shafer v. State, 191 Ga. 722 (13 S. E. 2d, 798); Honea v. State, 181 Ga. 40 (1) (181 S. E. 416); Biegun v. State, 206 Ga. 618 (1) (58 S. E. 2d, 149); McCrory v. State, 11 Ga. App. 787 (5) (76 S. E. 163); Martin v. State, 10 Ga. App. 795 (2) (74 S. E. 304); Wyatt v. State, 16 Ga. App. 817 (3) (81 S. E. 802); McDuffie v. State, 17 Ga. App. 342 (5) (86 S. E. 821); Goldberg v. State, 20 Ga. App. 162 (2) (92 S. E. 957); Green v. State, 35 Ga. App. 500 (133 S. E. 877); Terry v. State, 36 Ga. App. 305 (136 S. E. 476); Cook v. State, 33 Ga. App. 571 (127 S. E. 156); Fitzgerald v. State, 51 Ga. App. 636 (1) (181 S. E. 186). Similarly, it may show guilty knowledge, or lack of accident or mistake, as where the act itself is capable of more than one construction and so might be consistent with either guilt or innocence. Cooper v. State, 182 Ga. 42 (3) (184 S. E. 716, 104 A. L. R. 1309); Simmons v. State, supra; McCrory v. State, 11 Ga. App. 787 (5) (76 S. E. 163); Martin v. State, supra; Bates v. State, supra; Terry v. State, supra; Williams v. State, 62 Ga. App. 679 (2) (9 S. E. 2d, 697). Evidence of similar offenses may be used to prove motive. Jones v. State, 63 Ga. 395 (3); Farmer v. State, supra; Shaw v. State, 102 Ga. 660 (7) (29 S. E. 477); Sullivan v. State, 121 Ga. 183 (1) (48 S. E. 949); Williams v. State, 152 Ga. 498 (1) (110 S. E. 286); Manning v. State, 153 Ga. 184 (3) (111 S. E. 658); Gore v. State, 162 Ga. 267 (134 S. E. 36); Jeffords v. State, 162 Ga. 573 (134 S. E. 169); Brookins v. State, 167 Ga. 325 (1) (145 S. E. 449); Sligh v. State, 171 Ga. 92 (8) (154 S. E. 799); Suber v. State, 176 Ga. 525 (168 S. E. 585); *625 Castleberry v. State, supra; Wheeler v. State, 179 Ga. 287 (1) (175 S. E. 540); Wright v. State, supra; Black v. State, 187 Ga. 136 (4) (199 S. E. 810); Hunter v. State, 188 Ga. 215 (2) (3 S. E. 2d, 729); Loughridge v. State, 201 Ga. 513 (3) (40 S. E. 2d, 544); Gossett v. State, 203 Ga. 692 (3b) (48 S. E. 2d, 71); Carrigan v. State, 206 Ga. 707 (5) (58 S. E. 2d, 407). Such offenses may prove identity, as where proof that the same plan, scheme or device previously employed by the defendant is also employed on the occasion in question. Hill v. State, supra; Merritt v. State, 168 Ga. 753 (1) (149 S. E. 46); Green v. State, 172 Ga. 635 (3) (158 S. E. 285); Haden v. State, 176 Ga. 304 (7) (168 S. E. 272); Gibson v. State, 178 Ga. 707 (174 S. E. 354); Burden v. State, 182 Ga. 533 (186 S. E. 555); Sisk v. State, 182 Ga. 448 (1) (185 S. E. 777); Barkley v. State, 190 Ga. 641 (10 S. E. 2d, 32); Fuller v. State, 197 Ga. 714 (1) (30 S. E. 2d, 608); Fuller v. State, 196 Ga. 237 (1) (26 S. E. 2d, 281); Hill v. State, 201 Ga. 300 (39 S. E. 2d, 675); Biegun v. State, supra. The testimony is also admissible to show a course of conduct pointing toward and leading to the crime, as where there exists in the mind of the actor some connection linking the acts together for a purpose which he intends to accomplish, a method, scheme, or system employed by the defendant, or where the separate acts are acts of co-conspirators, the conspiracy having been proved, or where the previous criminal act shows a state of mind influencing a course of conduct, such as premeditation or malice. Taylor v. State, 110 Ga. 150 (4) (35 S. E. 161); Sullivan v. State, 121 Ga. 183 (1) (48 S. E. 949); Burgess v. State, 93 Ga. 304 (4) (20 S. E. 331); Frank v. State, 141 Ga. 243 (2) (80 S. E. 1016); Williams v. State, supra, Manning v. State, supra; Fairfield v. State, supra; Saunders v. State, 172 Ga. 770 (158 S. E. 791); Sligh v. State, supra; Wilson v. State, 173 Ga. 275 (2) (160 S. E. 319); Taylor v. State, supra; Morris v. State, 177 Ga. 106 (169 S. E. 495); Tucker v. State, 180 Ga. 87 (178 S. E. 152); Loughridge v. State, 181 Ga. 261 (182 S. E. 12); Cooper v. State, supra; Sisk v. State, supra; Goodman v. State, 184 Ga. 315 (1) (191 S. E. 117); Hunter v. State, supra; Barkley v. State, supra; Shafer v. State, supra; Honea v. State, supra; Emmett v. State, 195 Ga. 517 (3) (25 S. E. 2d, 9); Fuller v. State, supra; Allen v. State, 201 Ga. 391 *626 (40 S. E. 2d, 144); Gossett v. State, supra; Dorsey v. State, 204 Ga. 345 (2) (49 S. E. 2d, 886); Bates v. State, supra; Griffin v. State, 18 Ga. App. 462 (1) (89 S. E. 537); Goldberg v. State, supra; Green v. State, supra; Nelson v. State, 51 Ga. App. 207 (1) (180 S. E. 16); Scoggins v. State, 62 Ga. App. 489 (8 S. E. 2d, 709); Hall v. State, 64 Ga. App. 644 (2) (13 S. E. 2d, 868). The relationship should be such that proof of one offense tends to establish the other. Cole v. State, 120 Ga. 485 (1) (48 S. E. 156); Ray v. State, 4 Ga. App. 67 (3) (60 S. E. 816); Thompson v. State, 4 Ga. App. 649 (4) (62 S. E. 99). If the collateral offense is too remote in point of time, it is thereby rendered inadmissible. Daniel v. State, 103 Ga. 202 (3) (29 S. E. 767); Clarke v. State, 5 Ga. App. 93 (2) (62 S. E. 663); Palmer v. State, 75 Ga. App. 789 (44 S. E. 2d, 567).
Admission into evidence of collateral offenses which do not fall within one or more of the foregoing exceptions to the general rule is error requiring reversal. Whilden v. State, 25 Ga. 396 (71 Am. D. 181); Cawthon v. State, supra; Alsobrook v. State, 126 Ga. 100 (3) (54 S. E. 805); Gay v. State, 115 Ga. 204 (41 S. E. 685); Bashinski v. State, 123 Ga. 508 (4) (51 S. E. 499); Daniel v. State, supra; Fountain v. State, 149 Ga. 519 (5) (101 S. E. 294); Booth v. State, 160 Ga. 271 (127 S. E. 733); Cox v. State, 165 Ga. 145 (1) (139 S. E. 861); Lanier v. State, 187 Ga. 534 (1 S. E. 2d, 405); Anderson v. State, 206 Ga. 527 (57 S. E. 2d, 563); Holmes v. State, 12 Ga. App. 359 (2) (77 S. E. 187); Shealey v. State, 16 Ga. App. 191 (84 S. E. 839); Clarke v. State, supra; Cooper v. State, 13 Ga. App. 697 (2) (79 S. E. 908); Livingston v. State, 17 Ga. App. 136 (2) (86 S. E. 449); Grace v. State, 19 Ga. App. 606 (92 S. E. 231); Williams v. State, 51 Ga. App. 319 (180 S. E. 369); Robinson v. State, 62 Ga. App. 355 (7 S. E. 2d, 758); Palmer v. State, supra.
It is contended that the record of the previous conviction for a crime of the same sort as that for which the defendant was on trial was admissible as revealing the plan, scheme, or system which the defendant was using in playing the lottery game here charged in the indictment. The certified copy of the prior accusation introduced in evidence was unaccompanied by other testimony and shows merely that the defendant was charged with the offense of maintaining a lottery known as the number game *627 and convicted thereof. Therefore, it cannot show plan, scheme, or system unless the fact that one has been previously convicted of a certain type of crime may be considered as evidence that one is more likely to commit that type of crime again in other words, to show criminal "bent of mind." But this is the precise reason for excluding such testimony. Lee v. State, 8 Ga. App. 413 (1) (69 S. E. 310); Booth v. State, 160 Ga. 271, 280 (127 S. E. 733). On an indictment for renting a room for gaming, admission in evidence of a prior conviction of a similar offense is reversible error, "as giving the jury an opportunity to infer that the accused is a persistent violator of the law against gaming, and is in all likelihood guilty of the specific charge then brought against him." Bashinski v. State, 123 Ga. 508 (4), supra. On the trial of an accusation of gaming, "it is error for the court to allow, over proper objection, evidence of a prior conviction of the defendant of the offense of keeping a gaming house." Grace v. State, 19 Ga. App. 606, supra. On a trial for maintaining a gaming house, it was error to admit testimony as to the defendant's reputation as a gambler. Peacock v. State, 38 Ga. App. 268 (143 S. E. 605). We therefore conclude that on a trial for maintaining a lottery it is error to admit over timely objection evidence that the defendant was on a prior occasion convicted of the same offense, particularly in view of the fact that the conviction failed to show any method, scheme, plan, or device of conducting the lottery, nor was any testimony linking the modus operandi on the two occasions introduced.
It will also be noted that the majority opinion points out that the evidence of an officer that the defendant committed acts constituting the offense of lottery on November 7, 1947, was admissible notwithstanding the fact that she had been acquitted of this offense. That such evidence is not inadmissible for the reason that there was a subsequent acquittal, is well settled. See Lee v. State, 8 Ga. App. 413, supra; Taylor v. State, 174 Ga. 52, 67 (162 S. E. 504). By these decisions it is therefore held that acquittal is not sufficient to establish innocence. The majority opinion, notwithstanding this rule of evidence, holds that an accusation filed on October 15, 1942, together with a plea of not guilty and a conviction based thereon on January 6, 1943, is admissible to establish guilt. Accordingly, it is *628 established by the majority opinion that, while a verdict of not guilty will not establish innocence, yet a verdict of guilty will establish guilt. This is held notwithstanding the decision of the Supreme Court of this State in Gay v. State, 115 Ga. 204 (41 S. E. 685), which held in substance that, where facts constituting a crime for which the defendant on trial had previously been convicted become material and are admissible in the case on trial, such facts cannot be established by the introduction in evidence of the conviction. In this connection the Supreme Court said: "The correctness of what is above laid down is too obvious and too well settled, both upon principle and authority, to require further discussion." It is contrary to the writer's conception of simple justice to establish one rule of evidence as being applicable to the defendant and the exact antithesis thereof as being applicable to the State, to the detriment of the defendant.
For the foregoing reason, together with the fact that the relationship between the crime of 1942 and the crime for which the defendant was on trial here is not such that proof of the one offense tends to establish the other, and because the collateral offense is too remote in point of time, it is the opinion of the writer that the admission of this evidence was such harmful error as to require a reversal.
I am authorized to say that Felton, J., concurs in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319572/ | 210 Ga. 190 (1953)
78 S.E.2d 422
CONYERS
v.
WEST et al.
18370.
Supreme Court of Georgia.
Argued October 14, 1953.
Decided November 12, 1953.
*191 Mitchell & Mitchell, for plaintiff in error.
Geo. Starr Peck, Harold Sheats, Wm. G. Grant, Grant, Wiggins, Grizzard & Smith, J. C. Savage, contra.
ALMAND, Justice.
John L. Conyers filed an application against Thomas B. West and others, to register title to a tract of land. The case was referred to an examiner, who made a report in favor of the applicant for registration, and West filed exceptions of law and fact to this report. One of the exceptions of law was to the ruling of the examiner in overruling objections to the introduction in evidence of a tax deed executed to the City of Atlanta dated May 29, 1937, on the ground that the description was too vague and indefinite to operate as a valid conveyance to the city, and in admitting this deed in evidence. This deed gave the description of the property as follows: "A certain lot of land . . . lying and being in the City of Atlanta, State and County aforesaid, in Tax District No. 1-A, Land Lot 47 in the 14th District of . . . Fulton County, Georgia, fronting 265 feet on the south side of Angier Avenue, between Bedford and Felton Streets, and running back 368 feet, more or less, in a southerly direction. The house on said lot is known as No.____ on said street according to street numbers. The same being vacant property in the City of Atlanta adjoining Deraney." Other exceptions of West to the findings of the examiner were sustained. The trial judge in sustaining these exceptions held that the tax deed under which Conyers based his claim of title to the property sought to be registered was void and no title passed thereunder, because the description therein was too vague and indefinite to identify and make it possible to locate the property sought to be conveyed even by resort to extrinsic evidence, had such evidence been introduced to identify the property, and decreed that the title to the property was in Thomas B. West, subject to certain liens and encumbrances. Conyer's bill of exceptions assigns error on this decree. Counsel for the plaintiff in error concede that the sole question for review is whether or not the description in the tax deed to the City of Atlanta is sufficient to describe the land sought to be registered.
A deed wherein the description of the property sought to be conveyed is so vague and indefinite as to afford no means of *192 identifying any particular tract of land is inoperative either as a conveyance of title or as color of title. Mull v. Allen, 202 Ga. 176 (42 S. E. 2d 360). A description of land in a deed, in order to be valid, must identify the land, or must contain a key by the use of which the description may be supplied by extrinsic evidence. Blumberg v. Nathan, 190 Ga. 64 (8 S. E. 2d 374). The only definite information in the deed involved in the instant case was that the land was located in the City of Atlanta, in land lot 47 in the 14th district of Fulton County, and fronted 265 feet on the south side of Angier Avenue between Bedford and Fulton Streets. The description does not state the beginning point of this frontage. It recites that the lot runs back 368 feet more or less in a southerly direction, and the words "more or less" fix no point for the rear line of the property, nor the width of the same. The fact that it is vacant property adjoining Deraney does not provide a key for the location of the land. The word "Deraney" may refer to a street, or to the name of an adjoining property owner, and might be either on the east or the west side. There is nothing in this description to enable anyone to definitely locate the property sought to be described. There is nothing in the tax deed to the City of Atlanta that refers to any map or other matter upon which extrinsic evidence might be introduced to aid in the location of the property. The trial judge did not err in sustaining the exceptions to the ruling of the auditor in the admission of this deed, or in his finding that conyers did not have title to the property.
Counsel for West filed a motion in this court to overrule the case of Shore v. Miller, 80 Ga. 93 (4 S. E. 561, 12 Am. St. Rep. 239). We are of the opinion that it is not necessary to a decision in the instant case to review the Shore case. As that case is explained in Huntress v. Portwood, 116 Ga. 351 (42 S. E. 513), the ruling in the Shore case is not authority to sustain the contention of Conyers, that the description in the deed under which he claims was sufficient.
The court did not err in entering the decree that the title to the land be registered in Thomas B. West, as complained of in the bill of exceptions.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319666/ | 109 Ga. App. 92 (1964)
135 S.E.2d 445
LAMEX, INC.
v.
STERLING EXTRUDER CORPORATION.
40337.
Court of Appeals of Georgia.
Decided February 5, 1964.
*93 Albert E. Mayer, for plaintiff in error.
Sutherland, Asbill & Brennan, James P. Groton, contra.
BELL, Presiding Judge.
1. The tenor of our summary judgment procedure is that it deals with the merits of an issue; and that if granted in favor of a claimant it affirmatively adjudges the merits of the claim, and if in favor of the defendant the judgment is in bar and not in abatement. Because of the general tendency to view a summary judgment in that fashion, we wish to make it clear that we do not accept the motion before us as being one for a summary judgment in the common sense nor do we consider the judgment on the motion rendered by the trial court as the grant in that perception of a motion for summary judgment. Although each of the parties and their counsel, together with the trial judge, seem to call the thing a motion for summary judgment, we are not at all interested in its nomenclature but accept it for what we think it is, i.e., a motion by whatever appellation called which is sufficient in its substance to have brought into the hearing on it the clearcut issue raised by the plea to the jurisdiction and that issue only. Therefore, both the judgment of the trial court and the judgment of affirmance of that judgment by this court only adjudicate the one point that the defendant is not doing business in Georgia and for that reason is not subject to the jurisdiction of the courts of our State.
2. Personal jurisdiction of Georgia courts over a foreign corporation is not secured by personal service on the defendant's president while he is sojourning in Georgia, whether he came voluntarily or was lured into the State under false pretenses, as defendant contends.
*94 "It is essential to a legal rendition of a personal judgment against a foreign corporation, otherwise than by its voluntary appearance that the corporation be doing business within this State in such a manner and to such an extent as to warrant the inference that it is present in the State. Vicksburg, Shreveport & Pacific R. v. DeBow, 148 Ga. 738 (1) (98 SE 381); Southeastern Distributing Co. v. Nordyke & Marmon Co., 159 Ga. 150, 157 (125 SE 171)." Sterling Materials Co. v. McKinley, 218 Ga. 574 (129 SE2d 770). See also Code Ann. § 22-1507.
The question of jurisdiction consequent upon doing business in the State is primarily determined by Georgia law; Federal law related to due process or the interstate commerce clause is not applicable unless the foreign corporation pleads that the assertion of jurisdiction violates the Federal Constitution. Rosenthal v. Frankfort Distillers Corp., 193 F. 2d 137 (5th Cir.); Smith v. Ford Gum & Machine Co., 212 F. 2d 581 (5th Cir.); Georgia Lumber &c. Corp. v. Solem Machine Co., 150 F. Supp. 126, 130 (M.D. Ga. 1957).
Plaintiff contends that defendant's presence in Georgia during a two- or three-week period adjusting and modifying the machine in an effort to make it a workable installation constituted "doing business" in Georgia. Plaintiff contends further that its own president for a period of several days acted as agent for defendant in directing modifications of the die and that several local plants were directed by defendant to make these adjustments.
However, even if we agree arguendo, the acts performed were still part of a single transaction, namely attempts to make the extruding machine "a workable installation," and the time expended, if attributed to defendant, would not have extended defendant's presence in Georgia beyond three weeks, and is, therefore, nothing more than an isolated incident.
Plaintiff does not show that defendant made any other attempt to sell to any customer in Georgia or sought or received any income from Georgia. Its activities in the State were clearly limited to carrying out the terms of a contract negotiated and made in interstate commerce in Illinois and New Jersey with a third party, the Delta Company.
*95 In a recent Georgia income tax case expounding the law on "doing business" in Georgia, Redwine v. U. S. Tobacco Co., 209 Ga. 725, 728-729 (75 SE2d 556), the Supreme Court said: ". . . It seems to be rather well established by all the authorities that `doing business' in order to incur tax liability under statutes imposing taxes on persons `doing business' in a state means that a foreign corporation must transact some substantial part of its ordinary business, and that it must be continuous in character as distinguished from a mere casual or occasional transaction; that a single or several transactions is not necessarily conclusive on the question of whether the corporation is `doing business.' . .. The term `doing business' has been held to mean more than the term `transacting business.'"
In ruling on an individual's claim that he was not subject to the jurisdiction of the Texas courts, relying on the due process clause of the U. S. Constitution, this court stated, in Allied Finance Co. v. Prosser, 103 Ga. App. 538, 541 (119 SE2d 813): "We interpret `doing business' to mean the engagement for profit in some practice either repeatedly or possibly with the intention that the practice be repeated. To extend the term `doing business' to include the making of one contract with a resident of Texas as its act provides would render due process as it has applied to foreign individuals a complete nullity. . . . While the rule has understandably been stretched for reasons of public policy to include motorists statutes and insurance statutes . . . it is unthinkable that it should be expanded to cover the individual who enters into a single transaction with no intention of doing more."
More recently, the Georgia Supreme Court held, in Sterling Materials Co. v. McKinley, 218 Ga. 574, supra: "When the question is one of the jurisdiction of the courts of this State to render a personal judgment against a foreign corporation in an action brought with reference to a business transaction initiated by the taking of an order in Georgia by an agent of the corporation, the term `doing business' will not be extended to include a single, isolated business transaction but rather will be limited to the engagement for profit in some practice repeatedly *96 or with the intention that the practice be repeated. Allied Finance Co. v. Prosser, 103 Ga. App. 538, 541 (119 SE2d 813); 23 Am. Jur. 353-356, Foreign Corporations, § 370. See Redwine v. U. S. Tobacco Co., 209 Ga. 725, 728 (75 SE2d 556)."
In Georgia Lumber &c. Corp. v. Solem Machine Co., 150 F. Supp. 126, supra (a persuasive opinion by District Judge Bootle based on Georgia law where a diversity suit was removed from a Georgia court before the court ruled on plea to the jurisdiction), a foreign manufacturer of a complex sanding machine was sued by a Georgia customer for breach of warranties. The manufacturer had sold several machines to different Georgia companies through a manufacturer's agent residing in Atlanta. The manufacturer was obligated by contract with each purchase to inspect the machine after installation, to demonstrate its operation and to instruct the buyer's employees how to operate it. The manufacturer made a practice of furnishing repair service at nominal charges as an accommodation to the customers. The evidence showed that the manufacturer's serviceman had spent 32 days in this State working on machines defendant sold to plaintiff and its other customers in Georgia. Judge Bootle held that under Georgia cases the demonstrator's subsequent visits into the State in reference to plaintiff's complaints were made at the insistence of the plaintiff and did not constitute activities for the purpose of making a profit, within the meaning of Redwine v. U. S. Tobacco Co., 209 Ga. 725, supra. The defendant was held not to have been "doing business" in Georgia.
The plaintiff places great emphasis on the fact that the machinery involved in this case was expensive, complex and partially experimental and that the defendant made modifications and adjustments rather than mere repairs. These factors do not remove the original sales contract from interstate commerce, however. In York Mfg. Co. v. Colley, 247 U. S. 21, 25 (38 SC 430, 62 LE 963, 11 ALR 611), involving a four-week installation and testing of an ice plant, the United States Supreme Court in finding that York was not "doing business" in Texas stated that: "The only possible question open, therefore, is, Was the particular provision of the contract for the service of an engineer to assemble and erect the machinery in *97 question at the point of destination and to practically test its efficiency before complete delivery relevant and appropriate to the interstate sale of the machinery? When the controversy is thus brought in last analysis to this issue there would seem to be no room for any but an affirmative answer. Generically this must be unless it can be said that an agreement to direct the assembling and supervision of machinery whose intrinsic value largely depends upon its being united and made operative as a whole is not appropriate to its sale. The consequences of such a ruling, if made in this case, would be particularly emphasized by a consideration of the functions of the machinery composing the plant which was sold, of its complexity, of the necessity of its aggregation and unison with mechanical skill and precision in order that the result of the contract of sale the ice plant purchased might come into existence."
This decision was followed in City of Atlanta v. York Mfg. Co., 155 Ga. 33 (116 SE 195) which involved essentially the same set of facts, i.e., the status of a foreign corporation selling and installing ice plants in Georgia.
Note that in these installation cases the plants had been purchased by the Georgia customers from the foreign corporation being sued as "doing business" in the State. There was a direct contractual relationship with, and income derived from, a resident of the state where the suit was brought. Furthermore, in each of these cases the foreign corporation undertook to perform the complete installation of the machine as a regular part of its method of doing business. In the case before us: no part of the contract of sale of the machine took place in Georgia; Sterling did not sell directly to a Georgia resident; it did no soliciting or selling in Georgia; and derived no income from this State. It did not install the machine, but only came in later to perform adjustments or modifications needed to make the machine work. On the basis of these authorities, Sterling's activities did not constitute "doing business" in Georgia, and it is not subject to the jurisdiction of Georgia courts. There is nothing in any of the three foreign cases relied upon by plaintiff to suggest persuasively that we should stray from the rules previously laid down by our own courts in similar cases.
*98 The judgment of the trial court finding in effect that the defendant was not doing business in Georgia and for that reason was not subject to the jurisdiction of this State's courts is affirmed.
Judgment affirmed. Hall and Pannell, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319801/ | 244 S.C. 79 (1964)
135 S.E.2d 613
SOUTH CAROLINA ELECTRIC & GAS COMPANY, Respondent,
v.
UTILITIES CONSTRUCTION COMPANY, Appellant.
18188
Supreme Court of South Carolina.
March 26, 1964.
*80 Messrs. Nelson, Mullins, Grier & Scarborough, of Columbia, for Appellant.
*81 Messrs. Arthur M. Williams, Jr., Cooper, Gary, Nexsen & Pruet, Frank B. Gary and Harold W. Jacobs, all of Columbia, for Respondent.
Messrs Nelson, Mullins, Grier & Scarborough, of Columbia, for Appellant, in Reply.
*82 March 26, 1964.
BUSSEY, Justice.
In this action the plaintiff-respondent seeks to recover by way of indemnity, the sum of $39,000.00, interest and costs from the defendant-appellant. The controversy arose out of the following facts:
The Town of Holly Hill passed an ordinance which granted the plaintiff the electric franchise for that community. The portions of this ordinance pertinent to this controversy read as follows:
"Section 3. The poles, towers, conduits, cables, conductors, transforming stations, fittings, appliances and appurtenances shall be so constructed as not to unreasonably interfere with the proper use of the streets, avenues, alleys, ways, bridges and public places in said Town of Holly Hill and shall be maintained in a reasonably good condition and repair.
"Section 4. Whenever the Grantee shall cause any opening or alteration to be made in any of the streets, avenues, alleys, ways, bridges, or public places of said Town of Holly Hill for the purpose of installing, maintaining, operating or repairing any poles, towers, conduits, cables and other appliances, the work shall be completed within a reasonable time and the Grantee shall upon completion of such work restore such portion of the streets, avenues, alleys, ways, *83 bridges or other public places to as good condition as it was before the opening or alterations so made.
"Section 5. The Grantee shall hold said Town of Holly Hill harmless from any and all liability or damages resulting from the negligence of the Grantee in the construction, maintenance or operation of said poles, towers, conduits, wires, cables and other appliances."
Subsequently, on November 9, 1953, the plaintiff and the defendant entered into a written contract under which the defendant agreed to perform certain work assigned to it by the plaintiff, consisting of the construction and maintenance of transmission and distribution lines. This contract was prepared by plaintiff, or its counsel, and provided, inter alia, that the defendant would work as an independent contractor and not as an agent or employee of the plaintiff; that all work performed by the defendant would be done in a good, proper and workmanlike manner; and contained the following indemnity clause:
"(e) The Contractor hereby agrees to indemnify and to hold the Company harmless from any and all claims for damages to persons and/or property arising out of or in any way connected with the performance of any work covered by this contract."
In February 1955, while the aforesaid contract was in force between the parties, and pursuant thereto, plaintiff gave the defendant a work order which required defendant to remove an old pole and install a new fifty foot pole, and put two cross arms on its and a gang switch install light fixtures and some wire attachments and patch the sidewalk. The pole in question was located near the curb on Main Street in the Town of Holly Hill. The work was completed and accepted by the plaintiff in February 1955. The defendant, unknown to the plaintiff, improperly performed the work of repairing the sidewalk, in a manner which will be later herein more fully described. As a consequence thereof, a depression gradually developed in the patched area of the sidewalk *84 as a result of the defective workmanship and, on June 20, 1959, a Mrs. Brant, a resident of Holly Hill, stepped into the depression, fell and was severely injured. The depression had existed for some time prior to the date of Mrs. Brant's injury.
Thereafter, Mrs. Brant brought suit against the plaintiff and the defendant for the damages caused by the injuries sustained. The plaintiff then made demand upon the defendant to take over the defense of the case on the ground that it was entitled to be indemnified by the defendant, both by reason of the express indemnity provision of the contract and a contract of indemnity implied by law. The defendant denied that it was liable either to the plaintiff or Mrs. Brant and consequently refused to do so. The parties, however, did enter into a stipulation under which, without prejudice to either, the plaintiff could settle Mrs. Brant's case for $36,000.00, and institute such action under its indemnity agreement, or otherwise, as it might be advised to recover from the defendant. The plaintiff then settled with Mrs. Brant for the sum of $36,000.00 and in this action seeks to recover that amount plus interest and the sum of $3,000.00 in attorneys fees. No issue as to the reasonableness of either the settlement figure or the amount of attorneys fees is here involved, nor is it contended that said amounts would not bear interest if the defendant be liable at all.
The plaintiff sought to recover under both the express indemnity agreement and on the theory of an indemnity agreement implied by law. The defendant by answer denied that it was liable under either theory.
The case was referred by consent to the Honorable Harry M. Lightsey, Master in Equity for Richland County, who, after taking testimony, filed his report therein and recommended that plaintiff have judgment under both theories against the defendant in the full amount demanded. The circuit judge, upon hearing exceptions of the defendant to the master's report, confirmed and adopted the factual findings *85 of the master and held that the plaintiff was entitled to indemnification by the defendant by reason of the express contract of indemnity and ordered judgment for the full amount prayed for. The circuit judge did not pass on exceptions to the master's report with respect to the finding that the defendant was also liable to the plaintiff under a contract of indemnity implied by law. On appeal, defendant contends that the circuit judge erred in holding plaintiff entitled to recover under the express contract of indemnity, but raises no question as to the amount of the recovery, if plaintiff be entitled to recover. The plaintiff urges as an additional sustaining ground that it is also entitled to recover by reason of a contract of indemnity implied by law.
The facts and circumstances surrounding the repair of the sidewalk by the defendant, as found by the master, confirmed by the circuit judge, and not excepted to, were as follows:
The defendant had to make an opening in the concrete sidewalk which was four to five inches thick, immediately adjacent to the old pole; dig a hole and insert a new pole. It then had to remove the old pole, fill in the hole from which it was taken and repair the sidewalk. The defendant filled the area of the sidewalk necessary to be repaired with soil to within one and a quarter to one and three-quarters inches of the sidewalk surface. It then filled in the remaining void with a mortar patch which consisted of one part cement and seven parts topsoil taken from an adjacent alley.
The workmanship was inferior and the topsoil taken from the alley unsuitable as a mixing agent, producing a mortar of a very low adhesive quality, entirely unsuited for sidewalk purposes. Such, however, could not have been determined from a visual inspection by other than a concrete expert at the time of inspection and acceptance by the plaintiff. (It is not contended here that plaintiff did not make a proper and adequate inspection.) A normal sidewalk mixture consists of one part cement, two parts builders sand, and four parts gravel, which after being soaked for twenty-four to forty-eight *86 hours should withstand fifty tons of pressure. To quote in part from the master's report:
"The low percentage of cement, the organic material in the topsoil mixed with it, and the excessive water necessary to obtain the proper consistency as used by the Defendant, on the other hand, created a mortar which, even when dry, easily crumbled under thumb pressure. As a result, normal foot traffic, over the years, gradually eroded the patched surface. In addition, there was apparently some settling of the soil underneath the patch by reason of improper tamping, which, coupled with the reduced strength of the patched area because of its thinness, further aggravated the defect."
Upon completion of the work, from all visual appearances, the same appeared to have been done in a proper and workmanlike manner, and so appeared to the plaintiff's employee who inspected and accepted the same. The evidence before the master from several witnesses reflected that the depression in the sidewalk was noticeable or observable for quite some time, as much as a year, before Mrs. Brant's injury. These witnesses, for one reason or another, were unusually familiar with the immediate area of the depression. Two of them were ladies who had sprained their ankles by stepping in the depression, one such occurrence being about three weeks prior to the injury of Mrs. Brant, and the other being about a year prior thereto. It does not appear that either of these ladies notified either the Town of Holly Hill or the parties hereto of their respective experiences with the depression until after Mrs. Brant was seriously injured.
The location of the depression was diagonally across the street from the office of the plaintiff in the Town of Holly Hill, and not very far distant therefrom with the result that various employees of the plaintiff, including repairmen, had the same opportunity to observe the depression in the sidewalk which gradually occurred over a period of time, as did members of the public generally. On the other hand, it was found as a fact and not excepted to that the plaintiff had no *87 actual knowledge of either the depression, or the faulty workmanship which caused it prior to receiving a report of the injury to Mrs. Brant.
There is no issue involved here as to the liability of the plaintiff to Mrs. Brant for her injuries under the terms of the franchise ordinance under which plaintiff was operating. The defendant simply and only contends that it is not liable to reimburse the plaintiff by virtue of either the express indemnity contract or a contract of indemnity implied by law. One of the principal contentions of the defendant is that a contract of indemnity does not bind the indemnitor to indemnify the indemnitee against liability incurred in whole or in part by negligence of the indemnitee, unless the contract of indemnity so expressly provides, citing, among other authorities, Murray v. Texas Co., 172 S.C. 399, 174 S.E. 231. It is further contended that under the evidence here the plaintiff was negligent in failing to discover and correct the depression in the sidewalk, caused by the defendant's negligence, long before the injury to Mrs. Brant, and that such negligence on the part of the plaintiff relieved the defendant, as a matter of law, of any obligation to indemnify under its contract or otherwise.
This case was heard by both the master and circuit judge before the decision of this court in Atlantic Coast Line R. Co. v. Whetstone, 243 S.C. 61, 132 S.E. (2d) 172. As pointed out in the dissenting opinion in that case, there is substantial authority for the proposition that where the only delict of one joint tortfeasor is the failure to discover or correct a defect or dangerous condition caused by the negligence of his joint tortfeasor, the failure to discover the defect constitutes only passive negligence as opposed to active negligence on the part of the one who created the condition, and that the one guilty of only passive negligence can recover indemnity from the one guilty of active negligence. The majority opinion in that case, however, rejected the theory of the distinction between passive and active negligence, at least *88 in cases where there was no contractual or legal relationship between the joint tortfeasors.
Since the master and the circuit judge did not have the benefit of the Whetstone decision, it is not surprising that the report of the master and the decree of the circuit judge both discussed the distinction between "active" and "passive" negligence and referred to any negligence on the part of the plaintiff here as being "passive" as opposed to the "active" negligence of the defendant. The briefs of counsel also contain a discussion of such distinction as well as argument as to the effect on the instant case of the Whetstone case, the opinion in which was filed before the briefs of counsel were completed.
In our view of the instant case, however, the decision in the Whetstone case is not at all controlling for the reasons hereinafter set forth. We are not even called upon to decide whether a distinction between "active" and "passive" negligence should, or should not, be recognized in a case where there is a contractual or legal relationship between two joint tortfeasors, the holding of that case going no further than that the distinction would not be recognized in a case where no legal relationship between joint tortfeasors existed.
Here the plaintiff was chargeable as a matter of law, by virtue of the franchise ordinance, with the negligence of the defendant in improperly repairing the sidewalk and failing to restore the same to its prior condition. We see no evidence in this case, however, of any other negligence on the part of the plaintiff. The breach of a legal duty is essential to negligence and such legal duty is that which the law requires to be done or forborne with respect to a particular individual or the public at large. Without a violation of such a legal duty, there is no negligence. Kershaw Motor Co. v. Southern R. Co., 136 S.C. 377, 134 S.E. 377, 47 A.L.R. 858.
Had the defendant properly performed its work and restored the sidewalk to its former condition, there would have been no legal duty upon either the plaintiff or the defendant *89 to inspect or maintain the sidewalk thereafter. We are not here concerned with the extent of the legal duty which would have arisen had the plaintiff had actual knowledge of the defective condition, since it is undisputed that the plaintiff did not have actual knowledge thereof. Neither are we necessarily concerned with the extent of the legal duty of the defendant owed to Mrs. Brant or other members of the public, the defendant having full knowledge of its delict and the inherently dangerous condition it had left in the sidewalk which it knew was constructed and maintained for the use of the public.
Since, however, the plaintiff had no knowledge, what was its duty, if any, to the public with respect to the inspection of the sidewalk from time to time and the correction of the condition caused solely and only by defendant's delict? It must be borne in mind that the plaintiff, certainly as far as the record here shows, endeavored to secure the services of a reliable and competent contractor to do the work, and, moreover, properly inspected said work before its acceptance. Having no knowledge of the defective condition created by the defendant and no reason to believe that the work had not been properly done, we know of no rule of law, and no authority has been cited to us, which would, under the circumstances, impose upon the plaintiff any legal duty to inspect the sidewalk in the Town of Holly Hill, from time to time, for the purpose of discovering a defect which it had no reason to believe existed.
Its duty, rather, was to restore the sidewalk to as good condition as it was before, and to do the work in a proper and careful manner. Hence, the only negligence chargeable to the plaintiff under the facts of this case was the negligence of the defendant itself, the plaintiff being cast in damages as a matter of law and made responsible for the acts of the defendant.
Had the defendant been merely an agent or servant of the plaintiff, as opposed to an independent contractor, and the plaintiff cast in damages solely as a result of the acts of the *90 agent, it is quite clear that the plaintiff could have recovered indemnity from the defendant without a contract of indemnity. Jenkins v. Southern R. Co., 130 S.C. 180, 125 S.E. 912; Bell v. Clinton Oil Mill, 129 S.C. 242, 124 S.E. 7; Ilderton v. Charleston Consol. Ry. & Lighting Co., 113 S.C. 91, 101 S.E. 282. We see no apparent reason why the basic rule of law would be any different because here the defendant happened to be an independent contractor rather than an employee, particularly since the indemnity contract bound the defendant to the very same liability imposed by law upon a mere employee. Indeed, it could well be argued that there is all the more reason for the application of the rule with respect to an independent contractor since an independent contractor is not subject to the same supervision and control as is an employee.
The only negligence of the plaintiff in this case being that of the defendant itself, hence, constructive negligence or negligence imputed by operation of law, we think it makes little difference whether the plaintiff's action was based on a legally imposed liability of the defendant or upon the express indemnity contract, as they both, under the facts of this case, imposed the same ultimate liability upon the defendant.
The defendant contends, among other things, that the indemnity contract having been prepared by the plaintiff, it should be strictly construed against the plaintiff and favorably to the defendant, and that so strictly construed, the contract would not cover liability which arose more than four years after the performance and acceptance of the work, unless a provision to that express effect had been included in the contract. The contract was very broad and comprehensive in its terms and bound the defendant to indemnify and hold harmless the plaintiff from any and all claims for damages to persons or property "arising out of or in anyway connected with the performance of any work covered by this contract."
*91 The facts of this case show without any question, that the claim for damages to the person of Mrs. Brant arose directly out of the faulty performance of the work by the defendant and without even any intervening or independent negligent act of the plaintiff, as opposed to the negligence of the defendant imputed to the plaintiff.
Under any interpretation of the contract, strict or liberal, we think the language used clearly includes the instant case and, as above pointed out imposed upon the defendant nothing more than the liability, well established and existing as a matter of law, with respect to an employee under similar circumstances.
The defendant, relying upon the case of Clyde v. Sumerel, 233 S.C. 228, 104 S.E. (2d) 392, contends that any liability on its part to either Mrs. Brant or the plaintiff terminated upon its completion of the work and the acceptance thereof by the plaintiff. The cited case is authority for the proposition that generally a contractor is not liable to a third person, receiving injury or damage as a result of negligent construction work, after the completion and acceptance thereof by, and the return of the premises to, the owner. The defendant argues that, at least, the contract in this case should be construed in the light of the law of the cited case and that it be held, therefore, that the defendant is not liable to the plaintiff because of an occurrence some four years after the acceptance of the work. Defendant further argues that since it was not liable to Mrs. Brant, again relying on the Clyde case, it could not be held liable to plaintiff.
In our view, the Clyde case is not at all in point with the instant case. There, the work was completed, accepted and the premises returned to the exclusive control of the owner and the dangerous condition which existed was open, patent and obvious, if not at the time of acceptance, immediately thereafter. Here, the premises were not returned to the plaintiff nor under the exclusive or any other *92 degree of control of the plaintiff. The sidewalk, both before and after the work done by the defendant, was under the control of the Town of Holly Hill. The defective and dangerous situation knowingly created by the defendant was not only not patent and obvious, but was done in such a manner as to keep the defect from becoming apparent for a long period of time.
The conduct of the defendant with respect to the repair of the sidewalk was not only grossly negligent, but, it seems to us, clearly willful. The defective and potentially dangerous condition in the sidewalk was completed and finished in such a manner as to avoid ready detection and to at least border upon fraud and deceit. We do not think it can be soundly argued, under the circumstances, that the defendant should not be held accountable for its conduct merely because such did not result in serious injury to anyone for more than four years after the delict. Certainly, a contractor could not absolve itself from liability for an occurrence, happening in the course of the work or immediately thereafter, by concealing the fact that it had negligently or willfully created a dangerous condition. This being true, it soundly follows that a contractor should not be allowed to absolve itself from liability for an injury occurring at a much later date, by the simple expedient of more thoroughly concealing or covering up the defective and potentially dangerous condition which it created, so as to postpone any injurious result.
To allow such would tend to place a premium on the art of deceit. The greater the deceit, the longer the postponement of any injurious result, and the greater the cloak of immunity for the perpetrator of the deceit.
For the reasons set forth, we conclude that the lower court correctly granted judgment in favor of the plaintiff.
Affirmed.
BRAILSFORD, J., concurs.
TAYLOR, C.J., and MOSS and LEWIS, JJ., concur in result.
*93 LEWIS, Justice (concurring).
I agree that the judgment of the lower court should be affirmed but upon somewhat different grounds from those stated in the opinion of Justice Bussey. His opinion contains a complete statement of the issues and the facts, and repetition in detail here is unnecessary.
The plaintiff and the defendant entered into a written contract whereby the defendant agreed to perform certain work for the plaintiff. It was expressly agreed that the defendant would perform the work in a good, proper and workmanlike manner, and that the defendant would indemnify and hold the plaintiff harmless "from any and all claims for damages to persons and/or property arising out of or in any way connected with the performance of any work" covered by the contract. The defendant undertook to perform certain work for the plaintiff under the contract but failed to do it in a workmanlike manner. Because of the negligent manner in which the defendant performed the work, a Mrs. Brant suffered personal injuries, for which the plaintiff was required to pay the sum of $36,000.00. The record abundantly sustains the findings of the lower court that the defendant failed to perform work under its contract with the plaintiff in a workmanlike manner and that the plaintiff has been damaged as a result thereof in the amount sought in this action.
This action is not based upon any claimed right of indemnity from a joint tort-feasor. Rather, it is an action to recover, under the foregoing written indemnity agreement, damages sustained by the plaintiff from the failure of the defendant to perform its express contractual obligation to do the work undertaken in a proper manner.
Since liability here is bottomed upon the contractual obligation of the defendant to the plaintiff, the general rule, adopted in the recent case of Atlantic Coast Line Railroad Company v. Whetstone, 243 S.C. 61, 132 S.E. (2d) 172, that there can be no indemnity among mere joint tort-feasors, *94 is inapplicable. Therefore, we are not here concerned with the respective liabilities of the plaintiff and the defendant to the injured party, Mrs. Brant, and may assume that they were joint tort-feasors. Our inquiry concerns solely the rights and obligations of the plaintiff and defendant under the written indemnity contract.
Under the contract, the defendant warranted that the work would be done in a proper manner. The defendant failed to perform the work as it warranted and solely created the condition out of which the injuries to Mrs. Brant arose. Clearly, the claim for damages here arose out of, and was connected with, the improper work done by the defendant while working for the plaintiff under the contract.
The defendant argues, however, that it should be relieved of any obligation to indemnify the plaintiff because the plaintiff failed to inspect and discover the faulty work of the defendant before Mrs. Brant received her injuries about four years later. As between the plaintiff and the defendant, the failure of the plaintiff, under the facts of this case, to discover and correct the defendant's breach of contract cannot excuse such breach and defeat the claim of the plaintiff. See: Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corporation, 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133. The defective and potentially dangerous condition of the premises, resulting from the faulty work of the defendant, was not subject to detection by reasonable inspection at the time of the completion of the job. Therefore, there was no acceptance of the work by the plaintiff so as to relieve the defendant of its contractual obligations. The nature of the work done by the defendant was such as to cause the dangerous condition in the premises to result at a later date and, therefore, postpone any injurious result from the failure to perform the work as agreed. The plaintiff at no time, prior to the injury of Mrs. Brant, knew of the faulty work of the defendant or the dangerous condition which resulted therefrom. Under the circumstances here, the fact that damage from the faulty *95 work did not result until about four years later does not relieve the defendant of its contractual obligation to indemnify the plaintiff.
TAYLOR, C.J., and MOSS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319536/ | 78 S.E.2d 312 (1953)
238 N.C. 547
STATE
v.
SLOAN.
No. 291.
Supreme Court of North Carolina.
November 4, 1953.
Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.
Charles L. Abernethy, Jr., New Bern, for defendant appellee.
BARNHILL, Justice.
The motion entered by defendant must be treated as a motion to quash the warrant for that the Recorder's Court of Craven County has no jurisdiction of the offense therein charged. The appeal from the judgment allowing the motion requires an examination of ch. 277, P.L.1919, now General Statutes, ch. 7, subchapter VI, arts. 24 and 25, which authorizes the creation of Municipal Recorders' Courts and County Recorders' Courts.
In 1919 the General Assembly enacted this statute "to establish a uniform system of recorders' courts for municipalities and counties * * *." Proceeding under this Act, the Board of Commissioners of Craven *313 County, in 1921, created a County Recorder's Court for Craven County.
In 1947 the governing board of the City of New Bern, acting under the authority vested in it by the same statute, created a Municipal Court for the City of New Bern.
The Act, ch. 277, P.L.1919, vests in Municipal Recorders' Courts created as therein provided "exclusive original" jurisdiction of all general misdemeanors committed within the corporate limits of the municipality or within a radius of two (now five) miles thereof. G.S. § 7-190.
It likewise vests in the county courts established pursuant thereto "jurisdiction in all criminal cases arising in the county which are now or may hereafter be given to a justice of the peace, and, in addition to the jurisdiction conferred by this section, shall have exclusive original jurisdiction of all other criminal offenses committed in the county below the grade of a felony as now defined by law, and the same are hereby declared to be petty misdemeanors". G.S. § 7-222.
Thus the County Recorder's Court of Craven County has exclusive original jurisdiction of offenses below the grade of felony committed anywhere in the county, while the Municipal Court of New Bern has like jurisdiction of such offenses when committed within the limits of the municipality or within a radius of five miles thereof.
That this creates an impossible situation is self-evident. Reductio ad absurdum. We cannot conceive any sound reason why we should give the word "exclusive" as used in section 4 any more force and effect than is accorded the same term as used in section 27 of the same Act. The two sections are irreconcilable to the extent they attempt to confer on both courts exclusive original jurisdiction of general misdemeanors committed within the territorial limits of the Municipal Recorder's Court of New Bern. To this extent one cancels out the other.
As we cannot reconcile the irreconcilable, we conclude that, within the territorial limits of the Municipal Recorder's Court of New Bern, the two courts possess and may exercise concurrent jurisdiction. In re Barnes, 212 N.C. 735, 194 S.E. 499. This necessitates a reversal of the judgment entered in the court below. The cause is remanded to the end that the solicitor may proceed with the prosecution.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319543/ | 88 Ga. App. 890 (1953)
78 S.E.2d 257
DAVISON-PAXON COMPANY et al.
v.
FORD.
34702.
Court of Appeals of Georgia.
Decided September 18, 1953.
Rehearing Denied October 1, 1953.
*891 T. Elton Drake, John M. Williams, for plaintiff in error.
Marshall, Greene, Baird & Neely, Edgar A. Neely, Jr., contra.
SUTTON, C. J.
1. The plaintiffs in error make the same contentions in this court as they made in their motion to dismiss the claim, filed with the State Board of Workmen's Compensation.
Code § 114-303 is as follows: "Every injured employee or his representative shall, immediately on the occurrence of any accident, or as soon thereafter as practicable, give or cause to be given to the employer, his agent, representative, or foreman, or the immediate superior of the injured employee, a notice of the accident. This notice shall be given by the employee either in person or by his representative, and until such notice is given the employee shall not be entitled to any physician's fees nor to any compensation which may have accrued under the terms of this law prior to the giving of such notice. In the event a notice has not been given within 30 days after the accident, in person either by the employee or his representative, to the employer, his agent, representative, or foreman, or to the immediate superior of the injured employee, a written notice must be given. This written notice will not be required where an injured employee or his representative has given notice in person to the employer, his agent, representative, or foreman, or to the immediate superior of the injured employee. No compensation will be payable unless such notice, either oral or written, is given within 30 days after the occurrence of an accident or within 30 days after death resulting from an accident unless it can be shown that the employee had been prevented from doing so by reason of physical or mental incapacity, or by fraud or deceit, or that the employer, his agent, representative, or foreman, or the immediate superior of the injured employee, had knowledge of the accident, or unless a reasonable excuse is made to the satisfaction of the [State Board of Workmen's Compensation] for not *892 giving such notice, and it is reasonably proved to the satisfaction of the [board] that the employer had not been prejudiced thereby." The required notice need not be given with a view to claiming compensation, and is sufficient if it puts the employer on notice of the injury so that it may make an investigation if it sees fit to do so. Railway Express Agency v. Harper, 70 Ga. App. 795 (29 S.E.2d 434). "No defect or inaccuracy in the notice shall be a bar to compensation unless the employer shall prove that his interest was prejudiced thereby, and then only to the extent of the prejudice." Code § 114-304.
The employer's time records showed that Ford worked on January 4 and 5, 1951, for the first time after being absent on account of illness since November 1, 1950; that he had a day off on Saturday, January 6, 1951; that he was "ill" on January 8 and 9, and "deceased" on January 10, 1951. The employer's attendance record as kept at its emergency hospital also showed that Ford was "sick" on January 8 and 9, and "deceased" on January 10, 1951.
Mattie Nell Wood, a nurse in charge of the employer's emergency hospital, testified that she filled out a portion of a form in which Ford sought hospitalization benefits under employees' group insurance for the charges incurred when he was in a hospital in November, 1950, and this form showed that the cause of Ford's disability then was coronary occlusion. Miss Wood further testified that, when she visited Ford at his home prior to January 1, 1951, "I asked him if Dr. Stone knew he had to pull rugs and he said, Miss Wood, I don't have to do that. We have a porter that does it for me." The witness saw Ford when he returned to work and told him to take it easy.
Helen Ebener, the floor supervisor of the basement in which Ford worked, testified that she knew that Ford was ill during the week he died, and that she went to his funeral; that she turned in absentee reports to the hospital every day and had heard that Ford's previous absence was due to a heart condition; that she did not remember being told that Ford died of a heart condition, but could have been told so.
Under this evidence, it appears that the employer had knowledge of Ford's heart condition and of his death, sufficient to put it on inquiry as to the circumstances causing his death, and *893 so the finding that the employer was not prejudiced by any deficiency of notice was authorized.
2. The contention that the claim, although filed within one year of the claimant's death, was barred by the statute of limitations, in that the death was erroneously stated in the claim filed to have been the result of an accident on November 1, 1950, is without merit. Code § 114-305 provides that a claim must be filed within one year after death resulting from an accident, and not, in such a case, within one year from the time of the accident. The claimant's husband died on January 10, 1951, and her claim was filed on December 5, 1951, within a year from the time of her husband's death.
3. There was evidence showing an inquiry to the deceased employee's heart on January 5, 1951. According to the evidence, Ford had recuperated from his previous heart attack in November sufficiently to return to work on January 4, 1951. His condition was one of hypertension and generalized arteriosclerosis, and he was 58 years of age. He worked on January 4 and 5, occasionally showing rugs to customers by pulling back the upper rugs in a stack to bring the lower rugs into view. There were 45 to 50 rugs in each stack, and each rug weighed from 40 to 50 pounds. Ford also lifted a rug platform during the morning of January 5; it weighed about 75 pounds. His face became flushed, and he rested by leaning against a rack of rugs. He left work early, at about 3 p. m. on January 5, complaining that he did not feel well. Upon arrival at his house at about 5 p. m., he complained of tightness in his chest and of pain in his left arm, which he attempted to ease by rubbing. Ford was ordered to bed by his physician, Dr. C. F. Stone, Jr., but his symptoms of pain continued until he died. These were substantially the same symptoms as he had in November.
The death certificate by Dr. Stone was to the effect that the condition or complication leading directly to Ford's death was myocardial infarction, occurring "minutes" before death; that the morbid condition giving rise to this cause was coronary arteriosclerosis, existing previously for "years," and that the underlying cause of death was generalized arteriosclerosis. Ford died at 3:30 a. m. on January 10, 1951.
There was also medical testimony authorizing the hearing director to infer that the exertion of Ford's work on January 5 so *894 weakened his heart muscles as to have caused his fatal heart attack less than five days later.
4. The findings of fact by the Deputy Director of the State Board of Workmen's Compensation were authorized by the competent evidence adduced and the inferences therefrom; the findings supported the award, and the Superior Court of Fulton County did not err in affirming the award of death benefits to the claimant for the death of her husband.
Judgment affirmed. Felton and Worrill, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319546/ | 224 S.C. 281 (1953)
78 S.E.2d 890
WILSON
v.
SOUTHERN FURNITURE CO.
16796
Supreme Court of South Carolina.
November 10, 1953.
Messrs. Legge & Gibbs, and Hagood, Rivers & Young, all of Charleston, for Appellant.
*282 Messrs. Thos. P. Bussey and William C. Ehrhardt, of Charleston, for Respondent.
November 10, 1953.
STUKES, Justice.
This appeal is from refusal of defendant's motion to change the place of trial from Charleston County (the defendant's residence, where the action was properly brought and should ordinarily be tried) to Beaufort County, which was made under the statute which is now Sec. 10-310 of the Code of 1952, upon the grounds that it would serve the convenience of witnesses and promote the ends of justice. Subsection (3). The order under appeal does not specify which ground appellant failed to establish to the satisfaction of the Court, or whether both. It may, therefore, be fairly assumed that it was intended to refuse the motion on both grounds, although either would have sufficed for refusal. See the many cases cited in the footnotes in 1 Code of 1952, pages 631, 632.
The action is for damages for injuries to person and property which resulted from a collision on Dec. 13, 1949, near Gardens Corner in Beaufort County, between respondent's automobile and appellant's delivery truck. Respondent and his passenger, at the time of the collision, resided in New York and appellant is a South Carolina corporation with its principal place of business in the City of Charleston, Charleston County. The driver of its truck and his helper are residents of Charleston. Respondent was *283 treated by a Charleston doctor and afterward by New York physicians. It appears that there were no eyewitnesses to the accident except the occupants of the vehicles, who were two in each and none of them is a resident of Beaufort County. Immediately after the collision a panel truck ran into the wreckage of the automobile. It was occupied by several people from Walterboro, which is approximately equidistant from Beaufort and Charleston.
Appellant made its motion upon affidavits which established that several Beaufort County residents were near the scene of the collision and would be witnesses for appellant concerning the atmospheric conditions that existed at the time which, apparently admittedly, were a contributing cause of the mishap, and as to the positions of the vehicles afterward, etc.; further that the highway patrolman who investigated the accident is a resident of Beaufort; and that a Beaufort surveyor and photographer have been engaged by appellant in its behalf; and the convenience of all of these witnesses would be better served if the trial should be had in Beaufort, rather than Charleston. In opposition, affidavits in behalf of respondent establish the residence of appellant, its truck driver and helper, in Charleston, and that two other persons who happened to be near the scene of the accident live in Charleston County; the equidistance of the residence of the Walterboro occupants of the third vehicle which was involved, mentioned above; that respondent has engaged a Charleston surveyor and photographer who would be inconvenienced by attendance upon trial at Beaufort; the Charleston and New York residence of the doctors who will testify; and that train and plane connections from New York are, in effect, incomparably better and faster to Charleston than to Beaufort.
The foregoing is a relatively brief resume of the respective factual showings of the parties but we think it sufficient to demonstrate that the case for removal of the trial to Beaufort County was at least offset by that made against it, which *284 justified the discretionary refusal of the motion upon the alleged ground of the promotion of the convenience of the witnesses.
In this situation, affirmance of the order must follow without the necessity of consideration of the second required factor the promotion of the ends of justice. Moreover, the disposition of such a motion is within the discretion of the hearing court and the exercise of it will not be disturbed on appeal in the absence of an abuse of discretion unless it is, in the words of the opinion in Griffin v. Owens, 171 S.C. 276, 172 S.E. 221, 222, "so opposed to a sound discretion as to amount to a deprivation of the legal rights of the complaining party." See also Wade v. Southern Ry. Co., 186 S.C. 265, 195 S.E. 560. The test for reversal was stated to be "manifest error" in Sample v. Bedenbaugh, 158 S.C. 496, 155 S.E. 828. This was repeated and followed in Landrum v. State Highway Department, 168 S.C. 139, 167 S.E. 164, in which action was retained for trial in Greenville County which arose out of an accident in Richland County and the situation with respect to local witnesses was about as is contended by appellant to exist in the case sub judice. The rule was adhered to, and additional authorities cited, in the opinion of the court by Acting Associate Justice Lide in Tucker v. Ingram, 187 S.C. 525, 534, 198 S.E. 25.
It was said in Frost v. Protective Life Ins. Co., 199 S.C. 349, 353, 19 S.E. (2d) 471, 473: "Motions of this character are addressed to the discretion of the lower Court, and its ruling will not be disturbed unless it appears from the facts presented that the Court in the exercise of a sound judicial discretion committed manifest legal error. Patterson v. Charleston & W.C.R. [Co.], 190 S.C. 66, 1 S.E. (2d) 920; Roof v. Tiller, 195 S.C. 132, 10 S.E. (2d) 333, 132 A.L.R. 500. Judicial discretion is an elastic, relative term, and any attempt to define it is generally regarded as a difficult and dangerous undertaking. As was said in Norris v. Clinkscales, 47 S.C. 488, 25 S.E. 797, 801: `The term "discretion" *285 implies the absence of a hard and fast rule. The establishment of a clearly-defined rule would be the end of discretion.' Discussing the same subject, the Court stated in Bishop v. Jacobs, 108 S.C. 49, 93 S.E. 243: `It is true one judge might exercise his discretion one way, and another judge might exercise it another way, on the same state of facts. In the nature of the case, then, there must be latitude in which the judicial discretion may move * * *.'"
There are later decisions of some relevancy and all of them which were cited in the briefs, and others, have been read and considered with care; and we do not think any one of them is a precedent for reversal of the order under appeal, or any of opposite result is close enough in facts to warrant the prolongation of this opinion to point out the differences and resulting distinctions. Our latest cases on the subject, both of which affirmed the orders of the hearing judges, are Haigler v. Westbury, S.C. 77 S.E. (2d) 207, and Hayes v. Clarkson, S.C. 78 S.E. (2d) 454, the latter just filed and therefore not yet reported.
The possible desirability of inspection by the trial jury of the scene of the collision need not be considered in this case because it goes to the requirement of the promotion of the ends of justice, which we have found it unnecessary to pass upon. Gregory v. Powell, 206 S.C. 261, 33 S.E. (2d) 629. However, it may be said that the record indicates that it is a straight highway, without unusual features, Wingard v. Sims, 222 S.C. 396, 73 S.E. (2d) 279, and each litigant has engaged a photographer and surveyor, whose pictures and maps should sufficiently enlighten the jury if controversy should arise concerning features of the locale. Furthermore, trial in Charleston County need not prevent the jury's view of the scene, if ordered in the discretion of the trial judge. It is about eighteen miles from Beaufort and, according to appellant's contention, 60 miles from Charleston; but by measurement of counsel for respondent the latter distance is 53.8 miles. See the corresponding distances in the case of *286 Thompson v. State Highway Department, 221 S.C. 250, 70 S.E. (2d) 241, which were 16 and 69 miles.
The exceptions are overruled and the order affirmed.
BAKER, C.J., and TAYLOR and OXNER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319686/ | 253 Ga. 489 (1984)
322 S.E.2d 45
GLADSON
v.
THE STATE.
41146.
Supreme Court of Georgia.
Decided October 17, 1984.
Rehearing Denied November 6, 1984.
Mitchell, Coppedge, Wester, Bisson & Miller, E. Neil Wester III, for appellant.
George W. Weaver, District Attorney, Michael J. Bowers, Attorney General, Dennis R. Dunn, for appellee.
SMITH, Justice.
James David Gladson, appellant, was found guilty and sentenced to life imprisonment for the murder of Jonathan Perry Boggs.[1] Appellant's *490 sole defense was based on accident. Appellant enumerates five errors: failure to charge on voluntary manslaughter and self-defense, introduction of previous criminal acts into evidence, and calling an unlisted and unsequestered witness in rebuttal. Finding no error, we affirm.
Appellant and Wanda Carver began dating in 1977, when they were 18 and 17 respectively. In 1979 they began living together but their relationship was anything but peaceful, and Carver often threatened to leave appellant. Carver testified that on one occasion appellant shot her when she threatened to leave him. He admitted firing the shot but claimed it was an accident. During the fall of 1982, appellant underwent knee surgery that left him unable to work. Carver left appellant soon after the surgery. When she told him that she was leaving, he pointed a shotgun at her face.
After the breakup, Carver agreed several times to go out with appellant. On one of those occasions, appellant told Carver that he would kill whoever she dated. At the same time he showed her a.45 caliber pistol.
Carver began to date Perry Boggs around January 1, 1983. Approximately two weeks later appellant saw Carver and Boggs sitting in Boggs' car, and appellant tried to jerk open the passenger door where Carver was sitting. Appellant wanted to know Boggs' name and what he was doing with his "old lady." After appellant calmed down, he invited Carver and Boggs for a beer. After they finished the beer, Boggs took Carver home. Appellant followed them to Carver's home, parked outside and waited. Later, when Carver and Boggs started to leave, they noticed appellant's van. Carver returned to the house and Boggs went outside alone. There were no eyewitnesses to the shooting; the only person to testify as to what occurred was the appellant. Appellant testified that he saw Boggs come out of the house, stop at his car, pick up something, and put it behind his back. Appellant placed his .45 caliber pistol in his waistband, fearing Boggs was concealing a weapon. Appellant also testified that Boggs cussed him and insisted that they fight, but appellant refused to fight with Boggs, saying, "I ain't startin' nothin' here in the yard." Appellant testified that Boggs then opened the door, pulled appellant out of the van, and slammed him up against the door. Appellant shoved Boggs backward and Boggs hit appellant on the left collarbone with a small baseball bat, causing him to fall to the ground. As he was attempting to get up, he pulled out the pistol and pointed it at Boggs and told Boggs to *491 drop the bat. Appellant said that Boggs swung the bat again hitting appellant's hand and pistol, causing the gun to fire one bullet that hit Boggs in the left hand and chest. Appellant said that he walked over to where Boggs had fallen, picked up the bat, and used it as a cane to help himself back to the van. Appellant then fled. He left the van at his father's house and took another car. Later he threw away the gun and the bat and left the state.
Dr. James Dawson, Assistant Director of the Georgia Crime Laboratory, testified that Boggs suffered from an entry wound on the back of his middle finger of his left hand and an exit wound on the palm side of the same finger. There was considerable gunpowder on the entry side of the wound indicating that the gun was within two to three inches of Boggs' hand when the shot was fired. The same bullet entered Boggs' chest just below the collarbone on the left side causing damage to both lungs. The pulmonary artery of the right lung was penetrated causing rapid and voluminous blood loss. Dr. Dawson testified that the gun had to be fairly sharply above and to the left of Boggs to have caused the injuries Boggs sustained. This testimony contradicted appellant's testimony that he was on the ground below Boggs when the gun fired. The bat that appellant contends Boggs was hitting him with was never found. Based on the evidence presented at trial, we find any rational trier of fact could have found appellant guilty of murder beyond a reasonable doubt under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
1. Appellant contends in enumerations of error one and two, that the trial court erred in refusing to give appellant's requested charges on voluntary manslaughter and self-defense. We find no error.
The entire thrust of appellant's defense was that of accident. When asked by the state, "is your testimony that this is all a horrible accident?" he responded, "Yes, sir." Appellant was the only person with Boggs and the only one who knew what happened. Never once did appellant testify or even indicate that he was acting "solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person." OCGA § 16-5-2. He only testified as to an accident. We reject appellant's claim that he was engaged in mutual combat. His own testimony indicates that he did not want to fight. The evidence here does not raise an issue of voluntary manslaughter. See Kessel v. State, 236 Ga. 373, 374 (223 SE2d 811) (1976). The defenses of accident and self-defense are inconsistent. Boling v. State, 244 Ga. 825, 829 (262 SE2d 123) (1979). The trial court did not err in refusing to charge on voluntary manslaughter or self-defense in this case.
2. Appellant contends that it was error for the trial court to allow into evidence similar criminal acts.
For evidence of other criminal acts to be admissible, the state *492 must show two things. First, the defendant was the perpetrator of the independent crime. Second, there is a sufficient similarity or connection between the extrinsic act and the crime charged such that proof of the former tends to prove the latter. Williams v. State, 251 Ga. 749, 755 (312 SE2d 40) (1983). In this case appellant admitted that he shot Carver, therefore, the first condition was met. Second, the state showed that on two occasions, when appellant feared that Carver was going to leave him, he reacted by pointing a gun at her. One of those times he shot her and claimed it was an accident, just as he has claimed shooting Boggs was an accident. After proof of the two above stated conditions, evidence of the prior acts was admissible to prove motive, intent, absence of mistake or accident, plan or scheme, and identity. Williams, supra. At the time the evidence was introduced, the trial court instructed the jury that the evidence had been admitted only "for the purpose of showing motive or intent." We find no reversible error.
3. Appellant contends as his fourth enumeration of error that the above mentioned limiting instructions were confusing and burden shifting.
No objection was made in the trial court when the limiting instructions were given. If appellant was dissatisfied with the limiting instructions that he requested, he should have objected at the time the instructions were given. The Supreme Court, among other things, is a court for correction of errors of law committed in the trial court; we will not hear appellant's objection made for the first time here. Starr v. State, 229 Ga. 181, 183 (190 SE2d 58) (1972). We find no reversible error.
4. Appellant contends it was error to allow an unlisted and unsequestered state's witness to testify in rebuttal.
This court has long held that calling an unlisted witness in rebuttal is not error. Depree v. State, 246 Ga. 240, 243 (271 SE2d 155) (1980). The question regarding the unsequestered witness was answered adversely to appellant in Jordan v. State, 247 Ga. 328, 347 (276 SE2d 224) (1981), where we held, "a witness who has violated the rule of sequestration in a criminal case shall not be prevented from testifying." We find no error.
Judgment affirmed. All the Justices concur.
NOTES
[1] The crime was committed on January 15, 1983. The Fannin County jury returned its verdict of guilty on November 30, 1983. A motion for new trial was filed on December 22, 1983, heard and denied on February 8, 1984. Notice of Appeal was filed February 28, 1984. The transcript of evidence was filed on March 16, 1984. The record was docketed in this court on May 3, 1984. The case was submitted on June 27, 1984. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/877806/ | 649 P.2d 749 (1982)
In the Matter of M.N., R.N., B.N., S.N. and W.N., Neglected and Dependent children.
No. 82-119.
Supreme Court of Montana.
Submitted on Briefs July 1, 1982.
Decided August 11, 1982.
*750 Torger S. Oaas, Craig R. Buehler, Lewistown, for appellant.
Bradley B. Parrish, William E. Berger, Lewistown, for respondent.
DALY, Justice.
This appeal was brought by Mrs. Ann Sparks, the paternal grandmother of the five N. children, who intervened to seek custody of her grandchildren. She appeals from the judgment, entered by the Honorable R.D. McPhillips, in the District Court of the Tenth Judicial District, granting custody of the five N. children to the Department of Social and Rehabilitation Services (SRS).
The natural parents of the five N. children, M.N., R.N., B.N., S.N., and W.N., have had problems caring for and raising the children over a long period of time. They have had contact with welfare agencies in two other states prior to their arrival in Montana. The N. family came to Fergus County, Montana, to avoid contact with the welfare authorities in the State of Washington. During the period the family was in Fergus County, the youngest child, W.N., was declared dependent and neglected, but was returned to his natural parents.
On October 3, 1980, the SRS received word that the N. family was planning to leave Lewistown. The SRS took emergency custody of all the children at that time and has had custody since.
An adjudicatory hearing was held, pursuant to Section 41-3-404, MCA. At that hearing all five N. children were declared youths in need of care, and they remained in the custody of the SRS. A dispositional hearing, required by Section 41-3-406, MCA, was held Friday, January 29, 1982. At that time Mrs. Sparks, the appellant, testified she moved to Montana in September of 1981 to see what she could do about the kids (grandchildren); that she was presently working, but was planning to move back to Washington. She also testified that she was present at the adjudicatory hearing.
Upon completion of the dispositional hearing, Judge McPhillips entered his judgment terminating the parental rights of G.N. and J.N., the natural parents of the five N. children and awarding custody to the SRS with the right to consent to adoption. This appeal followed.
The sole issue presented to this Court for review is:
Did the District Court err in awarding custody of the five minor N. children to the SRS, with the right to consent to adoption rather than to their paternal grandmother, Mrs. Ann Sparks?
A grandmother does not, by virtue of her status as a grandparent, have any superior right of adoption or custody to that of a non-relative. Graham v. Childrens Service Division, Department of Human Resources, (1979), 39 Or. App. 27, 591 P.2d 375; In Re the People of the Interest of C.P. and D.P. Children (1974), 34 Colo. App. 54, 524 P.2d 316; Section 41-3-406, MCA, supports this position also. It states:
"Dispositional Hearing. (1) If a youth is found to be abused, neglected, or dependent under 41-3-404, the court after the dispositional hearing may enter its judgment making any of the following dispositions (emphasis added) to protect the welfare of the youth:
"(a) ...
"(b) transfer legal custody to any of the following:
"(i) ...
"(ii) ...
"(iii) a relative or other individual who, after study by a social service agency *751 designated by the court, is found by the court to be qualified to receive and care for youth; ..."
This section is not mandatory but places the discretion in the District Court whether or not to award custody to a relative. In the Matter of T.J.D., J.L.D. and R.J.W. (1980), Mont., 615 P.2d 212, 37 St.Rptr. 1385, 1390.
Where custody is concerned, the best interest of the children is the paramount consideration. In the Matter of T.J.D., J.L.D. and R.J.W., supra; In Re Gore Youths in Need of Care (1977), 174 Mont. 321, 570 P.2d 1110; In the Matter of Inquiry into J.J.S. (1978), 176 Mont. 202, 577 P.2d 378; In the Matter of Burgdorf and Berry (1976), 170 Mont. 116, 551 P.2d 656; In the Matter of Declaring the Jones and Peterson Children Dependent and Neglected Children v. Peterson (1975), 168 Mont. 1, 539 P.2d 1193. The District Court in this case gave serious consideration to the grandmother's request but was compelled to balance this with the consideration of the best interest of the children as is evidenced by the Court's Finding of Fact No. IV.
"The paternal grandmother of the five (5) children, ANN SPARKS, has asked for custody of all or any part of the five (5) children. Mrs. Sparks is a widow and 57 years old. She presently works at Eddie's Corner as a cook five (5) nights a week and lives in Moore. Over the past three (3) or four (4) months, she not only obtained employment but has managed to save up FIVE HUNDRED DOLLARS ($500.00). Mrs. Sparks plans to eventually return to Washington where she resides with her 90-year-old father. She, by necessity, has to work for a living. The Court finds that it would be a burden upon Mrs. Sparks to award her custody of the children. The Court finds that in all probability she would be unable to resist the intrusions of both J.N. and G.N.; that it would in the long run be contrary to the best interest of said children or any of them to award custody to Mrs. Sparks, particularly in view of the fact that time is somewhat of the essence and the propensities of the natural parents.
"Further, the Court finds that it is in the best interest of said children that they continue to be placed with the Department of Social Services to continue the excellent progress said children have shown since the Department has had their custody."
Appellant, grandmother, contends that the policy set out in section 41-3-101(1)(d), MCA, of preserving the unity and welfare of the family whenever possible, was not followed by the District Court. But, as this Court has made abundantly clear in its prior decision of In Re the Matter of Inquiry into J.J.S., supra, "[F]amily unity need not be preserved at the expense of the child's best interest." 577 P.2d at 382.
In the present case both the grandmother and the SRS presented evidence as to their ability to serve the children's best interest. The SRS presented testimony that the children's individual needs outweighed their need to remain together. Contrary to this, Mrs. Sparks brought in a psychologist who testified that separation of siblings causes damage to their emotional development and, therefore, it would be better for the children to place them with Mrs. Sparks. There was also conflicting evidence in other areas concerning Mrs. Sparks' ability to raise the children. Concern was also voiced as Mrs. Sparks testified that she wishes to return to Sedro Wooly, Washington, with the children, which is only 50 miles from where the children's natural parents are now living, that the children might be returned to them.
In considering all the evidence together with such factors as Mrs. Sparks' age, living arrangement and need to work, the District Court entered a judgment finding it in the best interest of the children that custody be awarded to the SRS, with the right to consent to adoption. The District Court's findings enjoy a presumption of correctness, and since there is sufficient credible evidence in the record to support his judgment, we cannot and do not interfere with Judge McPhillips' judgment.
*752 The judgment of the District Court is affirmed.
HASWELL, C.J., and HARRISON, MORRISON and SHEEHY, JJ., concur. | 01-03-2023 | 06-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319622/ | 135 S.E.2d 153 (1964)
205 Va. 1
Jasper Gordon IRVAN
v.
JAMISON OIL COMPANY, Incorporated.
Supreme Court of Appeals of Virginia.
March 9, 1964.
Robert J. Rogers, Roanoke, James M. Roe, Jr., Fincastle (Stuart B. Carter, Fincastle, *154 Woods, Rogers, Muse & Walker, Roanoke, Carter & Roe, Fincastle, on brief), for plaintiff in error.
C. E. Hunter, Charles D. Fox, III, Roanoke (Hunter, Fox & Fox, Roanoke, on brief), for defendant in error.
Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, WHITTLE, SNEAD, I'ANSON and CARRICO, JJ.
EGGLESTON, Chief Justice.
Jasper Gordon Irvan, hereinafter called the plaintiff, filed his motion for judgment in the court below against Jamison Oil Company, Incorporated, hereinafter called the defendant, to recover damages for personal injuries sustained in the collision of the automobile which he was driving and a tractor-trailer owned by the defendant and operated by its servant and employee, Walter E. Wolfe. The defendant filed a general denial of the plaintiff's claim and a counterclaim for its property damage resulting from the collision.
At the trial, which was had before a jury, the lower court overruled the defendant's motion, made at the conclusion of all of the evidence, to strike the plaintiff's evidence. The jury rendered a verdict finding that the collision had been caused by the "negligence of both parties." Accepting this verdict, the court entered a judgment in favor of the defendant on the plaintiff's claim, and in favor of the plaintiff on the defendant's counterclaim. We granted the plaintiff a writ of error.
In his assignments of error the plaintiff contends that the lower court erred in refusing to set aside the verdict and in its rulings on the instructions. The defendant assigns cross-error to the denial of its motion to strike the plaintiff's evidence.
The collision occurred at about 11:00 a. m. on July 9, 1962, on U. S. Route 220, in Botetourt county, just north of its intersection with the driveway leading from the Irvan residence located west of the highway. The highway runs approximately north and south and is paved to a width of 20 feet and 5 inches. Wolfe, the driver of the defendant's tractor-trailer, was killed in the collision, and the plaintiff, Irvan, was the only witness who testified as to how it occurred.
According to Irvan's testimony, it was his intention to proceed along his driveway to the western side of the highway, drive across the highway, make a left turn, and go northwardly along the northbound lane. Before going onto the hard-surface he came to a full stop and looked in both directions. He saw no traffic approaching from the north, that is, on his left. To the south, that is, on his right, he saw a truck which appeared to him to be about one-half a mile away. Thinking that he had sufficient time to complete his intended turn ahead of the approaching truck, he pulled onto the hard-surface, made his left turn, and was headed north in his proper lane of travel when his motor stalled. After a lapse of from three, four or five seconds, he succeeded in starting his motor and was moving ahead when his car was struck in the rear by the defendant's tractor-trailer, which was likewise proceeding in a northwardly direction.
As a result of the collision, Irvan was injured, Wolfe, the driver of the tractor-trailer, was killed, both vehicles were demolished, and 6,400 gallons of gasoline on the tractor-trailer were lost.
A State trooper, who arrived on the scene shortly after the accident, testified that there were marks on the pavement in the northbound lane which indicated that the point of impact was 75 feet north of the center line of the Irvan driveway. He found that the Irvan car had been carried 121 feet beyond the point of impact and had come to a stop in the ditch on the eastern side of the highway. The tractor-trailer had likewise come to a stop east of the eastern side of the pavement, 99 feet beyond the Irvan car.
According to the further testimony of the trooper, the road was straight and the *155 view unobstructed for at least 420 feet south of the point of the impact, the direction from which the tractor-trailer had come. There was no evidence of skid marks on the pavement or other indication that the brakes had been applied on the tractor vehicle before reaching the point of impact.
There was evidence that the defendant's vehicle had been inspected a few days before the accident and that its brakes, steering mechanism, and other equipment had been found to be in good condition.
While the trooper saw the plaintiff at the scene of the accident, he did not take a statement from him at that time. Later, in the hospital, he talked with the plaintiff who told him that the accident had occurred substantially as the plaintiff testified.
Another witness came upon the scene shortly after the accident and when he inquired of the plaintiff as to how it occurred, the reply was, "I don't know."
In support of its contention that the lower court should have struck the plaintiff's evidence, the defendant argues that the plaintiff's testimony that the tractor-trailer was one-half a mile away when he, the plaintiff, entered the highway is incredible; that allowing for its ordinary speed the vehicle must have been much nearer. But conceding that the plaintiff was mistaken in his estimate of the distance that the vehicle was from him when he entered the highway, this would not necessarily absolve the defendant's driver of negligence. According to the undisputed testimony of the trooper, the driver of the defendant's vehicle had an unobstructed view of the plaintiff's car ahead of him on the highway for a distance of 420 feet, and the jury had the right to find that by the exercise of ordinary care he should have seen the car and avoided the collision.
On the other hand, the jury had the right to find that the plaintiff was mistaken in his estimate of the distance the tractor-trailer was from him when he drove onto the highway, and that, in the exercise of ordinary care, he should have observed that it was too close for him to have executed the left-hand turn ahead of it. In short, we think it was for the jury to say, under proper instructions, whether the defendant or the plaintiff was, or both were, guilty of negligence which proximately caused the accident. Consequently, the lower court properly overruled the defendant's motion to strike.
Over the objection of the plaintiff the court granted Instruction "E". This instruction read: "The court instructs the jury that if a driver of a motor vehicle, through no fault of his own, is required to act in a sudden emergency, even if he acts unwisely, he is not guilty of negligence, since in case of a sudden and unexpected danger, necessitating an immediate decision as to which of two or more ways of escape will be resorted to, the law makes allowance for errors of judgment, even though it appears that the resulting accident could have been avoided if the party so placed in peril had pursued a different course."
We agree with the plaintiff that there is no evidence on which the jury could properly predicate a finding that the defendant's driver, "through no fault of his own," was "required to act in a sudden emergency." There is no evidence that just before the collision the defendant's driver was confronted with a sudden emergency, or, if so, what brought it about. Hence it was error to grant this instruction.
Over the like objection of the plaintiff, the court granted Instruction "F" which told the jury that if they find from the evidence that immediately prior to the accident the plaintiff was "driving in such a manner as not to have his car under proper control, then he was guilty of negligence."
Again, we find no evidence on which to base this instruction. The defendant insists that the instruction was proper because, it says, the plaintiff undertook to drive his car after the motor had stalled. It argues that, *156 in this situation, the plaintiff should either have brought his car to a stop or turned off of the pavement onto the shoulder. But the fact that he did neither does not indicate that the plaintiff was "driving in such a manner as not to have his car under proper control." Indeed, the plaintiff testified that despite the momentary failure of the ignition, he had started the motor and had the car under control at the time of the collision.
Error is assigned to the granting of Instruction "C", the material portion of which told the jury that it was the duty of the plaintiff before entering the highway from his private driveway to stop immediately, and "upon entering said highway to yield the right of way to all vehicles approaching on said highway." (Emphasis added.) While the wording of the instruction is in accord with that of the statute (Code, § 46.1-223), we held in Temple v. Ellington, 177 Va. 134, 142, 12 S.E.2d 826, 828, 829, that the section must be given a reasonable construction and that a driver entering a highway from a private road "is only required to yield the right of way to those lawfully approaching so near the intersection that he cannot safely enter it." At another trial of the present case a similar instruction, if granted, should be in conformity with that holding.
The plaintiff assigns error to the refusal of the lower court to grant Instructions Nos. 2, 3 and 5 requested by him. We find that each of these instructions was properly refused.
Instruction No. 2 would have told the jury that "it was the duty of the driver of the Jamison truck to operate the same at a careful and prudent rate of speed under the existing conditions." As the court pointed out, there was no evidence that the vehicle was being operated other than at a careful and prudent rate of speed.
Instruction No. 3 would have told the jury of the duty of the driver of a motor vehicle to "keep the same under proper control." Here there was no evidence of such lack of proper control.
Instruction No. 5 undertook to tell the jury of the duty of a driver in overtaking and passing another vehicle ahead proceeding in the same direction, as provided in Code, § 46.1-208. It was a finding instruction which would have told the jury that the failure of the defendant's driver to comply with the terms of the statute was negligence and required a verdict for the plaintiff, without predicating such conclusion upon the additional finding that the plaintiff was free of negligence.
For the error of the lower court in granting Instructions "E" and "F" the judgment is reversed, the verdict set aside, and the case remanded for a new trial.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319637/ | 244 S.C. 1 (1964)
135 S.E.2d 316
Tessie J. CORLEY, Respondent,
v.
COASTAL STATES LIFE INSURANCE COMPANY, Appellant.
18179
Supreme Court of South Carolina.
March 10, 1964.
Messrs. Lumpkin, Kemmerlin & Medlock, of Columbia, for Appellant.
*2 Messrs. Seigler & Seigler, of Columbia, for Respondent.
March 10, 1964.
TAYLOR, Chief Justice.
In this action Respondent, Tessie J. Corley, alleges that Appellant, Coastal States Life Insurance Company, breached an insurance contract and that such breach was accomplished with a fraudulent intention accompanied by fraudulent acts. The Insurance Company denied that it had breached the contract and denied any fraudulent act or intent on its part. The Appellant paid into Court the sum of $7,296.75 together with $60.00 interest, the amount it claimed due Respondent under the terms of the life policy. The jury returned a verdict in favor of Respondent of $144.65 actual damages and $10,000.00 punitive damages in addition to the verdict of $7,356.75 actual damages directed in favor of Respondent by the trial Judge.
*3 At appropriate stages of the trial, the Insurance Company made motions, which were denied, for nonsuit and for directed verdict as to actual damages on the grounds that there was no additional amount due Respondent as actual damages and that there was no evidence of an act of fraud or of fraudulent intent on the part of the Insurance Company. After the jury's verdict, the Insurance Company also moved for judgment n. o. v. or alternatively for a new trial, which the Court also denied.
The policy in question was issued October 27, 1950, on the life of Respondent's husband, naming Respondent as beneficiary. The insured died July 1, 1961, while the policy was in force. The face value of the policy was for $5,000.00 and provided for two additional death benefits, the first of which was denominated Bonus Participation Fund and the other death benefit provided for a full return of premium. $925.50 had been contributed to the Bonus Participation Fund and credited to the policy. $825.75 had previously been paid the insured, leaving a balance of $96.75 in the fund due as an additional death benefit. The return of premium rider provided "* * * the Company will add to the death benefits otherwise payable an amount sufficient to give a full return of premium on the policy and this rider, ($200.00 per annum) * * *". The above quoted portion of the policy is ambiguous when considered with the fact that the policy on the first page thereof indicates that the annual premium is $213.15. Premiums had been paid on the policy for 11 years. Appellant contends that the annual basic premium for the face amount of the policy is $185.10 and that amount together with the $14.90 premium for the return of premium rider, a total of $200.00, is all that was intended to be returned. Under this construction, the Waiver of Premium for Disability in the amount of $3.15 and the Double Indemnity premium of $10.00 were not included. Although Appellant's contention is reasonable, it is not the only reasonable construction to be placed on the language used and the jury's verdict of $144.65 additional *4 actual damages (a return of $13.15 for 11 years) has not been questioned as to its accuracy by the exceptions.
The Insurance Company's motions for nonsuit, directed verdict, judgment n. o. v. and alternatively for a new trial in regard to punitive damages were based on the contention that there was no evidence of fraudulent intent or of an act of fraud on its part which would warrant the recovery of punitive damages.
It is well settled that in an action for breach of an insurance contract, proof of fraudulent intent accompanied by a fraudulent act is necessary to support a verdict for punitive damages. Blackmon v. United Insurance Co., 235 S.C. 335, 111 S.E. (2d) 552.
In response to a request for proof of loss forms, Respondent was advised by the Insurance Company by letter dated July 6, 1961, to its manager in Columbia, S.C. that the total amount payable was $5,096.80. Respondent conferred with a Mr. Foster, a friend of the family in the insurance business; and he, in an effort to determine the correct amount payable, contacted the South Carolina Insurance Commission. On July 19, 1961, Mr. A.H. Ninestein, Chief Investigator for the South Carolina Insurance Commission, received a letter of the same date from Ben W. Lacy, Assistant Secretary of the Insurance Company, to the effect that the total amount payable was $7,296.75. Relying upon this information, Respondent forwarded to the Insurance Company her copy of the policy. Rather than receiving the amount quoted to the South Carolina Insurance Commission, Respondent received a letter through the Insurance Company's local agent, signed by Jack Weldon, another assistant secretary of the Company, dated August 3, 1961, stating that $6,371.25 was the correct amount due and that the previous quotations were incorrect. At this point, Respondent turned the matter over to her attorneys, who returned the proffered check with a request for correction. By letter dated August 28, 1961, another check in the amount of $6,371.25 was received correcting *5 a typographical error in Respondent's name, and reiterating that such amount constituted its full settlement provided for by the policy. This action was thereafter commenced on August 29, 1961.
The Insurance Company offered some explanation for the discrepancy in the amounts quoted and for their action in the above matter contending that it made a mistake while acting in good faith. The reasons given for the asserted mistakes are that very few policies of this particular type had been issued by the Company and that as the policy provided for several different benefits, one of which had to be calculated against another to arrive at a final entitlement, the erroneous settlement offer was arrived at through mistaken calculations of Mr. Weldon. However, Mr. Weldon testified that the decision arrived at by him as to the amount due Respondent was a "deliberate decision" on his part.
"Liability in tort exists for false statements made without actual knowledge of falsity, but in such a manner or under such circumstances that knowledge of falsity is imputed to the representor. If one asserts that a thing is true within his personal knowledge, or makes a statement as of his own knowledge, or makes such an absolute, unqualified, and positive statement as implies knowledge on his part, when in fact he has no knowledge as to whether his assertion is true or false and his statement proves to be false, he is as culpable as if he had willfully asserted that to be true which he absolutely knew to be false and is equally guilty of fraud. False statements which are made recklessly, without knowing or caring whether they are true or false, will support an action of deceit. * * *" 23 Am. Jur., Fraud and Deceit, Section 128, 1. 921. See Aaron v. Hampton Motors, Inc., 240 S.C. 26, 124 S.E. (2d) 585; and Gary v. Jordan, 236 S.C. 144, 113 S.E. (2d) 730.
As stated in Yarborough v. Bankers Life & Casualty Co., 225 S.C. 236, 81 S.E. (2d) 359: "If considered *6 separately, some of the foregoing acts may not evidence bad faith but all the circumstances, considered together, reasonably warrant an inference of breach of contract accompanied by fraudulent acts. * * *"
The conduct of the Insurance Company in attempting to settle Respondent's claim for a sum substantially less than the amount quoted to the South Carolina Insurance Commission as owing under the policy (an amount it was in a position to know was incorrect) is evidence from which fraud can be legally inferred and is sufficient to require the trial Judge to submit the issue of fraud to the jury.
Appellant also asks that the verdict for punitive damages be set aside on the grounds it was so excessive as to shock the Court or necessarily the result of passion, prejudice and caprice, the actual damages being $7,501.43, with interest, as compared to $10,000.00 punitive damages. The motion for a new trial was made upon these grounds and refused by the trial Judge's Order of October 6, 1962, and we cannot say that he abused his discretion.
Affirmed.
MOSS, LEWIS, BUSSEY and BRAILSFORD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319643/ | 649 P.2d 1144 (1982)
William E. FERNANDES, Plaintiff-Appellant,
v.
Jan TENBRUGGENCATE and the Honolulu Advertiser, Defendants-Appellees.
No. 8050.
Supreme Court of Hawaii.
August 26, 1982.
*1146 Michael R. Salling and Lehua Fernandes Salling, Kapaa (Fernandes, Salling & Salling, Kapaa, of counsel) on briefs for plaintiff-appellant.
Jeffrey S. Portnoy, Honolulu (Cades Schutte Fleming & Wright, Honolulu, of counsel) on briefs for defendants-appellees.
Before RICHARDSON, C.J., and LUM, NAKAMURA, PADGETT and HAYASHI, JJ.
PER CURIAM.
Plaintiff-appellant, Councilman William Fernandes (hereinafter cited as appellant), appeals the trial court's grant of summary judgment in favor of defendants-appellees, Jan Tenbruggencate and the Honolulu Advertiser (hereinafter cited as appellees or Tenbruggencate and Advertiser respectively), in a defamation action. For reasons set forth below, we affirm.
I.
Appellant initiated this action in response to a series of articles published by the Advertiser which allegedly injured appellant's reputation for honesty and integrity, subjecting appellant to the criticism, scorn, and mistrust of his neighbors, colleagues, and business acquaintances. While appellant initially alleged that the series of articles published by the Advertiser were defamatory, it becomes clear from the record that the only article at issue is one entitled "Brother Helps in Kauai Rezoning Request," written by Tenbruggencate.
The article reports on appellant's signing of a resolution seeking the rezoning of land owned in part by appellant's brother; it alludes to a possible conflict of interest problem but concludes that appellant was not in conflict when he signed the resolution.
In its closing paragraphs, reference is made to a previous situation involving appellant and the Kauai County's Board of Ethics. The article states that "[t]he County's Board of Ethics initially called [the previous case] a conflict of interest but after Fernandes appealed, the board reversed its opinion, saying it had been mistaken." (Emphasis added.) In actuality, appellant had written to the board inquiring if he could vote on the matter without violating the county's ethics regulations; the board responded in the affirmative. Later, additional facts concerning appellant's request were brought to the board's attention. At that point, the board stated that had it known of the additional facts, it would have concluded that appellant could not vote on the matter without being in conflict; however, appellant was justified in relying on its previous ruling. Subsequently, the board again reversed itself upon realizing it had misinterpreted the applicable regulations.
II.
Appellant contends that the trial court erred in granting appellees' motion for summary judgment when he had established a prima facie case of defamation by showing that the article defamatorily and falsely implied that appellant acted unethically and that the article was published with knowledge of its falsity or with reckless disregard as to whether it was true or false.
Summary judgment is properly granted where it is established from the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Gealon v. Keala, 60 Haw. 513, 591 P.2d 621 *1147 (1979); Technicolor v. Traeger, 57 Haw. 113, 551 P.2d 163 (1976); Gum v. Nakamura, 57 Haw. 39, 549 P.2d 471 (1976); Aku v. Lewis, 52 Haw. 366, 477 P.2d 162 (1970); Ottensmeyer v. Baskin, 2 Haw. App. 86, 625 P.2d 1069 (1981). The standard to be applied by this court in reviewing the validity of a grant of summary judgment is identical to that employed by the trial court. Technicolor, supra, 57 Haw. at 118, 551 P.2d at 168. This means that "the inferences to be drawn from the underlying facts alleged in the materials (such as depositions, answers to interrogatories, admissions and affidavits) considered by the court in making its determination must be viewed in the light most favorable to the party opposing the motion." Gum, supra, 57 Haw. at 42, 549 P.2d at 474.
In the instant case, summary judgment would have been properly granted if the court found that the communication was incapable of bearing the defamatory meaning ascribed to it by the appellant as a matter of law.[1] A communication is defamatory when it tends to "harm the reputation of another as to lower him in the estimation of the community or deter third persons from associating or dealing with him." Restatement (Second) of Torts § 559 (1976); Kahanamoku v. Advertiser, 25 Haw. 701 (1920). Whether a communication is defamatory "`depends, among other factors, upon the temper of the times, the current of contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place.'" Schermerhorn v. Rosenberg, 73 A.D.2d 276, 284, 426 N.Y.S.2d 274, 282 (1980). Kahanamoku, supra.
Alternatively, summary judgment would be proper where, although the communication is susceptible to a defamatory interpretation, the moving party showed "through uncontroverted depositions and affidavits that the publication was made without deliberate falsification and without a high degree of awareness of the probable falsity of the statements in the publication; in such instance, there is no genuine issue of `actual malice' for trial." Tagawa v. Maui Publishing Co., 50 Haw. 648, 652, 448 P.2d 337, 340 (1968).
We believe that summary judgment was properly granted because the article is not defamatory as a matter of law, and, thus, we need not reach the issue of actual malice. Clark v. Allen, 415 Pa. 415, 204 A.2d 42 (1964).
Appellant asserts that the article entitled "Brother Helps in Kauai Rezoning Request" is defamatory because the headline implies that appellant improperly used his influence for family aggrandizement and the statement that the Board of Ethics initially found appellant in conflict when he voted in a previous matter falsely accused appellant of violating the county's ethics regulations. Appellant argues that the implication that he acted unethically in promoting rezoning which could benefit his family was especially damaging to his reputation because:
[i]n recent years Kauai has experienced unlawful, even violent protests and demonstrations against rezoning to allow urbanization and further development. Highly publicized news articles and political speeches have fostered the attitude that politicians who support such legislation are corrupt influence peddlers, traitors on the take from any land owner who is the highest bidder. This attitude is becoming increasingly irrational, often surfacing in the form of racial hatred of *1148 all outsiders and anything new or different.
Opening Brief for Appellant at 8-9.
As to the headline, appellant, relying on Sprouse v. Clay Communications, Inc., W. Va., 211 S.E.2d 674 (1974), cert. denied, 423 U.S. 882, 96 S. Ct. 145, 46 L. Ed. 2d 107 (1975), contends that it is actionable although the article itself may not be. However, Sprouse does not stand for the proposition that a headline should always be examined separately, without regard to the mitigating material in the body of the attached article in determining whether it is defamatory. While the court did consider the headlines separately in determining whether defamatory falsehoods were published, it repeatedly cautioned that it did so only because "the plaintiff proved that the newspaper abdicated its traditional role of fairly reporting the news and became a participant in a scheme or plan, the object of which was to employ grossly exaggerated and patently untrue assertions, embodied primarily in headlines, to destroy the character of the plaintiff]." Id. at 691. It further stated that "[g]enerally where the headline is of normal size and does not lead to a conclusion totally unsupported in the body of the story, both headlines and story should be considered together for their total impression." Id. 211 S.E.2d at 686. (Emphasis added.)
While this court recognizes that there are jurisdictions in which a newspaper headline alone may be actionable,[2] the majority of jurisdictions support the rule that headlines are generally to be construed in conjunction with their accompanying articles.[3] This court previously stated the rule that:
"`the law does not dwell on isolated passages, but judges of the publication as a whole.'"
This is undoubtedly the rule where the whole article relates to one subject for all that is said on the subject must be considered in order to determine the sense in which the article would rationally be understood by those reading it.
Kahanamoku, supra, at 714.
Reading the headline and the body of the article as a whole, we believe that the publication is incapable of supporting the defamatory inference that appellant acted unethically. While the headline may raise questions in the minds of its readers, the article specifically states, "[u]nder the County's ehtics [sic] regulations, a government official acting on something in which his brother has a financial interest is not considered in conflict." (Emphasis added.)
*1149 As to the statement the "Board of Ethics initially called [the previous case] a conflict of interest," appellant alleges that the article accuses him of having voted on a matter while in conflict of interest; however, when read in connection with the rest of the sentence, "but after Fernandes appealed, the board reversed its opinion, saying it had been mistaken," (emphasis added) we believe that publication is incapable of supporting the defamatory inference urged by appellant. The article never accuses appellant of voting unethically, rather, it states that the board mistakenly thought appellant was in conflict but upon reconsideration, it realized that it was in error.
III.
We hold that the publication was incapable of bearing the defamatory meaning ascribed to it by appellant as a matter of law. Thus, the trial court did not err in granting appellees' motion for summary judgment.
Affirmed.
NOTES
[1] The initial inquiry in defamation cases is whether as a matter of law, "the communication is capable of bearing the meaning ascribed to it by the plaintiff and whether the meaning so ascribed is defamatory in character." Restatement (Second) of Torts § 614, Comment (b) (1976); Cahill v. Hawaiian Paradise Park Co., 56 Haw. 522, 543 P.2d 1356 (1975); Tagawa v. Maui Publishing Co., 49 Haw. 675, 427 P.2d 79 (1975); Baldwin v. Hilo-Tribune Herald, 32 Haw. 87 (1931).
Where the court finds that the statements are not susceptible to the meaning ascribed to it by plaintiff, the case should not be sent to the jury. Restatement (Second) of Torts § 614, Comment (b); Kernick v. Dardanell Press, 428 Pa. 288, 236 A.2d 191 (1967).
[2] Las Vegas Sun, Inc. v. Franklin, 74 Nev. 282, 329 P.2d 867 (1958) (Court held that headline may be construed apart from its accompanying article since public frequently reads only the headline); Schermerhorn, supra, 73 A.D.2d at 287, 426 N.Y.S.2d at 283 ("If [the headline] is not a fair index [of the article], then the headline must be examined independently to determine whether it is actionable under the general principles of libel. That the defamatory meaning of the headline may be dispelled by a reading of the entire article is of no avail to the publisher.").
[3] Fairbanks Publishing Co. v. Pitka, 376 P.2d 190 (Alaska 1962); Reardon v. News-Journal Co., 53 (3 Storey) Del. 29, 164 A.2d 263 (1960); Floyd v. Atlanta Newspaper, Inc., 102 Ga. App. 840, 117 S.E.2d 906 (1960); Ledger-Enquirer Co. v. Brown, 214 Ga. 422, 105 S.E.2d 229 conformed to 98 Ga. 462, 106 S.E.2d 61 (1958); Cook v. Atlanta Newspaper, Inc., 98 Ga. App. 818, 107 S.E.2d 260 (1959) ("In construing a newspaper article, the headline must be considered an integral part thereof."); Reed v. Albanese, 78 Ill. App. 2d 53, 223 N.E.2d 419 (1966); Cochran v. Indianapolis Newspaper, Inc., 178 Ind. App. 53, 372 N.E.2d 1211 (Ct.App. 1978) (A determination of whether an article implied a defamatory message "necessitates that the whole publication be considered... . The place and position of an item in a publication are to be considered ... as are the headlines of the articles." (Citation omitted.)); Steenson v. Wallace, 144 Kan. 730, 62 P.2d 907 (1936); Mulina v. Item Co., 217 La. 842, 47 So. 2d 560 (1950); Cross v. Guy Gannett Publishing Co., 151 Me. 491, 121 A.2d 355 (1956); Grossman v. Globe-Democrat Pub. Co., 347 Mo. 869, 149 S.W.2d 362 (1941); Painter v. E.W. Scripps Co., 104 Ohio App. 237, 148 N.E.2d 503 (1957); Bray v. Providence Journal Co., 101 R.I. 111, 220 A.2d 531, 535 (1966) ("[I]n considering whether the article was defamatory of plaintiff, both the headline and the body of the article were to be considered as one document."); Ross v. Columbia Newspapers, 266 S.C. 75, 221 S.E.2d 770 (1976); Annot., 95 A.L.R. 3d 660 (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1723910/ | 463 S.W.2d 738 (1971)
Ben BITELA, Appellant,
v.
The STATE of Texas, Appellee.
No. 43482.
Court of Criminal Appeals of Texas.
March 3, 1971.
*739 Chappell & McFall by John R. McFall, Lubbock, for appellant.
Blair Cherry, Jr., Dist. Atty., Ronald M. Jackson, Asst. Dist. Atty., Lubbock, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is possession of marihuana; the punishment, 25 years.
The appellant's first ground of error is that the court erred in permitting Officer Bessent to testify that he acted on information received from a third party, in violation of the hearsay rule set forth in Sowers v. State, 160 Tex. Crim. 456, 272 S.W.2d 119. The hearsay which we find was in response to questions asked by appellant's counsel. It was not until the next day after Bessent testified that the appellant made known to the court that he was dissatisfied with Bessent's answers. Clearly this objection came too late. Auten v. State, Tex.Cr.App., 429 S.W.2d 894.
His second ground of error is that the court admitted certain letters (written in Spanish) as proof of the existence of such letters and where they were found, but the English translation thereof was excluded. The State objected that they constituted hearsay because the author of said letters did not testify that he had written the same. The court was clearly correct in such ruling. Templeton v. State, Tex.Cr.App., 57 S.W. 831; Sligar v. State, 166 Tex. Crim. 365, 313 S.W.2d 613.
His third ground of error is that the court erred in permitting the state to ask "have you heard" questions of appellant's reputation witnesses about whether they had heard that the appellant killed a man in November of 1953; heard that he had been picked up for being drunk, and heard that he had been convicted for carrying a pistol. When such questions were asked there was no objection interposed. There is therefore nothing presented for review.
In his ground of error number three-A, appellant contends that he was denied due process when the State asked the following question: "You never shot *740 at anybody or killed anybody?" No objection was made when the question was asked, and we know of no Constitutional prohibition against asking such a question. Furthermore, appellant has failed to show that the prosecutor knew that he had not been convicted on the basis of this shooting. Therefore, nothing is presented for review.
Finding no reversible error, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319871/ | 172 Ga. App. 168 (1984)
322 S.E.2d 289
FREEMAN
v.
THE STATE.
68334.
Court of Appeals of Georgia.
Decided September 4, 1984.
Rehearing Denied September 20, 1984.
R. Michael Key, Michael G. Kam, for appellant.
Arthur E. Mallory III, District Attorney, for appellee.
SOGNIER, Judge.
Appellant was convicted in a bench trial of possession of cocaine, methaqualone, amobarbital and secobarbitol, and amphetamine, all violations of the Georgia Controlled Substances Act. On appeal he contends the trial court erred by denying his motion to suppress evidence, and by denying his motion to compel disclosure of the identity of the confidential informant involved in this case.
Based on information received from two reliable informants Sergeant Chipman of the LaGrange, Georgia Police Department obtained a search warrant for appellant's apartment from Marc Acree, Recorder's Judge Pro Tem. When the search warrant was executed, cocaine, methaqualone, secobarbitol, amobarbital and amphetamine were found in appellant's apartment.
1. Appellant contends it was error to deny his motion to suppress because Marc Acree was not a proper person with authority to issue a search warrant, making the warrant null and void, and even if he was authorized to issue a search warrant there was no probable cause to issue the warrant.
Marc E. Acree was appointed as Recorder's Court Judge Pro Tem by order of James T. Thomasson, Jr., Judge, Recorder's Court, City of LaGrange, Georgia. The search warrant in the instant case was issued by Acree acting pursuant to that appointment. At all times subsequent to his appointment Acree held himself out to the public as a Recorder's Judge Pro Tem and performed the duties of that office, including accepting guilty pleas, issuing search warrants, holding preliminary hearings, etc. In a long line of cases both the Supreme Court and this court have held that the fact that a person in ineligible to hold a particular office, or has failed to take an oath, does not prevent that person from being an officer de facto, and while de facto in such office, competent to act therein. Pool v. Perdue, 44 Ga. 454 (1871); Wright v. State, 124 Ga. 84 (1) (52 SE 146) (1905); Tarpley v. Carr, 204 Ga. 721 (1) (51 SE2d 638) (1949); Varnadoe v. Housing Auth., 221 Ga. 467, 471 (7) (145 SE2d 493) (1965); Westley v. State, *169 143 Ga. App. 344, 345 (1) (238 SE2d 701) (1977); Beck v. State of Ga., 144 Ga. App. 361, 363 (2) (241 SE2d 305) (1977).
In Westley, supra, we pointed out that the doctrine of the validity of acts of de facto officers is so well settled that it has been embodied in our code (OCGA § 45-2-1). As a de facto officer Acree's acts cannot be collaterally attacked and set aside. Little v. State, 157 Ga. App. 462, 463 (2) (278 SE2d 17) (1981). Thus, the search warrant was not null and void, and there is nothing in the record to indicate that Acree did not act in a neutral and detached manner in issuing the warrant.
As to probable cause to issue a search warrant, Sergeant Chipman received information from a confidential informant that he had seen a large amount of cocaine in appellant's apartment within the last six days. Chipman had also received information on several occasions over a period of six to seven months that appellant was dealing in large amounts of cocaine. Captain Raymond Anderson of the LaGrange Police Department received information from a second informant that known drug dealers had visited appellant's apartment several times a week during the preceding two weeks. Both Chipman and Anderson appeared before Acree; after satisfying himself of the reliability of the informants, and based on the other information contained in a sworn affidavit (both officers were placed under oath), Acree issued the warrant. "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a `substantial basis for ... conclud[ing]' that probable cause existed." Illinois v. Gates, ____ U. S. ____ (103 SC 2317, 76 LE2d 527). Applying this rule to the facts of the instant case, we believe that Acree had a substantial basis for concluding that probable cause existed to issue the warrant. Accordingly, it was not error to deny appellant's motion to suppress the evidence.
2. Appellant contends the trial court erred by denying his motion to compel disclosure of the identity of the informant because the informant participated in the offense, and because it is questionable if an informant actually existed.
Appellant's contentions are not supported by the transcript. In regard to the informant's participation in the offenses charged, both Chipman and Anderson were present when the search warrant was executed, and both testified that their respective informants were not present when the drugs forming the basis of these charges were found. As pointed out by appellant in his brief, the State does not have to *170 reveal the identity of an informant if he was a pure tipster, who neither participated in nor witnessed the offense. Thornton v. State, 238 Ga. 160, 165 (2) (231 SE2d 729) (1977); State v. Martin, 156 Ga. App. 554, 555 (275 SE2d 129) (1980). In Martin, as here, the informant's information merely helped establish probable cause to search appellant's residence. Appellant was charged with possession of the drugs found in the search, not with the sale of cocaine observed by the informant a few days earlier. Thus, the informant was a tipster and not a participant in the offenses charged; as such, his identity was absolutely privileged. Martin, supra.
Appellant's contention that the informant was non-existent is mere speculation, unsupported by the transcript. This court cannot consider factual representations in a brief which do not appear in the record. Gray v. State, 156 Ga. App. 117, 119 (3) (274 SE2d 115) (1980).
Judgment affirmed. McMurray, C. J., and Deen, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645841/ | 9 So. 3d 582 (2007)
CHARLES RONALD PORTER, JR.
v.
STATE.
No. CR-06-0422.
Court of Criminal Appeals of Alabama.
April 20, 2007.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319804/ | 322 S.E.2d 133 (1984)
312 N.C. 276
NEWS AND OBSERVER PUBLISHING COMPANY
v.
STATE of North Carolina, ex rel. Haywood STARLING, Director of The State Bureau of Investigation.
The COUNTY OF WAKE
v.
STATE of North Carolina, ex rel. Haywood STARLING, Director of The State Bureau of Investigation, in his official capacity.
Dr. John A. MURPHY
v.
STATE of North Carolina, ex rel. Haywood STARLING, Director of The State Bureau of Investigation, in his official capacity.
No. 1PA84.
Supreme Court of North Carolina.
November 6, 1984.
*134 Sanford, Adams, McCullough & Beard by H. Hugh Stevens, Jr., and Nancy Bentson Essex, Raleigh, for plaintiff-appellee, The News and Observer Pub. Co.
Rufus L. Edmisten, Atty. Gen. by Andrew A. Vanore, Jr., Sr. Deputy Atty. Gen., J. Michael Carpenter, and Daniel C. Higgins, Asst. Attys. Gen., Raleigh, for State.
MITCHELL, Justice.
The issues raised by this appeal concern the circumstances under which members of the public are to be given access to records of the State Bureau of Investigation [hereinafter "S.B.I."]. Our analysis of these issues rests upon our interpretation of N.C. G.S. 114-15 which provides that S.B.I. records and evidence are not public records but may be made available to the public "only upon an order of a court of competent *135 jurisdiction." Because we believe that the legislature intended the statute to be a limitation upon access to S.B.I. records, we reverse the decision of the Court of Appeals which affirmed the order of the trial court making S.B.I. records in the present case public. We hold that access to S.B.I. records by members of the public may be obtained only under one of the procedures already provided by law for discovery in civil or criminal cases.
The facts of this case are not in serious dispute. On March 4, 1981, The Honorable Randolph Riley, District Attorney for the Tenth Prosecutorial District, requested that the S.B.I. conduct a criminal investigation into the conduct and activities of Dr. John A. Murphy, covering the entire period during which Murphy served as Superintendent of The Wake County Schools. After a fourteen month investigation, an S.B.I. report containing information gathered during the criminal investigation was prepared and transmitted to District Attorney Riley on June 17, 1982. On October 24, 1982, Riley announced that he had reviewed the report and found no grounds for prosecution.
The petitioner-appellee, The News and Observer Publishing Company [hereinafter "News and Observer"] publishes two daily newspapers of general circulation. On August 26, 1982, the News and Observer petitioned the Superior Court, Wake County, under N.C.G.S. 114-15 for an order directing Haywood Starling, Director of the S.B.I., to release the S.B.I. records of the criminal investigation of Murphy. Similar petitions were filed on behalf of the County Commissioners of Wake County and on behalf of Murphy.
After a consolidated hearing on the petitions, the trial court entered an order directing that the S.B.I. records be made public. The order included findings stating that the public interest in having the information sought outweighed the interest of the S.B.I. in retaining its confidentiality. The State gave oral notice of appeal and requested a stay of the order pending appeal. The trial court granted the motion for stay.
The Court of Appeals affirmed the order of the trial court making the S.B.I. records public. The State petitioned this Court for a writ of supersedeas and for discretionary review. We allowed the petition for the writ of supersedeas on January 4, 1984 and the petition for discretionary review on February 2, 1984. Although the County Commissioners joined the News and Observer in appealing to the Court of Appeals, the County did not file a brief or otherwise participate in the appeal to this Court. Dr. Murphy has participated in neither appeal.
By several assignments of error, the State contends that the trial court erred in ordering that the S.B.I. records be made public. The State also argues that the opinion of the Court of Appeals sets a dangerous precedent which will severely hamper the ability of the State to investigate violations of criminal law. The News and Observer, on the other hand, contends that the Court of Appeals was correct in its holding that the decision to order disclosure of S.B.I. records was a matter within the trial court's discretion and could be reversed only upon a showing of abuse of discretion.
Under our statutory scheme, access to documents, papers and files in the possession of public agencies generally is controlled by the Public Records Act, N.C.G.S. 132-1 to 132-9, and by applicable rules of criminal and civil discovery. The Public Records Act defines "public records" as all documents, papers, letters, maps, books and other documentary material "made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions." N.C.G.S. 132-1. Such public records must be open for public inspection at reasonable times. N.C.G.S. 132-6.
Records of the S.B.I., however, are expressly exempted from classification as public records by N.C.G.S. 114-15, which states in pertinent part the following:
*136 All records and evidence-collected and compiled by the Director of the Bureau and his assistants shall not be considered public records within the meaning of G.S. 132-1, and following, of the General Statutes of North Carolina and may be made available to the public only upon an order of a court of competent jurisdiction.
We must decide in the present case what the legislature intended in allowing S.B.I. records to be "made available to the public only upon an order of a court of competent jurisdiction." In determining the legislative intent, we must first review common law and constitutional provisions for access to such records. This is so because common law and constitutional underpinnings of the right to access to such records are pertinent to the issue of legislative intent. See State v. Emery, 224 N.C. 581, 31 S.E.2d 858 (1944).
At common law neither criminal nor civil litigants had any absolute rights to pretrial discovery. In a number of cases this Court has clearly stated that no right of discovery in criminal cases was recognized at common law. E.g., State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977); State v. Hoffman, 281 N.C. 727, 190 S.E.2d 842 (1972); State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334, cert. denied, 377 U.S. 978, 84 S. Ct. 1884, 12 L. Ed. 2d 747 (1964). The Supreme Court of the United States has recognized, however, that the Constitution of the United States provides the defendant in a criminal case with rights to obtain certain types of evidence from the prosecution before trial. See generally, e.g., California v. Trombetta, ___ U.S. ___, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984); United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Since no defendant in a criminal case is involved here, we need not examine further the rights of criminal defendants to access to documents in the hands of the State.
In civil actions the common law provided no means by which a party could be compelled to produce documents in his possession as a part of discovery. 27 C.J.S. Discovery § 1 (1959). Equity provided the remedy of discovery. Id. See Vann v. Lawrence, 111 N.C. 32, 15 S.E. 1031 (1892); Coates Brothers v. Wilkes, 92 N.C. 376, 386 (1885). Such discovery was allowed only when it was incidental to other relief. Courts of equity never, however, granted discovery merely to gratify curiosity. 27 C.J.S. Discovery § 2 (1959). At common law, information given to the government concerning alleged violations of criminal law was treated as a type of state secret to which the public was not entitled to have access. 27 C.J.S. Discovery § 5 (1959).
Statutes have now replaced the former equitable rights of discovery and bills of discovery in equity have been abolished. Beck v. Wilkins-Ricks Co., 186 N.C. 210, 119 S.E. 235 (1923). Civil discovery is now governed by statute. The Supreme Court of the United States has indicated that rules governing discovery in civil cases are a matter of legislative grace. Seattle Times Co. v. Rhinehart, ___ U.S. ___, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984). Civil litigants then enjoy no absolute right to discovery of documents in the hands of others.
Another means which developed for gaining access to documents derived from the statutory and common law provisions for disclosure of public documents. At common law citizens had a right to inspect public documents, but the right was subject to numerous limitations. 76 C.J.S. Records § 35 (1952). The right was not absolute, and courts often held that it was limited to persons having a special interest. No right of inspection of public documents existed when inspection was sought merely to satisfy curiosity. Id.
In 1887 this Court recognized the public's right of access to public documents in a case involving inspection of records in the office of a register of deeds. We stated that all persons have the right to inspect public records without charge, but that a person who has no interest in the records "for the prosecution of his business" may not take copies without paying a fee. Newton *137 v. Fisher, 98 N.C. 20, 23, 3 S.E. 822, 824 (1887).
Even in jurisdictions recognizing the right of members of the public to inspect public documents, however, an exception preventing disclosure of police records generally has been recognized. See, e.g., Whittle v. Munshower, 221 Md. 258, 261, 155 A.2d 670, 671-72 (1959), cert. denied, 362 U.S. 981, 80 S. Ct. 1069, 4 L. Ed. 2d 1016 (1960); Lee v. Beach Publishing Co., 127 Fla. 600, 604, 173 So. 440, 442 (1937); People v. Wilkins, 135 Cal. App. 2d 371, 377-78, 287 P.2d 555, 559 (1955). Absent a statute requiring disclosure, police records generally are held confidential. See 66 Am.Jur.2d, Records and Recording Laws, § 27 (1973). Reports based on criminal investigations have been held not to be subject to disclosure because they are often based on hearsay and for reasons of confidentiality. 66 Am.Jur.2d, Records and Recording Laws, § 29 (1973); see generally Annot., 82 A.L. R.3d 19 (1978).
As can be seen from the foregoing, neither parties to civil or criminal cases nor members of the public seeking access to public documents enjoyed any absolute common law right to the discovery of documents or to access to public records. Any such rights were limited and were always subject to exceptions for records concerning police investigations.
Discovery in criminal and civil cases and access to public records are now governed in this State by statute. See, e.g., N.C.G.S. 15A-901 to 910 (criminal discovery); N.C.G.S. 132-1 to 132-9 (access to public records). When the General Assembly as the policy making agency of our government legislates with respect to the subject matter of any common law rule, the statute supplants the common law and becomes the law of the State. McMichael v. Proctor, 243 N.C. 479, 91 S.E.2d 231 (1956). Therefore, rights of access to S.B.I. records are no longer governed by common law principles but, instead, fall within the dictates of the applicable statutes.
The common law right of access to public records was made statutory in this State for the first time in 1935. 1935 N.C.Sess.Laws, ch. 265, § 1. Although this Court has not had occasion to interpret the Public Records Act, N.C.G.S. 132-1 to 132-9, it is clear that the legislature intended to provide that, as a general rule, the public would have liberal access to public records. Advance Publications v. City of Elizabeth City, 53 N.C.App. 504, 281 S.E.2d 69 (1981). Nevertheless, in N.C.G.S. 114-15 the General Assembly specifically provided that S.B.I. records and evidence "shall not be considered public records within the meaning of G.S. 132-1 and following." When as here the language of a statute is clear and unambiguous, there is no room for judicial construction, and courts must give the statute its plain meaning. In re Banks, 295 N.C. 236, 244 S.E.2d 386 (1978). It is clear that S.B.I. records are not public records and that access to them is not available under N.C.G.S. 132-1 to 132-9, the Public Records Act. Instead, access to S.B.I. records is controlled entirely by N.C.G.S. 114-15.
We turn then to the proper interpretation to be given N.C.G.S. 114-15. In doing so we note that every statute is to be interpreted in light of the Constitution and laws as they were understood at the time of enactment. State v. Emery, 224 N.C. 581, 31 S.E.2d 858 (1944). That part of N.C.G.S. 114-15 pertinent to the confidentiality of S.B.I. records was enacted in 1947. 1947 N.C.Sess.Laws, ch. 280, § 1. Since the right of public access to public records had been granted by statute in 1935, we construe N.C.G.S. 114-15 as intended to limit the broad scope of the earlier enacted Public Records Act. In determining the extent to which the legislature intended N.C.G.S. 114-15 to limit access to S.B.I. records, we must review the generally recognized reasons for prohibiting public access to such records.
Courts have given almost universal recognition to certain reasons for excluding police and investigative records from the operation of statutory rights of public access. *138 Reports based on criminal investigations are often exempt from disclosure because they are based on hearsay and consist largely of the opinions and conclusions of the investigators. See Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952). The need for protection of confidentiality of government informants and the protection of investigative techniques used by law enforcement agencies also have been generally accepted as justifying prohibitions on disclosure of police and investigative records. See Baugas v. Chief of Police, 371 Mass. 59, 354 N.E.2d 872 (1976). As stated in Aspin v. Department of Defense, 491 F.2d 24 (D.C.Cir.1973):
It is clear that if investigatory files were made public subsequent to the termination of enforcement proceedings, the ability of any investigatory body to conduct future investigations would be seriously impaired. Few persons would respond candidly to investigators if they feared that their remarks would become public record after the proceedings. Further, the investigative techniques of the investigating body would be disclosed to the general public.
491 F.2d at 30; see also Frankel v. SEC, 460 F.2d 813 (2d Cir.), cert. denied, 409 U.S. 889, 93 S. Ct. 125, 34 L. Ed. 2d 146 (1972). An equally important reason for prohibiting access to police and investigative reports arises from recognition of the rights of privacy of individuals mentioned or accused of wrongdoing in unverified or unverifiable hearsay statements of others included in such reports. In re Investigation by Attorney General, 30 N.C.App. 585, 227 S.E.2d 645 (1976); see also Houston Chronicle Publishing Co. v. Houston, 531 S.W.2d 177 (Tex.Civ.App.1975).
We assume that the legislature considered the foregoing reasons for denying access to police records, as well as the common law and statutory history concerning such access, when it enacted the statute declaring S.B.I. records not to be public and, thereby, exempted them from disclosure under the Public Records Act. We find further support for our conclusion that, in passing N.C.G.S. 114-15, the legislature intended to limit access to S.B.I. records to those procedures already available at law from the fact that even District Attorneys were given only very limited access to such records. The District Attorneys who have the constitutional and statutory duty to prosecute criminal cases in this State have a right of access to S.B.I. records, but only if such records concern persons or investigations in their respective districts. N.C.G.S. 114-15. Therefore, we hold that N.C.G.S. 114-15 grants no new right whatsoever to access to S.B.I. records. The statute makes it clear that S.B.I. records are not public records, and access to them by parties, other than District Attorneys, may be permitted "only upon an order of a court of competent jurisdiction" when those parties are otherwise entitled by statute to access. We further hold that such access is available only under our statutory procedures for discovery in civil or criminal cases. See, e.g., Blumkin v. New York, 183 Misc. 31, 47 N.Y.S.2d 492 (1944).
To the extent that our opinion in State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334, cert. denied, 377 U.S. 978, 84 S. Ct. 1884, 12 L. Ed. 2d 747 (1964) can be read as implying that our trial courts are given unfettered discretion by N.C.G.S. 114-15 to make S.B.I. records and evidence public, that opinion is expressly disapproved. The discretion possessed by our trial courts in this regard is limited to that necessary to the performance of their duties in applying the statutory procedures for civil and criminal discovery.
The News and Observer did not appear before the Superior Court as a defendant in a criminal case. Therefore, it was not entitled to discovery under the procedures applicable in criminal cases. See generally N.C.G.S. 15A-902 to 910. The rules permitting discovery in civil cases also were unavailable to the News and Observer. See generally N.C.G.S. 1A-1, Rules 26 to 37. Those rules are designed to allow discovery only when the information sought is "reasonably calculated *139 to lead to the discovery of admissible evidence" to be used in the trial of the action in which discovery is sought. See N.C.G.S. 1A-1, Rule 26(b)(1). In the instant case, the News and Observer petitioned the Superior Court seeking as its sole relief the disclosure of the S.B.I. records of the investigation of Dr. Murphy. It is clear that the News and Observer did not seek the S.B.I. records on the ground that they were reasonably calculated to lead to the discovery of admissible evidence to be used in the trial of any pending action. Instead, it sought access to the S.B.I. records only due to its desire to know and publish the contents. Although Rule 26 is to be construed liberally, it does not allow one person "to roam at will in the closets of the other." Willis v. Power Co., 291 N.C. 19, 34, 229 S.E.2d 191, 200 (1976).
We have construed N.C.G.S. 114-15 as providing any member of the public a right of access to S.B.I. records, but only when such person is entitled to access under the statutory procedures for discovery in criminal or civil cases. The News and Observer had no right to discovery under any of those procedures. Therefore, we must reverse the holding of the Court of Appeals which affirmed the order of the trial court requiring the Director of the S.B.I. to disclose the S.B.I. records of the investigation of Dr. Murphy.
The News and Observer further argues, however, that even if it is not entitled to access to the S.B.I. records under N.C.G.S. 114-15, it or any member of the public has a constitutional right of access to them. It argues that the First Amendment goes beyond the protection of the press and requires the government to allow public access to such records when they are of legitimate public interest. In support of this argument, the News and Observer relies upon several decisions of the Supreme Court of the United States holding that the press and members of the public have a right of access to places or events traditionally open to the public. See, e.g., Press Enterprise Co. v. Superior Court,___ U.S. ___, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (jury voir dire); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) (child sex offense victim's testimony); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (criminal trials).
Although we recognize the general right of the public to have access to information about the actions of public agencies, the legislature still may properly limit the right of public access in appropriate cases. We take guidance from cautionary language in a concurring opinion by Justice Brennan in Richmond Newspapers. In discussing cases involving access to public records, Justice Brennan stated that:
Read with care and in context, our decisions must therefore be understood as holding only that any privilege of access to governmental information is subject to a degree of restraint dictated by the nature of the information and the countervailing interest in security or confidentiality.
448 U.S. at 586, 100 S.Ct. at 2832 (Brennan, J., concurring). "The right to speak and publish does not carry with it the unrestrained right to gather information." Zemel v. Rusk, 381 U.S. 1, 17, 85 S. Ct. 1271, 1281, 14 L. Ed. 2d 179 reh. denied, 382 U.S. 873, 86 S. Ct. 17, 15 L. Ed. 2d 114 (1965). See generally Saxbe v. Washington Post Co., 417 U.S. 843, 94 S. Ct. 2811, 41 L. Ed. 2d 514 (1974) (restrictions on access to prisons); Pell v. Procunier, 417 U.S. 817, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974) (same).
Courts in several States, when faced with constitutional challenges similar to those raised here by the News and Observer, have upheld restrictions on disclosure of police reports similar to the restrictions on disclosure of S.B.I. records we have found N.C.G.S. 114-15 to include. See, e.g., New Bedford Standard Times Publishing Co. v. Clerk of Third District Court, 377 Mass. 404, 387 N.E.2d 110 (1979); Houston Chronicle Publishing Co. v. Houston, 531 S.W.2d 177 (Tex.Civ.App.1975); Black Panther Party v. Kehoe, 42 Cal. App. 3d 645, 117 Cal. Rptr. 106 (1974); Annot. 82 A.L. *140 R.3d 19 (1978). We share their view and hold that the restrictions we have found to be embodied in N.C.G.S. 114-15 limiting disclosure of S.B.I. records do not violate any rights guaranteed by the First Amendment to the Constitution of the United States.
For the foregoing reasons, the decision of the Court of Appeals is reversed. The case is remanded to the Court of Appeals with instructions to vacate the order of the trial court requiring the disclosure of S.B.I. records.
REVERSED and REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319903/ | 244 S.C. 160 (1964)
135 S.E.2d 836
Raymond SANDERS, Respondent,
v.
Ellis MacDOUGALL, Director, Board of Corrections, State Penitentiary, South Carolina, Appellant.
18198
Supreme Court of South Carolina.
April 15, 1964.
*161 Messrs. Daniel R. McLeod, Attorney General, and Edward B. Latimer, Assistant Attorney General, of Columbia, for Appellant.
Messrs. Robert E. Kneece and Kneece & Kneece, of Columbia, for Respondent.
*162 April 15, 1964.
BRAILSFORD, Justice.
This is an appeal by the State from an order of the Richland County Court directing that the petitioner, Raymond Sanders, be released from imprisonment in the State Penitentiary.
On March 24, 1959, petitioner commenced the service of a sentence theretofore imposed upon him. This sentence was for a term of five (5) years, "* * * provided that upon the service of three (3) years that the balance of the aforesaid sentence be and the same is hereby suspended and that the said defendant is hereby placed on probation for a period of five (5) years. * * *"
After being confined under this sentence until December 1, 1960, petitioner was granted a parole by the Probation, Parole and Pardon Board. The "Certificate of Parole" specified that the prisoner "be paroled effective 1st day of December, 1960, * * * until the expiration of his maximum sentence, to wit March 24, 1964." The conditions of parole, printed on the back of this certificate, were accepted by petitioner, and he was released from confinement pending good behavior and subject to the conditions of parole.
On September 4, 1963, the Board issued an order purporting to revoke petitioner's parole and directing that he be returned to the "South Carolina Penitentiary to serve the remainder of the original sentence imposed by the Court. * * *" Thereupon, the petitioner sought and was granted a Writ of Habeas Corpus, which resulted in the *163 order appealed from. The Court held that the Board had no authority to order petitioner reimprisoned after the expiration of the three-year term which his sentence required him to serve and while he was entitled to freedom under a suspended sentence, unless otherwise ordered by the Court.
A prisoner upon release on parole continues to serve his sentence outside the prison walls. The word parole is used in contra-distinction to suspended sentence and means a leave of absence from prison during which the prisoner remains in legal custody until the expiration of his sentence. Crooks v. Sanders, 123 S.C. 28, 115 S.E. 760, 28 A.L.R. 940; Ex Parte Anderson, 191 Or. 409, 229 P. (2d) 633, 230 P. (2d) 770, 29 A.L.R. (2d) 1051. Every paroled prisoner remains in the legal custody of the Board and may at any time be imprisoned on its order. Section 55-614, Code of 1962. The Board is the sole judge of whether or not a prisoner has violated his parole, and is authorized to cancel any order for parole, whereupon the prisoner shall "have the status of an escaped convict, be arrested without warrant and be required to serve the part of the sentence that remains unserved." Section 55-616, Code of 1962. There is no statutory requirement that notice be given or a hearing held on the question of parole revocation.
Under Section 55-591, Code of 1962, any court of record with criminal jurisdiction is authorized to suspend the execution of a sentence, in whole or in part, and place the defendant on probation. In imposing a sentence of imprisonment, the court may require the service of a portion of the term and suspend the execution of the remainder thereof, placing the defendant on probation. Moore v. Patterson, 203 S.C. 90, 26 S.E. (2d) 319, 147 A.L.R. 653. The Probation, Parole and Pardon Board has no jurisdiction to revoke the suspension of a sentence and place it in execution. This can be done only by a court of competent jurisdiction before which the defendant has been *164 taken on a warrant charging a violation of the conditions of probation. Section 55-595, Code of 1962. The revocation of the suspension of the execution of a sentence involves the exercise of judicial discretion. State v. White, 218 S.C. 130, 61 S.E. (2d) 754.
The unsuspected portion of petitioner's sentence expired not later than March 24, 1962. Had he never been paroled, he would have been entitled to a discharge by that date. An order revoking parole simply restores a defendant to the status he would have occupied had this form of leniency never been extended to him. The effect of such a revocation "does not exceed or transcend the effect of the original sentence." Johnson v. Walls, 185 Ga. 177, 194 S.E. 380.
Petitioner's parole necessarily expired with the expiration of the unsuspected portion of his sentence, because, thereafter, there was no sentence in execution which could be served outside the prison walls, or which required his confinement when the Board revoked its prior action.
The suspended portion of petitioner's sentence never having been put in execution by a court of competent jurisdiction, and the unsuspected portion of said sentence having been duly served, the Court properly ordered that petitioner be discharged from custody.
Affirmed.
TAYLOR, C.J., and MOSS, LEWIS and BUSSEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320035/ | 253 Ga. 467 (1984)
322 S.E.2d 233
FLORIDA PUBLISHING COMPANY
v.
MORGAN.
41255.
Supreme Court of Georgia.
Decided October 31, 1984.
Hull, Towill, Norman & Barrett, David E. Hudson, for appellant.
Michael J. Bowers, Attorney General, David C. Will, Assistant Attorney General, for appellee.
MARSHALL, Presiding Justice.
This case draws into question the constitutionality of two Georgia statutory provisions which relate to juvenile-court proceedings. One of these provisions excludes the public from delinquency, deprivation, and unruliness hearings in juvenile court. OCGA § 15-11-28 (c). The other provision prohibits the name or picture of a child under juvenile-court jurisdiction for the first time from being made public by any news media except as authorized by court order. OCGA § 15-11-60 (g) (1). The trial court entered an order upholding the constitutionality of the former provision and refusing to rule on the constitutionality of the latter provision. For reasons which follow, we reverse.
On or about February 8, 1984, two youths Morris Lewis (13 years old) and Clyde McVeigh (12 years old) commandeered the Cumberland Island ferry and sailed it to Nassau County, Florida. They were apprehended and arraigned in Duval County, Florida, and transferred to juvenile court in Camden County, Georgia. Their names and photographs were published in the Florida Times Union and the Jacksonville Journal, which are distributed in Camden County and throughout southeast Georgia. These two newspapers are *468 published by the Florida Publishing Company, and Gray Thomas is a reporter for the Florida Publishing Company.
On February 14, a juvenile-court hearing was held in Camden County Juvenile Court concerning these youths. Gray Thomas sought to attend the hearing, but he was barred by the juvenile-court judge under the authority of OCGA §§ 15-11-28 (c) and 15-11-60 (g) (1), supra. He was also denied the right to inspect the case files after the hearing had been completed.
OCGA § 15-11-28 (c) provides as follows: "The general public shall be excluded from hearings involving delinquency, deprivation, or unruliness. Only the parties, their counsel, witnesses, persons accompanying a party for his assistance, and any other persons as the court finds have a proper interest in the proceeding or in the work of the court may be admitted by the court. The court may temporarily exclude the child from the hearing except while allegations of his delinquency or unruly conduct are being heard." OCGA § 15-11-60 (g) (1) provides that: "The name or picture of any child under the jurisdiction of the court for the first time shall not be made public by any news media, upon penalty of contempt under Code Section 15-11-62, except as authorized by an order of the court." In line with OCGA § 15-11-60 (g) (1), supra, OCGA § 15-11-60 (g) (2) provides: "It shall be mandatory upon the judge of the juvenile court to release the name of any child who is under the jurisdiction of the court for a second or subsequent time. No person, firm, or corporation shall be guilty of any offense by making public the name or picture of any such child."
The Florida Publishing Company responded by filing a petition for mandamus against the juvenile court judge in the Camden Superior Court. In the petition for mandamus, the plaintiff requests that the previously cited statutory provisions be declared unconstitutional insofar as they require all juvenile-court hearings to be closed to the public and that the juvenile-court judge be ordered to show cause why he should not be required to open for public inspection the case files in controversy here.
After conducting a hearing, the superior court ruled that OCGA § 15-11-28 (c), supra, is constitutional in its closure of juvenile hearings from public view or inspection. Since no contempt order has been issued against the defendant for its publication of the names of the juveniles here, the court refused to consider the constitutionality of OCGA § 15-11-60 (g) (1), supra. This appeal follows.
The remainder of this opinion can best be divided into: (1) Judicial Decisions Concerning Constitutional Questions Raised, and (2) Our Holdings.
*469 Judicial Decisions Concerning Constitutional Questions Raised.
(a) One of the seminal decisions involving juvenile-court proceedings is certainly In re Gault, 387 U.S. 1 (87 SC 1428, 18 LE2d 527) (1967). There it was held that where the proceedings may result in the incarceration of the juvenile offender, certain due process requirements must be observed. In the course of rendering its decision, the Court noted that historically there have been wide differences between the procedural rights accorded to adults and those of juveniles. Although this difference in treatment ostensibly has been for the juveniles' protection, the Gault court found it to be debatable whether this Star-Chamber type secrecy of juvenile-court proceedings has in fact redounded to the juveniles' benefit. Finding the claim of secrecy in juvenile court and police records concerning juveniles to be "more rhetoric than reality," the Court held, "In any event, there is no reason why, consistently with due process, a State cannot continue, if it deems it appropriate, to provide and to improve provision for the confidentiality of records of police contacts and court action relating to juveniles." 387 U. S. at 25.
(b) In Cox Broadcasting v. Cohn, 420 U.S. 469 (95 SC 1029, 43 LE2d 328) (1975), it was held that the state may not, consistent with the First and Fourteenth Amendments, impose sanctions on the accurate publication of a rape victim's name from judicial records that are themselves open to public inspection.
However, in the course of rendering Cox, the court noted: "If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information. Their political institutions must weigh the interests in privacy with the interests of the public to know and of the press to publish." 420 U. S. at 496. (Footnote omitted.)
(c) Although Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102 (99 SC 2667, 61 LE2d 399) (1979), can be described as a narrow decision turning on its facts, it applies a rule that "State action to punish the publication of truthful information... seldom can satisfy constitutional standards."
In Smith, a West Virginia statute made it a crime for a newspaper (but not other news media) to publish, without written approval of juvenile court, the name of any youth charged as a juvenile offender even when, as in Smith, the name was lawfully obtained by monitoring police band radio frequencies and interviewing witnesses.
The asserted state interest in the closure of the hearing was the protection of the anonymity of the juvenile offender in order to further his or her rehabilitation. As to these interests, the Court responded, "The sole interest advanced by the State to justify its criminal *470 statute is to protect the anonymity of the juvenile offender. It is asserted that confidentiality will further his rehabilitation because publication of the name may encourage further antisocial conduct and also may cause the juvenile to lose future employment or suffer other consequences for this single offense. In Davis v. Alaska, 415 U.S. 308 [94 SC 1105, 39 LE2d 347] (1974), similar arguments were advanced by the State to justify not permitting a criminal defendant to impeach a prosecution witness on the basis of his juvenile record. We said there that `(w)e do not and need not challenge the State's interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender.' Id. at 319, [94 SC at 1112]. However, we concluded that the State's policy must be subordinated to the defendant's Sixth Amendment right of confrontation. Ibid. The important rights created by the First Amendment must be considered along with the rights of defendants guaranteed by the Sixth Amendment. See Nebraska Press Assn. v. Stuart, 427 U. S. at 561 [96 SC at 2803]. Therefore, the reasoning of Davis that the constitutional right must prevail over the state's interest in protecting juveniles applies with equal force here." Smith, 443 U. S., supra at 104.
(d) In Gannett Co. v. DePasquale, 443 U.S. 368 (99 SC 2898, 61 LE2d 608) (1979), the immediate question for decision concerned closure by the trial judge of a pretrial suppression hearing in a murder trial at the behest of the defendant, and without objection by the prosecuting attorney. The closure was found to be necessary to protect the defendant's right to a fair trial.
Five members of the Court had no trouble in ruling that although the Sixth Amendment supposes that criminal trials will be open to the public, no right of access belongs to the public (at least under the facts of that case). However, the majority did suggest that a right of access exists under the First Amendment, but it was held that in ordering closure the trial judge properly balanced this right of access against the defendant's right to a fair trial.
Four concurring opinions differentiated between pretrial suppression hearings and the trial itself. Under this plurality view, a study of English and Colonial history shows that the public (with the news media as its agents or surrogates) has the right of access to criminal trials, either under the First or Sixth Amendments. However, as to pretrial hearings to suppress evidence, closure of the hearing may be acutely necessary to prohibit the dissemination of prejudicial, inadmissible evidence, and such hearings are creatures of the twentieth century wholly unanticipated by the framers of the Constitution. Thus, under this view, the closure of pretrial suppression hearings to the public cannot be considered contrary to the history of the Bill of Rights.
*471 (e) In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (100 SC 2814, 65 LE2d 973) (1980), the Court, in a three-four-two decision, held that a trial court in Virginia had acted in violation of the First Amendment when it excluded the press and public from a murder trial. Distinguishing Gannett Co. v. DePasquale, supra, the Court held that, "[a]bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public." 448 U. S. at 581. The Court found the presumptive openness of trials to be an attribute of the judicial systems of England and Colonial America.
(f) In Globe Newspapers v. Superior Court of Norfolk County, 457 U.S. 596 (102 SC 2613, 73 LE2d 248) (1982), the Court, in a five-one-three decision, held that under the First Amendment there does exist a right of access to criminal trials on the part of the press and general public.
Globe Newspapers involved a Massachusetts statute requiring trial judges, at trials for specified sexual offenses involving victims under the age of 18, to exclude the press and general public from the courtroom during the testimony of the victim. The Court stressed that the criminal trial historically has been open to the press and general public, and it elaborated upon the myriad ways in which the openness of criminal trials is an attribute which serves to make the criminal justice system function appropriately under our system of democratic government.
The Court acknowledged that the right of access to criminal trials, though of constitutional status, is not absolute. However, the Court held that where the state attempts to deny the right of access to criminal trials in order to inhibit the disclosure of sensitive information, "it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." 457 U. S., supra at 607.
The state's interests advanced to support the Massachusetts statute were the encouraging of minor victims of sex crimes to come forward and give accurate testimony, as well as the protection of minor victims from embarrassment and trauma. As to the latter interests, the Court found that the Massachusetts statutory scheme did not support it, because the victim's testimony became a public record. As to the former interest, the Court found that it did not justify exclusion of press and public from courtrooms at all sex crimes trials where a victim under the age of 18 is testifying, since the trial judge can determine on a case-by-case basis whether closure is necessary to protect the welfare of the minor victim.
(g) In R. W. Page Corp. v. Lumpkin, 249 Ga. 576 (292 SE2d 815) (1982), we explored the parameters of authority possessed by a Georgia superior court under our state Constitution in ordering closure of a criminal trial, as well as pre-trial and post-trial hearings. We noted *472 that, "[a]lthough the sixth amendment to our federal constitution (Code Ann. § 1-806) affords the accused a right to a public trial, our state constitution point-blankly states that criminal trials shall be public. Const. of Ga. 1976, Art. I, Sec. I, Par. XI (Code Ann. § 2-111)." 249 Ga. at 578 (3) (Footnote omitted.). We thus held that a "strong presumption [favors] the general rule, which is that in Georgia, the criminal trial itself, and all its consequent hearings on motions (pre-trial, mid-trial and post-trial) shall be open to the press and public on equal terms unless the defendant or other movant is able to demonstrate on the record by `clear and convincing proof' that closing the hearing to the press and public is the only means by which a `clear and present danger' to his right to a fair trial or other asserted right can be avoided." Id. at 579 (4).
(h) In Press-Enterprise Co. v. Superior Court of California, Riverside County, 52 Law Week 4113 (decided Jan. 18, 1984), the Court found that voir dire proceedings are a phase of a criminal trial which are presumptively open under the Richmond Newspapers and Globe Newspapers decisions. The Court held that this "presumption of openness [had not been] overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." 52 Law Week at 4115-4116.
Our Holdings.
1. We reach the issue of the constitutionality of OCGA § 15-11-60 (g) (1), supra, because, even though no contempt order has been issued here, the question concerning the statute's constitutionality has been raised, and the resolution of the question is of importance to the administration of our criminal-justice system. Therefore, the issue will be decided even though it may be technically moot. See R. W. Page, supra, and cits.; Globe Newspapers, supra, and cits.
2. The holdings, primarily in the Richmond Newspapers case, Globe Newspapers case and R. W. Page case, create a presumption that criminal trials will be open to the public. As we have previously stated, part of the rationale of these holdings is that, at English common law and in Colonial America, trials have been open to the public for reasons which, throughout history, have fostered and continue to foster a role for the judiciary appropriate to our scheme of constitutional government.
However, in their relatively brief history, it would appear that juvenile proceedings have been closed to the public. Therefore, we are unable to conclude that there is any historically-based constitutional presumption of openness applicable to juvenile-court proceedings. This, however, does not mean that the absolute closure of juvenile-court *473 hearings passes constitutional muster.
From the various cited cases, we conclude that, consistent with the Constitution, the state may create a rule that delinquency, deprivation, and unruliness hearings in juvenile court are presumed closed to the public (and press). However, for constitutional reasons, this presumption cannot be conclusive. The public and/or press must be given an opportunity to show that the state's or juveniles' interest in a closed hearing is not "overriding" or "compelling."
In this case, the appellant concedes that, "It is not likely that the public or the press would have any interest in attending 99 out of 100 [juvenile] cases"; that "it is unnecessary in juvenile proceedings to determine closure or openness of the proceeding on a case-by-case basis"; and that "the burden in juvenile cases could be placed on the public-press to first request the right to attend."
We, therefore, hold that where a member of the public or press institutes a judicial proceeding to require the opening of a juvenile hearing, the court must in an expeditious manner give the public or press an opportunity to present evidence and argument to show that the state's or juveniles' interest in a closed hearing is overridden by the public's interest in a public hearing. The juvenile court's ruling on this question must be composed of "findings in writing articulate enough for appellate review." Richmond Newspapers, 448 U. S. at 581, supra; Press Enterprise, 52 U. S. Law Week, supra, at 4115-4116.
3. As to the constitutionality of OCGA § 15-11-60 (g) (1), supra, we agree with the opinion of the Attorney General that it was invalidated by Smith v. Daily Mail, 443 U.S. 97, supra; Op. Atty. Gen. 80-11.
Judgment reversed. All the Justices concur, except Weltner, J., who dissents.
WELTNER, Justice, dissenting.
I dissent, because I believe the sounder approach is to have but one rule for criminal cases and juvenile matters alike, and that being the rule handed down in R. W. Page Corp. v. Lumpkin, 249 Ga. 576 (292 SE2d 815) (1982).
I point out that the extension of R. W. Page to juvenile matters is in keeping with the importance that our state has placed upon the openness of judicial proceedings. Further, inasmuch as there is no potential panel of veniremen to be tainted by undue publicity, open *474 courtrooms present even less danger in juvenile matters than in criminal prosecutions.
As the majority seems to concede that no more than one out of a hundred juvenile matters would attract public attention (majority opinion, p. 473), it would seem more feasible that the procedure of R. W. Page should be adopted here, rather than the new rule as specified by the majority. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320031/ | 602 P.2d 307 (1979)
43 Or.App. 73
STATE of Oregon, Respondent,
v.
Virginia KINCAIDE, Appellant.
Nos. 77 3049-77 3051; CA 12703.
Court of Appeals of Oregon.
Argued and Submitted September 5, 1979.
Decided November 5, 1979.
*308 J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. *309 With him on the brief was Gary D. Babcock, Public Defender, Salem.
F. Douglass Harcleroad, Asst. Dist. Atty., Eugene, argued the cause for respondent. With him on the brief was J. Pat Horton, Dist. Atty., Eugene.
Before JOSEPH, P.J., and LEE and RICHARDSON, JJ.
JOSEPH, Presiding Judge.
Defendant was convicted in a trial by jury of three counts of theft in the first degree and three counts of forgery in the first degree. The theft convictions were merged into the forgery convictions for sentencing.
On appeal defendant assigns as errors: (1) the admission of hearsay evidence; (2) denial of a motion for judgment of acquittal on the ground of insufficient evidence; (3) admission of a document containing information not voluntarily given by defendant; (4) admission of deeds not relevant to any material issue; and (5) failure to impose only a single sentence for two of the theft and two of the forgery convictions.
Defendant took into her Michigan home and cared for an elderly woman, Ida Ratzel, from the fall of 1972 to August 4, 1974. There was evidence that "Aunt Ida," as she was called, was losing her mental faculties and was unable to care for herself. Defendant moved to Eugene in August, 1974, and placed Aunt Ida in a Michigan home for elderly women until March 29, 1976, when defendant transferred her to a retirement center in Eugene. On October 14, 1974, defendant, posing in Eugene as Ida Ratzel, cashed a check for $9,000 from the sale of securities owned by Ida, which defendant had requested to be sold by a broker. $8,600 of that amount was deposited in a checking account opened by defendant as Ida Ratzel on the same date. On October 31, 1974, defendant deposited by check $7,800 from that account into her own checking account. There was evidence that defendant used those funds to purchase real property in her own name. Over two years later, in January, 1977, a check for $2,002.30 and payable to Ida Ratzel was deposited into a joint account opened by defendant in her and Ida's names. That check represented the surrender proceeds from a 20-year endowment life insurance policy issued to Ida. Defendant admitted at trial that she used that money for her family's living expenses.
The three indictments, each containing counts of forgery and theft, arose respectively out of the insurance proceeds transaction, the securities sale and the $7,800 transfer to defendant's account. The evidence showed that the signatures on all three checks in Ida's name were made by defendant. At trial defendant claimed that she had been authorized by Ida to use her name and manage her financial affairs and that Ida had given her the funds that she had appropriated for her own use. At the time of trial Ida Ratzel was determined to be incompetent and was not allowed to testify.
During the state's case-in-chief, defendant objected to testimony of Ida's brother-in-law that in late July or August, 1974, Ida had said, as she clutched a black box containing some of her assets, "Virginia [i.e., defendant] is trying to take my money." The court struck the testimony at that time, gave a cautionary instruction to the jury and denied a motion for mistrial.[1] The court later admitted the same testimony for the purpose of rebutting the defense of authorization, after defendant had testified that she had acted with Ida's knowledge and consent. Also admitted then was similar testimony by the same witness that during the same week Ida said, "They're trying to take my money."
In an in camera hearing the court commented on its ruling:
"I'm not going to tell the jury that the Court is reversing a prior ruling because the Court isn't reversing a prior ruling. At the time of the first ruling the State was in its case in chief, and had the testimony come in it would have come in *310 as substantive evidence of a lack of authority or consent, and the witness can testify on rebuttal for what value, if any, it may have for impeachment of the defendant's testimony which, generally, is that during these periods of time Ida Ratzel was talking to her about the management of her money and expressing a desire that the defendant manage that money. It would come in not as substantive evidence but as possible impeachment. So, the evidentiary context is quite different. I wouldn't want to tell the jury that I've reversed myself or that they can now consider this evidence in the case, nor do I see any necessity for a cautionary instruction, any more than for any other rebuttal testimony when it's offered."
The challenged statements were out-of-court declarations offered to show that Ida was unlikely to have authorized defendant to handle her money. Whether or not the statements were true, their utterance by Aunt Ida was independently relevant as evidence of her distrustful state of mind concerning her money. They were not offered to prove the truth of any fact asserted, so they were not hearsay in that context. Sheedy v. Stall, 255 Or. 594, 597, 468 P.2d 529 (1970); Marr v. Putnam, 213 Or. 17, 25, 321 P.2d 1061 (1958).
In this case the statements were admissible to show that Ida was of a disposition not to have allowed others, including defendant, to manage her money. The statements and their corroboration demonstrated a distrustful state of mind that had probative value in rebutting the defense of authorization. There is no doubt, however, that a jury instruction should have been given to limit the utilization of the testimony to establishing the state of mind of Aunt Ida at that time. Although in some cases such an instruction may be unhelpful,[2] "[g]ood limiting instructions are vital where the possibility exists that the jury will consider the testimony for an improper purpose." United States v. Brown, 160 U.S.App.D.C. 190, 209, 490 F.2d 758, 777 (D.C. Cir.1973). In this case, it is likely that the jury would have considered the declarations for their broader meaning because neither in the instructions nor in final argument was a limited purpose discussed before the jury. Despite defense counsel's indication, and agreement by the prosecutor, that a cautionary instruction was appropriate, the court made clear in its remarks, supra, that it would not grant such a request. It was error not to have given a limiting instruction once the evidence was admitted in rebuttal. See State v. Farnam, 82 Or. 211, 252-53, 161 P. 417 (1916).
The error was unlikely to have changed the result of the trial. There was substantial and convincing evidence of defendant's guilt. Or.Const. Amended Art. VII, § 3; State v. VanHooser, 266 Or. 19, 25-26, 511 P.2d 359 (1973). Defendant's sole defense was that her transactions were authorized by Ida. Her only corroboration was the testimony of her children. She had posed as Ida in several face-to-face financial transactions. At a conference concerning Ida's will, neither defendant nor Ida told the attorney preparing it anything about defendant taking over Ida's financial affairs, although it was on the very date when the first specific authorization allegedly occurred. Defendant was unable to corroborate any of the subsequent long distance phone calls with Ida in which she claimed Ida had authorized transactions. Moreover, the prosecution did not rely heavily on the statements in final argument. See State v. VanHooser, supra at 26, 511 P.2d 359. An inference of guilt from the hearsay aspect of the testimony was overshadowed by an array of more compelling and specific evidence that defendant had forged checks and appropriated the funds to her own use.
Our determination that there was substantial and convincing evidence of defendant's guilt disposes of the contention that there was insufficient evidence to support the verdict.
*311 On the third assignment of error, the defendant contends that the court erred in admitting into evidence a security release form containing information furnished by defendant to secure her release from custody after arrest on the ground that the statement was involuntarily compelled. The document was offered by the state to show a discrepancy between defendant's admission at trial that she had used Ida's name and her failure when the form was being completed by a security officer to give that name as one other than her own that she had used in the past. The evidence showed that defendant did not remember the interview with the security release officer, that defendant may have been upset at the time but that the person assisting with the form would have attempted to calm her down, that she was told that completing the form was a prerequisite to release and that defendant was not threatened. Nor did she refuse or hesitate to complete the form. The judge ruled the document admissible.
The standard for review of the factual determination of the circumstances of voluntariness is that "if the evidence sustains such historical factual findings they will not be disturbed by [the] court." Ball v. Gladden, 250 Or. 485, 487-88, 443 P.2d 621, 622 (1968). Under that rule, if explicit findings are not made, the presumption is that facts were decided in a manner consistent with the ruling. Insofar as it is a matter of factual determination, the evidence in this case supports a finding of voluntariness.
This issue poses the further question whether Miranda warnings were required in this setting. Miranda v. Arizona, 384 U.S. 436, 444, 81 S. Ct. 1601, 16 L. Ed. 2d 694 (1966). In State v. Whitlow, 13 Or. App. 607, 613, 510 P.2d 1354, rev. den. (1973), we held that a request for defendant's name after his arrest was a question asked for a "standard administrative purpose" as the first step in booking, and hence was not interrogation within the ambit of the Miranda rule. In State v. Gill, 24 Or. App. 541, 545, 546 P.2d 786, 787 (1976), we relied upon the following language in McCormick, supra, 329, § 152:
"Where the police action is merely routine gathering of information to be used for standard administrative purposes, the warnings have not been required because the police action was neither intended nor reasonably likely to elicit incriminating information."
Under the circumstances here the questions required to be answered were neither intended nor reasonably likely to elicit incriminating information. Hence, no warnings were required to be given, and the security release form was properly admitted.
Defendant took exception to the admission into evidence of deeds conveying real property of defendant to her defense attorney. They were adduced by the state to show conversion of Ida Ratzel's funds to defendant's own use. The documents were relevant to the theft charges and were properly admitted.[3]
Finally, defendant asserts that two of the forgery convictions should have been merged because they involved the same money.[4] Actually, defendant argued for an even greater merger in the trial court:
"[Defense counsel]: The defendant takes the position that only one sentence is appropriate; that the thefts merge with the forgeries and that there is only one total offense, and that only one sentence is applicable. Therefore, for the record, the defendant objects to any sentence other than one sentence, Your Honor."
Although defendant's position on appeal is more limited, we regard the objection made in the trial court sufficient to preserve the *312 issue. See State v. Applegate, 39 Or. App. 17, 591 P.2d 371, rev. den. (1979). The two forgery counts that defendant now focuses on arose from these facts:
1. On October 14, defendant opened a checking account in the name of Ida Ratzel, endorsed Ida Ratzel's name on a $9,000 check payable to Ida Ratzel, and deposited $8,600 of that check into the fictitious account.
2. On October 31, defendant signed Ida Ratzel's name to a $7,800 check drawn on that fictitious account and payable to herself. Defendant deposited this check in her own account.
On these facts it is not even clear that the October 31 transaction involved a separate forgery. An element of forgery is an "intent to injure or defraud." ORS 165.007(1). There is no apparent separate or independent intent to defraud on October 31 as distinguished from a continuation of the same intent to defraud that existed on October 14. Cf. State v. Welch, 264 Or. 388, 505 P.2d 910 (1973).
In any event, we conclude that the October 14 and 31 forgeries should be merged into a single conviction and sentence. While it is unlikely that any single rule is ever going to govern all possible merger situations, there is a general principle that emerges from State v. Cloutier, 286 Or. 579, 596 P.2d 1278 (1979), and State v. Gilbert, 281 Or. 101, 574 P.2d 313 (1978): A defendant is subject to only a single conviction and sentence for conduct directed to the accomplishment of a single criminal objective that causes a single injury to a single victim. That principle is sufficient to dispose of this case. The October 14 and October 31 transactions involve the same victim, Ida Ratzel. Defendant had the single criminal objective of appropriating and withholding Ida Ratzel's money. Most importantly here, defendant's conduct caused a single injury Ida Ratzel's loss of $9,000 on October 14; defendant's subsequent transfer of some of that money to another account perpetuated the injury done on October 14, but it did not in any way cause a new or different injury.
By contrast, defendant's additional forged endorsement over two years later, in January, 1977, of a $2,002.30 check payable to Ida Ratzel constituted a separate offense. The temporal distance between the October, 1974, and January, 1977, transactions is too attenuated to support the inference that both involved a single criminal objective. State v. Cloutier, supra, 286 Or. at 595, 596 P.2d 1278. Moreover, although there was a single victim, the later transaction inflicted a new and different injury on Ida Ratzel the appropriation of an additional sum of her money.
Defendant is liable for entry of convictions and imposition of sentences for two counts of forgery.
Reversed and remanded for resentencing.
NOTES
[1] No error is assigned to the denial of the motion for mistrial.
[2] E.g., Shepard v. United States, 290 U.S. 96, 104, 54 S. Ct. 22, 78 L. Ed. 196 (1933).
[3] The additional argument in defendant's brief that defense counsel was somehow prejudiced by introduction of this evidence was not properly raised at trial, and we do not consider it.
[4] The Supreme Court has pointed out that "merger" is a term "best reserved for the narrow situation when the completion of one offense necessarily includes commission of acts sufficient to constitute [violations] of another statute." State v. Cloutier, 286 Or. 579, 586, 596 P.2d 1278, 1281 (1979). The usage here then is not strictly correct, but it avoids a wordy circumlocution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320124/ | 226 Kan. 704 (1979)
602 P.2d 1344
STATE OF KANSAS, Appellee,
v.
DEREA L. MARKS, JR., a/k/a LARRY MARKS, Appellant.
No. 50,491
Supreme Court of Kansas.
Opinion filed December 1, 1979.
G. Edmond Hayes, of G. Edmondson Hayes, P.A., of Wichita, argued the cause and was on the brief for the appellant.
Stuart W. Gribble, assistant district attorney, argued the cause, and Robert T. Stephan, attorney general, Vern Miller, district attorney, and Jim Turner, assistant district attorney, were on the brief for the appellee.
The opinion of the court was delivered by
PRAGER, J.:
This is a direct appeal in a criminal prosecution in which the defendant, Derea L. Marks, Jr., was convicted of eight felonies. Two separate cases containing multiple counts were tried together. In case 77 CR 1832, the defendant Marks was charged with felony murder, which allegedly occurred in the course of an aggravated robbery of the Wichita Public Scales Station in Wichita on July 18, 1977. Count 2 of that case charged the defendant with the aggravated robbery. The defendant Marks was later charged in case 77 CR 2540 with six separate felonies, consisting of four counts of aggravated robbery (K.S.A. 21-3427) and one count each of burglary (K.S.A. 21-3715) and felony theft (K.S.A. 21-3701[a]).
The charges stem from a burglary and a series of robberies in Wichita during July and August of 1977, beginning with the burglary of the OTASCO store on July 7, 1977, when several handguns were taken, including a .32-caliber pistol later connected with the defendant. Counts 1 and 2 of case 77 CR 2540 charged the defendant with burglary and theft of the OTASCO store. At the trial defendant fully admitted his participation in that burglary. On July 9, 1977, the defendant and a juvenile associate, Willie Richardson, robbed the Universal Service Station in Wichita. For this robbery, the defendant was charged in count 3 of case 77 CR 2540. At the trial defendant admitted his participation in that robbery. On July 13, 1977, defendant and Willie Richardson robbed the Hi-Quality Service Station in Wichita. This robbery was the basis for count 4 of case 77 CR 2540.
On July 18, 1977, defendant and Richardson entered the Wichita Public Scales Station allegedly to commit another robbery. The State claimed that the operator of the station, Virgil C. George, was murdered in the course of the robbery. As noted above, this homicide and robbery are the charges contained in counts 1 and 2 of case 77 CR 1832. On July 21, 1977, defendant *706 and Richardson robbed the Quik Chik in Derby, Kansas. This robbery was the basis for count 5 of case 77 CR 2540. At the trial the defendant admitted his participation in that crime. Finally, on August 1, 1977, the defendant and Richardson robbed the Sears Store in Twin Lakes Shopping Center in Wichita. This robbery was the basis for the charge contained in count 6 of case 77 CR 2540. As noted above, the two cases were consolidated for trial and the defendant was convicted on all eight counts contained in the two informations. The defendant has appealed to this court claiming trial errors. We will consider each point separately.
I. Denial of Defendant's Motion to Suppress the Gun as Illegally Seized Evidence.
Prior to the trial, the defendant filed a motion to suppress as evidence a .32-caliber pistol taken by police officer Rod Stovall from the defendant's possession on August 6, 1977. This handgun was an important piece of evidence in the case because, following its seizure by officer Stovall, tests made at the Wichita police forensic department established it to be the same gun used in the robbery and shooting death of Virgil C. George at the Wichita Public Scales Station on July 18, 1977. A Jackson v. Denno hearing was held on the motion to suppress prior to the trial. The undisputed evidence established the following facts: On August 6, 1977, police officer Stovall was driving his police vehicle in the area of the 900 block of North Volutsia in Wichita. He noticed defendant Marks and Richardson seated in defendant's car parked on the side of the street. As the officer pulled alongside the vehicle, he thought the two young men in the car matched the general description of two men, mentioned in an earlier police dispatch, who were wanted in connection with criminal activities. The police dispatch had described the two wanted men as black males, in their late teens or early twenties, with medium afro haircuts, and weighing somewhere in the area of 150 to 160 pounds. The police officer testified that he stopped his vehicle and walked over to the parked car to "check them out." The police officer admitted that he had no information indicating that the individuals in the car were committing any crime or that they had committed any crime. The police officer did not know either one of the two individuals personally and, as they were seated in the car, he could not observe their bodies from their shoulders down. He could not see whether they were fat or slender. At the *707 time the officer approached the vehicle, he did not feel that his life was in danger. He had no knowledge of any contraband in the vehicle and was not concerned about the two men fleeing or destroying any contraband. The police officer had in mind only that the two men in the car fit the general description of the two individuals mentioned in the police dispatch who were wanted by the police.
As officer Stovall approached the car, the defendant was in the driver's seat. Richardson was seated to his right. The officer asked the defendant for his name and some identification. In response to the request, the defendant lifted up an arm rest in the middle of the front seat between him and Richardson. When defendant lifted up the arm rest, the officer observed a handgun lying on the seat. The officer saw the defendant reach in the direction of the gun. The officer then drew his own handgun from its holster and ordered defendant not to touch the gun. The officer then seized the gun and arrested the defendant for illegal possession of a weapon in violation of the Wichita city ordinances. Defendant Marks was taken to the police station and later released on his own recognizance. The police retained the gun until the ballistics test had been completed. It was determined that the gun was one of several stolen in the July 7, 1977, burglary of the OTASCO store. The defendant was never charged with a municipal ordinance weapons violation. On August 9, 1977, the defendant was charged in case 77 CR 1832 with felony murder and aggravated robbery of the Wichita Public Scales Station.
Following the presentation of this evidence by the State, the defendant's motion to suppress the gun as evidence was denied by the district court. The trial judge, in denying the motion to suppress, stated:
"THE COURT: As to the motion to suppress, a very interesting motion, extremely interesting case. And I certainly agree with Mr. Hayes when he says this was not a stop-and-frisk. It wasn't. It wasn't an arrest. And it wasn't a search. It was simply an officer asking, according to his testimony, if two individuals who he said might be ... someone he was looking for could show identification. It was not an order to get out of the car or produce their identification. There was no search. And once the weapon was exposed as a result of that request, the officer, of course, was within his rights to seize it for his own protection, if for no other reason.
"There is nothing that I know of in the law that prevents an officer from asking a citizen a question.
"Now it may well be that the citizen might say, if there was no basis for it (Do *708 you have a driver's license?), the citizen might say, `Well, it isn't any of your business.' Then if the officer tried to force himself, we might have another point. But the only evidence in this case is, he said, `Have you got any identification?' ...
"There is no evidence of any other response, except the sudden exposure of a weapon.
"The motion is overruled."
At the trial the gun was admitted into evidence over defendant's objection.
Defendant Marks contends that the trial court erred in denying his motion to suppress evidence because the police officer obtained possession of the firearm in violation of defendant's right to be free from unreasonable searches and seizures guaranteed by the Fourth Amendment to the United States Constitution. The defendant maintains, in substance, that because officer Stovall had insufficient information to suspect the defendant and Richardson of any criminal activities, past or present, the officer was acting unreasonably in approaching defendant's car and requesting defendant's name and identification. The defendant then reasons that, because the officer had no right to approach the defendant and ask for identification, the firearm which he observed when the defendant lifted up the arm rest could not be lawfully seized under the plain view doctrine.
As noted above, the district court held the officer's request to the defendant for identification to be a proper police investigation. We agree with the trial court. It was not a "stop and frisk" under K.S.A. 22-2402, which requires a "reasonable suspicion" that a crime has been committed. Defendant's argument that the description of the two men in the police dispatch was insufficient to support probable cause for an arrest or the reasonable suspicion required for a stop and frisk is inapplicable in this case. Officer Stovall did not approach the defendant to arrest him or to search him. He approached the defendant because he thought defendant might be one of the two young men described in the police dispatch. Officer Stovall's actions were purely investigative and, in our judgment, not improper. While the description of two young, black men of medium height, with medium afros, is admittedly vague, to preclude an officer from asking the name and identification of an individual falling within such a general description would make criminal investigations impossible.
In Brown v. Texas, ___ U.S. ___, 61 L.Ed.2d 357, 99 S.Ct. *709 2637 (1979), a defendant was convicted under a Texas statute making it a crime for a person to intentionally refuse to report his name and address to a police officer, who has lawfully stopped the person and requested such information. The defendant was asked by a police officer for identification which he refused to provide. He was then arrested, charged, and convicted of a violation of the Texas statute. The United States Supreme Court held that the defendant's conviction under the Texas statute should be set aside, since the stopping of the defendant by the police and requiring him to identify himself violated the Fourth Amendment. The court reasoned that since the officer admittedly stopped the defendant purely to obtain his identification and had no reason to suspect that the defendant was engaged in criminal conduct, the stopping was an unreasonable seizure of his person. Brown makes it clear that when a police officer, without arresting an individual, stops and restrains him for the purpose of having him identify himself, that constitutes a seizure of his person subject to the Fourth Amendment. It is stated in the opinion that whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person, and the Fourth Amendment requires that the seizure be reasonable. United States v. Brignoni-Ponce, 422 U.S. 873, 45 L.Ed.2d 607, 95 S.Ct. 2574 (1975). In Delaware v. Prouse, 440 U.S. 648, 59 L.Ed.2d 660, 99 S.Ct. 1391 (1979), it was held that a police officer did not have an unfettered discretion to stop an automobile to conduct a license check, unless the stopping was pursuant to a plan embodying explicit limitations on the conduct of individual officers.
For purposes of the Fourth Amendment, the reasonableness of a seizure of a person that is less intrusive than a traditional arrest depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers. Dunaway v. New York, 442 U.S. 200, 60 L.Ed.2d 824, 99 S.Ct. 2248 (1979); Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968). We have concluded that the holding in Brown v. Texas is not applicable to the case now before us. Here officer Stovall did not stop the automobile in which the defendant and Willie Richardson were seated; the automobile was parked at the time the officer first observed it. Officer Stovall did not approach the defendant to arrest him or to *710 search him. There was no stopping or detention of the defendant and, hence, there was no seizure. Under all of the factual circumstances, we hold the police officer had the right to approach the defendant in the car for the purpose of questioning defendant in the course of a criminal investigation. State v. Holthaus, 222 Kan. 361, 564 P.2d 542 (1977); State v. Boone, 220 Kan. 758, 556 P.2d 864 (1976). Since the officer had a right to be where he was at the time he observed the gun and the defendant's hand moving toward it, the plain view doctrine applied and the gun could be seized without a warrant.
We hold that the police officer acted reasonably in seizing the weapon. The knowledge he had of the general description of the two young men wanted by the police, coupled with the sudden appearance of a pistol in a car occupied by two youths and the movement of defendant's hand toward the weapon, clearly placed the officer in a position of great peril. There was no time for the police officer to get a search warrant. Officer Stovall testified that he immediately arrested the defendant for unlawful possession of a weapon. It is not clear from the record whether the arrest was for the carrying of an unconcealed loaded weapon or the concealment of an unloaded weapon, both of which are violations of the Wichita city ordinances. The fact that the record does not disclose whether or not the weapon was loaded or whether the defendant was ever tried for a violation of a city ordinance does not render the seizure of the weapon by the officer unlawful. Under all of the circumstances, we find that officer Stovall had reasonable grounds for believing that a weapons violation had been committed. It cannot be denied that exigent circumstances were present, requiring officer Stovall to act promptly to protect himself. We hold that the trial court did not err in denying defendant's motion to suppress the firearm as evidence in the case.
II. Failure to Instruct the Jury on Self-defense, Voluntary Manslaughter, and Involuntary Manslaughter.
As his second point on the appeal, the defendant contends that the trial court committed reversible error in failing to instruct the jury on self-defense, voluntary manslaughter, and involuntary manslaughter. In considering this point, we should first consider the testimony presented at the trial and the theories of both the prosecution and the defense.
*711 In proof of its case, the State presented the testimony of Willie Richardson. Richardson testified on direct examination that he and defendant conspired to rob the Wichita Public Scales Station; that they entered the station for that purpose; that they waited until the last customer had left the premises; and that at that time the defendant pulled a gun, demanded money from Virgil George, and started to walk behind the counter. According to Richardson, George told defendant he was not supposed to be behind the counter and apparently started to reach for a drawer whereupon Richardson ran from the station to the defendant's car and got down between the seats. A few minutes later, the defendant ran to the car and they drove away. On cross-examination by defense counsel, Richardson admitted he had given contradictory versions of what happened in a prior statement to the police department, at his own trial in juvenile court, and at the preliminary hearing in this case. Richardson admitted that in a statement he gave to the police department, he stated that George said, "Nigger, get out of my place," and that he saw George hit the defendant with a cane. Richardson further admitted that he had previously stated that there was no prior agreement to rob the scales station and that he and defendant had entered the scales station only to purchase some pop. Another witness, Eddie Bryson, testified that, at a time when he and Willie Richardson were in jail, Richardson had told him that he and his partner went to the place to rob the man, the man raised his cane, and his partner "Larry" shot the man and then they left. It was the State's theory of the case that the defendant Marks-had shot Virgil George in the course of an armed robbery.
The theory of the defense, at all times during trial, was that defendant was not present when Virgil George was killed. The defendant testified that he had known Virgil George five or six years prior to the crime and that he and Richardson had stopped at the scales station to get something to drink because it was hot. He talked with Virgil George, stayed a little longer, and then left to go to an auto parts store to get a part for his car. Defendant denied that he knew what happened to George after he left. He denied that he had a gun. He later saw Richardson and noticed that Richardson had a knot and bruise on his head and also on his forearm. Defense witness Jerry Marks testified that Richardson had stated on the evening of the homicide that the man was *712 hitting him with a cane, the man did not stop, and he shot him. Jerry Marks and Mavis Scott also testified they saw bruises on Richardson's head and forearm which defendant testified were not there before Richardson entered the scales station.
At the time of his death, Virgil George was disabled by a hip injury and had to use a cane to get around. Ronald Eggleston of the Wichita police department testified that, after the homicide, Virgil George's cane was broken with parts scattered around the scales station. Marie McDonald testified that Virgil George was not abusive to people but sometimes used the word "niggers." Lester Shotwell testified that George had a temper and would sometimes use profanity to express his anger.
Defendant contends that this evidence was sufficient to justify an instruction on self-defense. As noted above, at the trial the defense took a firm position that defendant was not present when George was killed. Defendant contends on appeal that, assuming he was present and shot George, the shooting might have been in self-defense and, therefore, it was reversible error for the court to fail to give a self-defense instruction to the jury. In support of his position, the defendant relies on State v. Smith, 161 Kan. 230, 167 P.2d 594 (1946), where this court held that the trial court erred in not giving a self-defense instruction, notwithstanding the fact the accused denied she committed the act which caused the death. We have concluded that the evidence presented in this case was not sufficient to require an instruction on self-defense. We recognize that K.S.A. 21-3211 authorizes a person to use force against an aggressor to the extent it appears reasonably necessary to defend himself against the aggressor's imminent use of unlawful force. However, it is well settled that a person cannot use greater force than is reasonably necessary to resist the attack and, furthermore, that self-defense is not available to a person who is committing or attempting to commit a forcible felony. See K.S.A. 21-3214; State v. Cates, 223 Kan. 724, 729, 576 P.2d 657 (1978).
In this case, it is important to note that, in his prior statement to the police, Richardson stated that George made the statement, "Nigger, get out of my place" and raised his cane and started hitting the defendant. The words purportedly used by George do not indicate an intent to inflict bodily harm but only to compel the defendant to leave the premises. Here the use of a gun by a young man to repel an attack by a disabled 65-year-old man with a cane *713 would be excessive as a matter of law. It was, therefore, not improper for the trial court to fail to instruct the jury on self-defense on the basis of prior statements made by Richardson, the truth of which he categorically repudiated at the trial.
The defendant next asserts that it was reversible error for the trial court to fail to instruct on voluntary and involuntary manslaughter. Under K.S.A. 21-3107(3), a trial court is required to instruct on any lesser crime when there is evidence introduced under which the defendant might be reasonably convicted of the lesser offense. Such an instruction is required even though such instructions have not been requested or have been objected to. Ordinarily, in a felony-murder case, where the evidence of the commission of the felony is clear and uncontroverted, no instruction on lesser degrees of homicide should be given. State v. Bradford, 219 Kan. 336, 342, 548 P.2d 812 (1976). Where, however, the evidence of the underlying felony is weak or inconclusive, instructions on lesser or included offenses should be given if the evidence would support a conviction on such lesser crimes. State v. Foy, 224 Kan. 558, 582 P.2d 281 (1978).
The defendant maintains that the evidence set forth above was sufficient to require the trial court to instruct on the lesser crimes of voluntary and involuntary manslaughter. We do not agree. We have concluded that the evidence in the record before us was not sufficient to require instructions on the lesser offenses of voluntary or involuntary manslaughter. It must be emphasized that Willie Richardson's trial testimony was that he and defendant Marks entered the scales station with the intent to commit a robbery, that defendant demanded money from Virgil George, and that defendant shot George when he reached toward a drawer. The defendant's testimony was that he was not present when the victim, Virgil George, was shot. The testimony of his witnesses tended to show that it was Willie Richardson who shot Virgil George after the defendant Marks had left the premises. There was no testimony by any witness to justify or support a conclusion that the defendant was guilty of either voluntary or involuntary manslaughter. If Virgil George was killed by either defendant Marks or by Willie Richardson in carrying out a conspiracy to commit a robbery then the defendant would be guilty of felony murder. If the jury should conclude that there was no prior conspiracy to commit a robbery and that Richardson *714 shot George on his own, defendant Marks could not be held criminally responsible for the acts of Willie Richardson since Marks would not be liable as an aider or abettor.
We further have concluded that the evidence brought forth on the cross-examination of Willie Richardson that he had made contradictory statements to the police, at his own trial, and at the preliminary hearings was not sufficient to require instructions on voluntary and involuntary manslaughter. In order for the evidence to be sufficient to require instructions on lesser degrees of the homicide, the testimony supporting such instructions must be offered either by the State or by the defense for the purpose of proving what events occurred at the time the homicide was committed. Contradictory statements of a witness which are offered only for the purpose of destroying his credibility and not as positive evidence to prove the matters contained in the statements are not alone sufficient to require an instruction on the lesser degrees of homicide. In all of the cases where we have required instructions on the lesser degrees of homicide in a felony-murder case, there has been positive testimony of either the defendant or another witness offered for the express purpose of proving a particular version of how the homicide occurred. This was the situation in Bradford, in State v. Boyd, 216 Kan. 373, 532 P.2d 1064 (1975), and in each of the other cases where the rule has been applied.
It should be noted that in this case the trial court gave an instruction on second-degree murder over the objection of the defendant. Defense counsel objected to an instruction on second-degree murder because he contended there was no evidence to support it. We agree with defense counsel that an instruction on second-degree murder was unnecessary as beyond the scope of the evidence. Although the trial court's instruction on second-degree murder was not required by the court, the giving of such an instruction was error favorable to the defendant. He was not prejudiced by it and hence cannot now complain. State v. Warden, 224 Kan. 705, 708, 585 P.2d 1038 (1978), cert. denied 441 U.S. 948 (1979).
To summarize, under the credible evidence presented in the record, the defendant was either guilty of a felony murder committed during the course of a planned robbery either by himself or Willie Richardson, or the defendant was not guilty. The issue *715 was properly submitted to the jury who found defendant guilty of aggravated robbery and felony murder. We find no error in the instructions given to the jury by the trial court in this case.
III. Admission of Lineup Identification.
As his third point, the defendant contends that the trial court erred in overruling his objection to evidence of identification of defendant as the robber, based upon a lineup where defendant's counsel was not notified and afforded an opportunity to be present. As noted above, the defendant was charged in a complaint filed on August 9, 1977, with the felony murder of Virgil C. George and the aggravated robbery of the Wichita Public Scales Station. This charge was filed shortly after the weapon taken from defendant's possession by officer Stovall was tested and determined to be the same gun which fired the bullet killing Virgil C. George. Following the filing of case 77 CR 1832, G. Edmond Hayes was retained as counsel to represent defendant Marks. On November 9, 1977, Mr. Hayes appeared on defendant's behalf at his preliminary hearing. On November 15, 1977, a lineup was held concerning the robberies with which the defendant was subsequently charged in case 77 CR 2540. At the lineup, the defendant was viewed and identified by the victims as one of the robbers in the Universal, Hi-Quality, and Sears robberies. Mr. Hayes was not notified of the lineup. On November 16, 1977, defendant was charged with the other robberies in case 77 CR 2540. These two cases were subsequently consolidated for trial.
Defendant contends that because of the consolidation, defendant's right to counsel in the second case attached with the initiation of prosecution in the first case. Failure to notify or provide counsel for the subsequent lineup is challenged as violating defendant's constitutional right to counsel. The defendant makes no showing that the lineup was unduly suggestive, nor does he allege any prejudice. We hold this point to be without merit. The right to counsel at a post-indictment, pretrial lineup is limited to lineups for identification by witnesses to the crime for which he is presently charged. The right does not extend to lineups conducted in the investigation of other independent crimes, even though the defendant is in custody on the prior charge. In State v. Estes, 216 Kan. 382, 532 P.2d 1283 (1975), the defendant was free on bond for a previous armed robbery. Subsequently, a lineup was held and he was identified as a perpetrator of another independent *716 robbery of which he was convicted in the case then on appeal. The defendant raised the issue that he had been denied representation of counsel at the lineup. The contention of denial of representation by counsel at the lineup was rejected, since, at the time of the lineup, the defendant by his own testimony was not under arrest on the charges for which the lineup was conducted. The same issue was presented in Boyd v. Henderson, 555 F.2d 56 (2nd Cir.1977), which held that the Sixth Amendment right to counsel at a lineup attaches only when there has been a formal charge with respect to the particular crimes as to which the suspect is being identified. The fact that the defendant was represented by counsel in connection with other unrelated crimes was irrelevant. We have concluded that defendant's claim of error concerning the pretrial lineup identification must be rejected.
IV. Failure to Compel Completion of Discovery and Permitting Late Endorsement of a Witness.
As his fourth assignment of error, defendant claims that he was surprised and prejudiced by the late endorsement of Eddie Bryson as a witness for the State. The defendant also contends that his right to the effective assistance of counsel was violated by the trial court's failure to compel production of the criminal records of State witnesses prior to the trial. These arguments center around the testimony of Eddie Bryson, who was in the Youth Holding Center in Wichita with Willie Richardson when Willie Richardson was awaiting trial for the killing of Virgil C. George. During that period, Richardson told Bryson that Virgil George had raised his cane and that the defendant Marks had shot George. Bryson gave a signed statement to this effect to a Wichita detective. At Richardson's previous trial in juvenile court, Bryson denied the truth of the statement. In the interim, Eddie Bryson had decided to change his testimony and did so at the trial of the defendant Marks. We note from the record that Bryson was endorsed as a State's witness two days before he actually testified and further that defendant's counsel had in his possession the criminal records of both Richardson and Bryson prior to their taking the stand. In the cross-examination of both Bryson and Richardson, defense counsel thoroughly questioned them as to their past criminal records. We cannot say that the defendant has shown that he was prejudiced in any way, either by the late endorsement of Eddie Bryson as a State witness or by the delay in *717 delivery of the criminal records of Bryson and Richardson. Defendant's counsel was afforded an opportunity to interview Bryson before he testified. Since no prejudice has been shown, we reject the defendant's fourth point as a basis for reversal of the case.
V. Failure to Give a Limiting Instruction on the Limited Purpose of Prior Crimes Evidence.
Defendant's fifth point of error is that the trial court erred in failing to give a limiting instruction pertaining to the testimony of Willie Richardson as to his and the defendant's intent to rob an audio parts store with a pistol. At the trial, Richardson testified that he and the defendant had conspired to rob an audio parts store and that, once inside the store, Richardson observed a pistol in the defendant's pocket, but that they did not attempt to rob the store as the defendant thought there were too many people coming and going. The defendant and Richardson then proceeded to the Wichita Public Scales Station where the homicide of Virgil C. George occurred. Defendant argues that, if the defendant was not charged with conspiracy to rob the audio parts store, the evidence was admissible only under K.S.A. 60-455 and, therefore, a limiting instruction was required under State v. Roth, 200 Kan. 677, 680, 438 P.2d 58 (1968). From a reading of the record we have concluded that the testimony was properly admissible independently of K.S.A. 60-455, as part of the res gestae of the crime of aggravated robbery of Virgil C. George at the Wichita Public Scales Station. The purpose of this evidence was to show the relationship between the defendant and Richardson just prior to the time they entered the Wichita Public Scales Station. It was also relevant to show that the defendant Marks, not Richardson, had possession of the weapon prior to the time of the scales station robbery. The evidence was clearly admissible independently of K.S.A. 60-455. See State v. Martin, 208 Kan. 950, 952, 495 P.2d 89 (1972).
VI. Trial Court's Refusal to Grant Defendant's Motion for a Mistrial or a New Trial.
The defendant's sixth and final point on the appeal is the trial court's refusal to grant either a mistrial or a new trial because cumulative errors denied him a fair trial. We have considered each of the claims of error and we cannot find that the trial court abused its discretion in failing to grant a mistrial or a new trial. *718 State v. Bell, 224 Kan. 105, 108, 577 P.2d 1186 (1978), and State v. Rhodes, 219 Kan. 281, 283, 546 P.2d 1396 (1976).
The judgment of the district court is affirmed.
FROMME, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320190/ | 447 S.E.2d 558 (1994)
191 W.Va. 623
The FIRST NATIONAL BANK OF BLUEFIELD, a National Banking Association, Plaintiff Below, Appellant,
v.
Andrew L. CLARK and William J. Sheppard, Defendant Below, Appellee.
No. 22083.
Supreme Court of Appeals of West Virginia.
Submitted May 11, 1994.
Decided July 18, 1994.
*559 Robert B. King, Stephen B. Farmer, King, Allen & Arnold, Charleston, for appellant.
Carl L. Fletcher, Jr., Neva G. Lusk, Spilman, Thomas & Battle, Charleston, for appellee.
PER CURIAM:
This is an appeal by The First National Bank of Bluefield, a national banking association, from an order of the Circuit Court of Mercer County, West Virginia, ignoring a jury verdict awarding the bank prejudgment interest in a contract action and granting the appellees a judgment notwithstanding the verdict on the prejudgment interest question. On appeal, the bank claims that the circuit court erred in granting the judgment notwithstanding the verdict. After reviewing the facts and the questions presented, this Court agrees. Accordingly, the judgment notwithstanding the verdict of the Circuit Court of Mercer County is reversed.
In 1981, the appellees in the proceeding, Andrew L. Clark and William J. Sheppard, requested that the Mercer County Commission provide them with assistance in financing a townhouse project which they desired to build in Princeton, Mercer County, West Virginia. The commission, on December 22, 1981, decided to grant the request and authorized the issuance of a $1,000,000.00 industrial development revenue bond to assist with the construction of the townhouse project.
After the Mercer County Commission authorized the issuance of the industrial revenue bond, Andrew L. Clark contacted the appellant, The First National Bank of Bluefield, to determine whether the bank was interested in purchasing the industrial development revenue bond. In subsequent discussions, the bank expressed an interest in purchasing the bond, contingent upon certain conditions and providing that the size of the project was increased from twenty to twenty-five townhouses. Among other conditions, the bank required Mr. Clark and Mr. Sheppard, or other outside parties, to inject $625,000.00 in capital into the project.
During the discussions, it appears that Andrew L. Clark and William J. Sheppard proposed to raise the $625,000.00 which the bank required be injected into the project by selling twenty-five limited partnership shares for $25,000.00 each. They also agreed to purchase any limited partnership shares which they could not sell. In a subsequent letter dated August 31, 1983, to assure the bank that the $625,000.00 would be injected into the project, Mr. Clark and Mr. Sheppard, acting as general partners of the partnership, formally entered into a commitment to purchase all limited partnership shares not sold.
The bank subsequently did purchase the $1,000,000.00 revenue bond, and the appellees, Andrew L. Clark and William J. Sheppard, undertook to construct the townhouse project as a limited partnership operation.
Following the bank's purchase of the revenue bond, Mr. Clark and Mr. Sheppard failed to sell nineteen of the twenty-five limited partnership shares, and, contrary to their assurances to the bank, they failed to purchase the unsold shares. Then, due to inadequate capitalization, they were unable to complete the project. As a result, the project became delinquent in the payment of the note securing the $1,000,000.00 revenue bond, and on April 7, 1986, the bank, as holder of the revenue bond, foreclosed on the project.
Following the foreclosure, the bank sued Mr. Clark and Mr. Sheppard for $625,000.00 or, in the alternative, for specific performance of their agreement to purchase the limited partnership shares and to apply the *560 proceeds resulting for such purchase toward the payment of the project note and bond. The complaint specifically alleged that:
Plaintiff says that defendants have not complied with their agreement to purchase all limited partnership shares or units not sold in Townhouses at a price of $25,000.00 per unit; that although being requested to do so by plaintiff, defendants have refused to purchase such shares and that there are now twenty-five (25) shares of Townhouses which have not been sold and which defendants are obligated to purchase.
After the filing of a number of documents in the action, the bank moved for summary judgment, and, on January 7, 1987, the circuit court granted the motion. In its memorandum opinion, the circuit court concluded that, as a matter of law, Mr. Clark and Mr. Sheppard had personally obligated themselves to purchase $625,000.00 in limited partnership shares, if not otherwise sold, and to inject the proceeds into the project. The court also, in effect, found that six limited partnership units had been sold and that, contrary to their agreement, Mr. Clark and Mr. Sheppard had failed to purchase the remaining $475,000.00 in shares.
Mr. Clark and Mr. Sheppard appealed the circuit court's decision to this Court, and, on April 21, 1989, this Court, in First National Bank of Bluefield v. Clark & Sheppard, 181 W.Va. 494, 383 S.E.2d 298 (1989), reversed the circuit court's decision to grant summary judgment and ruled that the case should be remanded for trial before a jury so that the jury could determine whether Mr. Clark and Mr. Sheppard's undertaking to purchase the unsold limited partnership shares had been undertaken in their personal capacities.
The case was tried on remand before a jury in January, 1993, and on January 25, 1993, the jury concluded that Mr. Clark and Mr. Sheppard had personally obligated themselves to purchase the unsold limited partnership shares for the $475,000.00. The jury returned a verdict for the bank on the breach of contract claim for actual damages of $475,000.00. The jury also awarded the bank prejudgment interest on the $475,000.00 at the rate of 10% per annum.[1]
Subsequent to the return of the jury's verdict, the circuit court entered a judgment order in favor of the bank in the total sum of $798,390.42. This included $323,390.42 in prejudgment interest.
On February 10, 1993, Mr. Clark and Mr. Sheppard filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Among many other points, this motion claimed that:
There was no basis for an award of prejudgment interest, since there was no time specified for performance. Further, since it is undisputed that the Bank retained the property after foreclosure, collected rents on it, and eventually sold it, prejudgment interest would unduly reward the plaintiff.
On June 14, 1993, the circuit court refused to set aside the jury's verdict on the question of Mr. Clark's and Mr. Sheppard's liability, but did set aside the prejudgment interest award. It appears that in setting aside the prejudgment interest award, the court reasoned that the bank's damages were not reasonably certain or susceptible to simple calculation. The court also apparently reasoned that the bank's damages were imaginary.
In the present proceeding, The First National Bank of Bluefield claims that the circuit court erred in setting aside the jury's verdict of prejudgment interest.
General authority for awarding prejudgment interest in a contract action in West Virginia is contained in W.Va.Code § 56-6-27. That statutory provision provides:
The jury, in any action founded on contract, may allow interest on the principal *561 due, or any part thereof, and in all cases they shall find the aggregate of principal and interest due at the time of the trial, after allowing all proper credits, payments and set-offs; and judgment shall be entered for such aggregate with interest from the date of the verdict.
In interpreting this statutory provision, this Court stated in Corte Company, Inc. v. County Commission of McDowell County, 171 W.Va. 405, 407, 299 S.E.2d 16, 18 (1982), that "W.Va.Code, 56-6-27 [1931], allows a jury to grant prejudgment interest `in any action founded on contract.'"
In this Court's view, documents filed in the present case rather clearly show that the bank's claim against Andrew L. Clark and William J. Sheppard is based upon the bank's allegation that Mr. Clark and Mr. Sheppard breached a contract with the bank, whereby they guaranteed the purchase of unsold limited partnership interests in exchange for the bank's agreeing to purchase the revenue bond.
It appears from the documents filed in this case that the circuit court granted judgment notwithstanding the jury's verdict on the prejudgment interest question on the ground that the bank had not been damaged and that, even if it had been, the damages were uncertain and not reasonably susceptible to simple calculation.
In examining the case, it appears that the circuit court did not set aside the actual $475,000.00 damage award, but rather it set aside the interest on the award. In view of the fact that there had to be evidence of actual damages to support the basic $475,000.00 award, and since there was evidence for this, this Court believes that other factors were involved in the circuit court's reasoning.
In their motion for judgment notwithstanding the verdict, Mr. Clark and Mr. Sheppard suggested that there was a question as to whether prejudgment interest could be awarded, since the undertaking of Mr. Clark and Mr. Sheppard was not to pay a sum certain in money, but rather to purchase limited partnership interests. They also contended that there could be no basis for an award of prejudgment interest since there was no time specified for performance in their contract, and they claimed that the bank had obtained control of the property of the limited partnership by foreclosure, had collected rents from it and eventually sold it, and that, under the circumstances, prejudgment interest would unduly reward the bank.
To resolve the issue in this case, the Court believes it is first necessary to discuss the question of whether a contract must contain a promise to pay a sum certain in money before prejudgment interest can be awarded.
There is general law in the United States that an award of prejudgment interest should be allowed only if the amount in question upon which the interest is to be determined is liquidated or if the amount upon which the interest is to be determined can be established or ascertained with reasonable certainty by ready calculation from known standards of value. On this point, 47 C.J.S. Interest & Usury § 49(b) (1982), states:
Generally, the award of prejudgment interest is permissible if the amount in question upon which the interest is determined is liquidated, or if unliquidated can be established or ascertained with reasonable certainty either by rules of evidence or known standards of value, or where the amount due is determinable by computation with reference to a fixed standard contained in the contract without reliance upon opinion or discretion.
Although this Court believes that this general law throws some question on the payment of prejudgment interest in actions where the amount of damages cannot be resolved except by a court or judicial process, or where the amount of damages depends on a judicial determination based on conflicting evidence and is not readily determinable by simple mathematical computation or ascertainable from established market prices or values, the Court believes that the damages involved in the case presently under consideration were readily determinable by computation with reference to a fixed standard contained in the contract. A fair reading of the contract indicates that Mr. Clark and Mr. Sheppard agreed to purchase all unsold limited partnership interests for $25,000.00 each. The amount of damages resulting from their *562 breach could be readily calculated by multiplying $25,000.00 by the number of limited partnership interests which they refused to purchase. In fact, the record shows that they refused to purchase nineteen limited partnership interests, and the jury determined that the actual damages arising from their breach equaled $475,000.00, or nineteen times $25,000.000.
Given the fact that the damages could be readily ascertained by reference to the fixed standards contained in the contract, without reference to opinion or discretion, this Court believes that the present case, although it did not involved purely liquidated damages, did fall within the ambit of the rule allowing prejudgment interest where the damages were liquidated or, if unliquidated, could be established with reasonable certainty by reference to known standards of value. In view of this, the Court cannot conclude that the case was not properly one for a prejudgment interest award.
As previously indicated, another basis for Mr. Clark and Mr. Sheppard's motion for judgment notwithstanding the verdict was that there was no time specified in their contract for performance.
It is generally recognized in this State that the failure of the parties to fix a time or definite time for performance does not normally defeat a contract. Instead, the law generally indicates that, where a contract fixes no definite time for performance, the law usually implies that performance shall be within a reasonable time. See Baker v. Gaskins, 125 W.Va. 326, 24 S.E.2d 277 (1943); Cook Pottery Company v. J.H. Parker & Son, 89 W.Va. 7, 109 S.E. 744 (1921); and Poling v. Condon-Lane Boom & Lumber Co., 55 W.Va. 529, 47 S.E. 279 (1904).
It is apparent to this Court that the purpose of the parties entering into the agreement whereby Mr. Clark and Mr. Sheppard agreed to purchase the limited partnership interests was to provide funds for the construction of the partnership's improvements in the event that the limited partnership interests did not sell.
The records indicates that on March 18, 1985, the bank, acting through R.S. Kennett, its Senior Vice President for Loans, wrote Mr. Clark and Mr. Sheppard and stated that the limited partnership interests had not been sold and suggested that the failure of the parties to act in accordance with the agreement to purchase unsold partnership interests had caused a serious underfunding of the partnership's project. Mr. Kennett concluded the letter by stating:
Therefore, demand is hereby made upon each of you, jointly and severally, to immediately contribute equity in the aggregate amount of $625,000.00 to this project and to complete it according to the representations and statements each of you made to this bank to induce it to make its loan commitment to you.
Given the overall apparent purpose of Mr. Clark and Mr. Sheppard's undertaking, that is, to insure that the partnership's construction project would be properly funded, and given the fact that it was not adequately funded almost two years after Mr. Clark and Mr. Sheppard entered into their agreement, this Court believes that it was reasonable for the bank to expect and demand performance of the agreement by March 18, 1985, the date of Mr. Kennett's letter. Although the contract may not have stipulated a precise time for performance, it may be stated that it was reasonable for Mr. Clark and Mr. Sheppard to have performed by March 18, 1985, and the Court believes that performance was reasonably due by that date.
The Court also notes that Mr. Clark and Mr. Sheppard argued that prejudgment interest was improper since they essentially had unliquidated setoffs against the bank. In this Court's view, that was the position raised by Mr. Clark and Mr. Sheppard when they stated in their motion for judgment notwithstanding the verdict that:
Further, since it is undisputed that the Bank retained the property after foreclosure, collected rents on it, and eventually sold it, prejudgment interest would unduly reward the plaintiff.
It is generally recognized that the existence of an unliquidated counterclaim or setoff by a debtor against a suing creditor will not defeat the requirement that prejudgment *563 interest be paid. This basic rule is stated in 47 C.J.S. Interest & Usury § 49(b) (1982), as follows:
The existence of an unliquidated counterclaim or set-off does not affect the right to interest prior to judgment on the amount found to be due on a liquidated or determinable claim.
In syllabus point 6 of Huffman v. Appalachian Power Company, 187 W.Va. 1, 415 S.E.2d 145 (1991), this Court addressed the question of when a judgment notwithstanding a verdict should be granted. The Court said:
In considering whether a motion for judgment notwithstanding the verdict under Rule 50(b) of the West Virginia Rules of Civil Procedure should be granted, the evidence should be considered in the light most favorable to the plaintiff, but, if it fails to establish a prima facie right to recover, the court should grant the motion.
After reviewing the questions presented in the present case, this Court concludes that there was sufficient evidence to support the prejudgment interest award. It showed that Mr. Clark and Mr. Sheppard entered into a contract which would have resulted in the injection of capital into their partnership project. They did not comply with their agreement. The amount that they failed to inject is easily calculable from their contract, and a reasonable date for performance was apparent from the agreement.
In view of these facts, the Court believes that, given the principles set forth in syllabus point 6 of Huffman v. Appalachian Power Company, Id., the trial court erred in entering judgment notwithstanding the verdict on the prejudgment interest question.[2] The Court also believes that, under the principles discussed above, the date by which performance reasonably should have occurred was March 18, 1985, and that, given this circumstance, prejudgment interest should be calculated from that date.
For the reasons stated, the judgment of the Circuit Court of Mercer County, insofar as it entered judgment notwithstanding the jury's award of prejudgment interest, is set aside and reversed, and this case is remanded with directions that the circuit court award The First National Bank of Bluefield, a national banking corporation, prejudgment interest from March 18, 1985, upon the $475,000.00 principal sum found by the jury in this case.
Reversed and remanded with directions.
NOTES
[1] The jury's verdict said:
For our verdict herein, WE THE JURY FIND;
___ For the Plaintiff
___ For the Defendant
If found for the Plaintiff, WE THE JURY:
Assess damages at $ 475,000 And WE THE JURY FURTHER FIND:
___ Plaintiff is entitled to prejudgment interest at 10%
___ Plaintiff is not entitled to prejudgment interest
/s/ J. Sudderth
FOREMAN
DATE 1/25/93
[2] The Court notes that the appellants claim that the trial court erred in granting a judgment notwithstanding the verdict in this case because of certain procedural questions. Since the Court has concluded that there was no appropriate factual basis for granting the judgment notwithstanding the verdict, the Court does not feel that it is necessary to discuss whether there was a procedural basis for the trial court to grant the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320208/ | 447 S.E.2d 289 (1994)
191 W.Va. 597
STATE of West Virginia ex rel. Calvin Ray TYLER, Petitioner,
v.
Honorable A. Andrew MacQUEEN III, Judge of the Circuit Court of Kanawha County, Respondent.
No. 22269.
Supreme Court of Appeals of West Virginia.
Submitted June 28, 1994.
Decided July 15, 1994.
*290 Gary A. Collias, McIntyre & Collias, William Lester, Charleston, for petitioner.
Mary Beth Kershner, Asst. Pros. Atty. for Kanawha County, Charleston, for respondent.
WORKMAN, Justice:
Petitioner, Calvin Ray Tyler, seeks a writ of prohibition against Respondent, Judge Andrew MacQueen of the Circuit Court of Kanawha County, for failing to disqualify the Kanawha County Prosecuting Attorney's Office ("prosecutor's office") from proceeding against him on various criminal charges. Petitioner alleges that Judge MacQueen abused his power in not appointing a special prosecutor given the conflict of interest created by the employment of Petitioner's former counsel by the prosecutor's office.
Petitioner was indicted by the May 1992 Grand Jury of Kanawha County, West Virginia, and charged with various counts of breaking and entering, entering without breaking, attempted aggravated robbery, attempted murder, aggravated robbery, malicious wounding, and grand larceny. On or about January 7, 1994, Petitioner filed a motion to disqualify the entire prosecutor's office.[1] This motion was argued before Judge MacQueen on February 4, 1994, and denied. Through this original proceeding,[2] Petitioner seeks to prohibit the enforcement of the order denying his motion for disqualification.
As grounds for the requested disqualification, Petitioner states in his petition that prior to his indictment in May 1992 he was *291 represented by an appointed attorney, David Greene, on these same charges. Mr. Greene represented Petitioner until the late winter or spring of 1993. During this time, Mr. Greene met with Petitioner on numerous occasions and spoke with him by telephone for the purpose of discussing his case. Through these communications, Petitioner states that he confided various facts concerning the charges against him to Mr. Greene. In addition to Mr. Greene's contacts with Petitioner, Mr. Greene hired a private investigator to take statements of potential witnesses and to otherwise investigate the case. Petitioner further contends that Mr. Greene compiled a significant amount of material subject to the work-product rule.
In early 1993, the Kanawha County Prosecutor hired Mr. Greene as an assistant prosecuting attorney. Mr. Greene immediately ceased to represent Petitioner in connection with the pending criminal charges. Petitioner argued in his motion to disqualify, that Mr. Greene, as appointed counsel, was privy to his confidences regarding the facts underlying the criminal charges and that if this confidential information were to be provided to the prosecutor's office, it might have a negative impact on his defense.
In support of his position, Petitioner cites to Chapman v. Summerfield, No. 17911 (W.Va. filed November 17, 1987), an unpublished order issued by this Court dealing with an analogous issue. In Chapman, the defendant, who was charged with murder, filed a motion seeking to disqualify the Prosecuting Attorney of Fayette County and all of the office's assistant prosecutors based on the fact that one of the assistant prosecutors had previously represented the defendant in a property dispute and had also represented the defendant in the initial stage of the pending murder prosecution. This Court held as follows:
In the case presently under consideration, there is information that a member of the prosecuting attorney's office previously consulted with the defendant in the initial stages of the prosecution now being pursued. This Court believes that under the circumstances there is a danger, as there was a danger in State v. Britton, ... [157 W.Va. 711, 203 S.E.2d 462 (1974)] that the prosecutor's office will obtain some information relating to the relator's [defendant's] case as a result of the prior consultations. Under the circumstances, the Court believes that the present prosecutor and those connected with his office should be disqualified from trying the relator's case.
Chapman, slip op. at 2. In syllabus point five of Britton, we held that,
A prosecuting attorney should recuse himself from a criminal case if, by reason of his professional relations with the accused, he has acquired any knowledge of facts upon which the prosecution is predicated or closely related, though the consultations had with the accused were gratuitous and done in good faith.
157 W.Va. at 711, 203 S.E.2d at 463.
Petitioner views the Chapman case as dispositive of the issue before us. Were it not for the adoption of Rule 1.11 of the West Virginia Rules of Professional Conduct ("Rules of Professional Conduct") by this Court on January 1, 1989, we would agree with Petitioner. However, the issue of successive government employment is now specifically addressed by that rule, which provides, in pertinent part:
(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:
(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be authorized to act in the lawyer's stead in the matter[.]
W.Va.R.Prof.Conduct 1.11(c) (1989). Clearly, the rule proscribes, as did Chapman, any further involvement by a government employee who formerly provided counsel to the accused.
The issue of the disqualification of the entire prosecutor's office from further prosecution of the matter is no longer entirely controlled by the holding in Chapman, however. The comment to Rule 1.11 of the Rules of Professional Conduct states that *292 "Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated." W.Va.R.Prof.Conduct 1.11 cmt. (emphasis supplied).
The West Virginia State Bar Committee on Legal Ethics ("committee") has issued an opinion addressing this subject. In an opinion entitled "Imputed Disqualification of Prosecuting Attorneys and Their Assistants," the committee addressed "whether the entire staff of a prosecuting attorney's office is prohibited from representing the State or county in matters when one of the staff is personally disqualified." See W.Va. State Bar Comm. on Legal Ethics, Op. 92-01. The committee noted the differing disqualification requirements for members of law firms,[3] and relied upon an opinion issued by the American Bar Association's Committee on Ethics and Professional Responsibility, which stated that, provided the conflicted attorney is completely screened from the case, no imputed disqualification of the entire office is required. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975).
The prosecutor's office maintains that they have completely screened Mr. Greene from any involvement in Petitioner's case. In an affidavit submitted by William C. Forbes, the Prosecutor of Kanawha County, he avers:
b) That during my tenure as Prosecuting Attorney [since 1989], I have on occasion hired persons as assistant Prosecuting Attorneys who had previously represented defendants in criminal cases.
c) That when such persons are hired, I instruct them to avoid any involvement with their former client's cases, where they represented defendants on cases which are still pending or represented defendants on matters relating to pending cases.
d) That all Assistant Prosecuting Attorneys are instructed to avoid discussing any case with anyone in the office who may have a conflict of interest.
e) That David Greene began working as an Assistant Prosecuting Attorney in this office on March 1, 1993. Mr. Greene was hired to prosecute juvenile delinquency cases, and continues to work in that capacity.
f) That Mr. Greene was instructed by me as outlined in Paragraph C, above, and was told specifically with regard to Calvin Tyler to avoid any discussion of the case with any other Assistant Prosecuting Attorneys.
g) That to the best of my knowledge, David Greene has followed my directions with regard to Calvin Tyler, and no other Assistant Prosecuting Attorney has attempted to discuss Calvin Tyler's case with Mr. Greene.
On the same subject, Mr. Greene avers in his affidavit that:
f) That during my tenure as Assistant Prosecuting Attorney, no other employee of the Prosecuting Attorney, nor the Prosecuting Attorney himself, has attempted to discuss Mr. Tyler's case with me or to obtain information about Mr. Tyler in any manner whatsoever.
g) That at no time since my employment as Assistant Prosecuting Attorney have I divulged any information about Calvin Tyler or about 92-F-124 [the pending murder indictment], to any person at the Prosecuting Attorney's office, whether or not such information was protected by attorney-client privilege.
Petitioner admits that he is unaware of any "specific evidence indicating that Mr. Greene in fact has revealed any evidence or information concerning this case to his co-employees with the Kanawha County Prosecuting Attorney's Office." The whole basis for his motion is the appearance of impropriety. This alleged appearance of impropriety dissipates, however, when viewed against the ongoing efforts of the prosecutor's office to completely screen Mr. Greene from any involvement in Petitioner's case and the express right of the prosecutor's office to refrain from disqualification sanctioned by the comment to Rule 1.11. W.Va.R.Prof.Conduct 1.11 cmt. Pursuant to Rule 1.11 of the Rules of Professional Conduct, *293 the fact that an assistant prosecuting attorney previously represented a criminal defendant while in private practice does not preclude the prosecutor's office as a whole from participation in further prosecution of criminal charges against the defendant, provided that the circuit court has held a hearing on any motion to disqualify filed on this basis and determined that the assistant prosecutor has effectively and completely been screened from involvement, active or indirect, in the case.[4]Id.
Based on the foregoing, the writ of prohibition is denied.
Writ denied.
NOTES
[1] This motion also included a request for appointment of a special prosecutor and sought a continuance of the March 1, 1994, trial date. The special prosecutor request was denied, but the trial date was continued until August 1, 1994.
[2] See W.Va.Code § 51-1-3 (1994).
[3] Rule 1.10 of the Rules of Professional Conduct requires the disqualification of the entire firm from a matter in which one member has a conflict of interest. W.Va.R.Prof.Conduct 1.10.
[4] To the extent that this Court's order in Chapman is inconsistent with this opinion, it is overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320274/ | 685 S.E.2d 314 (2009)
300 Ga. App. 450
CRANE
v.
The STATE.
No. A09A1156.
Court of Appeals of Georgia.
September 23, 2009.
Reconsideration Denied October 14, 2009.
*315 Manning & Leipold, Calvin A. Leipold, Jr., Decatur, for appellant.
Daniel J. Porter, Dist. Atty., Dawn H. Taylor, Asst. Dist. Atty., for appellee.
MILLER, Chief Judge.
A Gwinnett County jury convicted Steven Bradley Crane of a single count of voluntary manslaughter (OCGA § 16-5-2). He filed a motion for new trial, which the trial court denied. Crane now appeals, arguing that (i) the evidence was insufficient to support his conviction; (ii) the trial court erred in charging the jury on voluntary manslaughter; and (iii) the trial court erred in excluding his res gestae statements to a Gwinnett County District *316 Attorney Office intern. Concluding that there was sufficient evidence to support his conviction and otherwise 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 evidence shows that on the morning of November 5, 2003, after receiving a call from Patrick Decesaro, Crane and his friend, Jason Waddell, went to Decesaro's apartment with $2,000 with a view to purchasing some marijuana. Crane and Waddell were previously acquainted with Decesaro through mutual friends and had previously purchased marijuana from him. Shortly after they arrived, Crane and Waddell were assaulted and severely beaten by Decesaro, Braden Sams, and Nicholas Alsis. When they were able to break free and after Crane managed to recover their money, Crane and Waddell fled into some nearby woods. As they did so, Decesaro called Crane on his cell phone and threatened to kill him if he called the police.
Crane called Scott Friddell, a friend, to pick them up. When Friddell arrived, a very scared Crane and Waddell emerged from the woodline. Friddell testified that Crane was beaten up with cuts and scrapes, had a swollen face, and was bleeding profusely from a big gash on his head. Waddell also had injuries, including a swollen face. Friddell drove both men to Crane's home because Crane and Waddell were too frightened to retrieve Crane's truck from Decesaro's apartment complex.
On or about November 8, 2003, Crane borrowed a gun from Victor Bute, a friend, because he was "scared to death" and felt that he needed it for his protection. Four days later, on November 12, 2003, between 8:00 and 8:30 p.m., Bute inadvertently called Decesaro twice while trying to dial another friend's number and left a message for his friend to call him back. Shortly thereafter, Decesaro returned the call and told Bute that "it wasn't over between [me] and [Crane]," and "[a]s long as [Crane's] breathing, I'm going to get him." Bute told Crane about his conversation with Decesaro, which left Crane distraught.
On the morning of November 13, 2003, after Crane had left home, Decesaro drove by Crane's house at a high rate of speed with his window rolled down, and yelled at Crane's landscaper that he was going to kill Crane. The landscaper conveyed the threat to Crane who had driven to a nearby Texaco station. Shortly thereafter, while driving, Crane observed Decesaro's vehicle as he made a turn onto Highway 316. Decesaro braked his vehicle, and Crane pulled up next to Decesaro, rolled his window down, and said, "What ... are you doing out here by my house? ... [S]tay away from me." Decesaro responded, again and again telling Crane to pull over and threatening to kill him, while accelerating his vehicle. Decesaro then picked up an object from the floorboard and threw it at Crane's truck. Crane accelerated his vehicle, and the two vehicles raced side by side, eventually reaching 70 miles per hour. Although Crane attempted to pull away from Decesaro, Decesaro repeatedly moved in front of Crane, eventually cutting Crane off as they approached a traffic light. There, in a rage, Decesaro exited his vehicle, yelling and screaming for Crane to get out of his truck. Decesaro first tried to open the door to Crane's truck, and then struck the window with his hand two to three times. Crane pulled out Bute's gun and pointed it at Decesaro, who responded that he was not afraid of a gun and challenged Crane to shoot him. Believing that another blow would shatter the window and fearful for his life or of being seriously injured if Decesaro struck the window again, Crane fired his gun, intending to hit Decesaro in the shoulder, but fatally wounding him, as Decesaro raised his fist once more to strike the window.
1. Crane argues that the evidence was insufficient to support a conviction for voluntary manslaughter because there was no evidence of provocation or passion and the evidence only supported a verdict of murder or self-defense. We disagree.
A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, *317 and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.
OCGA § 16-5-2(a). "Evidence of voluntary manslaughter may be found in a situation which arouses the sudden passion in the person killing so that, rather than defending himself, he wilfully kills the attacker, albeit without malice aforethought, when it was not necessary for him to do so in order to protect himself." (Citations and punctuation omitted.) Mullins v. State, 270 Ga.App. 271, 276(4), 605 S.E.2d 913 (2004). Compare OCGA § 16-3-21(a) ("[A] person is justified in using force which is intended or likely to cause death or great bodily harm ... if he... reasonably believes that such force is necessary to prevent death or great bodily injury to himself ... or to prevent the commission of a forcible felony.").
We have held that "heated arguments, physical beatings and fear of some danger" present sufficient provocation for a voluntary manslaughter conviction. (Footnotes omitted.) Williams v. State, 245 Ga.App. 670, 671-672(1), 538 S.E.2d 544 (2000); Washington v. State, 249 Ga. 728, 730(3), 292 S.E.2d 836 (1982) (fear of some danger can be sufficient provocation to excite passion). Here, Decesaro's conduct in engaging Crane in a dangerous road race and threatening to kill him; throwing an object at Crane's truck, followed by his enraged demand that Crane get out of his truck; forcibly striking the window two or three times; and taunting Crane to shoot him supplied sufficient provocation to excite the passion necessary for voluntary manslaughter. Thomas v. State, 296 Ga.App. 231, 234(1), 674 S.E.2d 96 (2009) (evidence of hostile encounters between defendant and the victim authorized the jury to conclude that defendant shot the victim as a result of sudden passion, rather than out of necessity to protect himself).
Further, Crane testified that the only thing he could think of at the time of the shooting was the physical beating which occurred eight days earlier and the fact that Decesaro had driven to his house that morning and was now at his vehicle. Crane's state of mind demonstrated that he had not "cooled off" from the beating and that the prior altercation engendered his fear and terror of further injury, provoking Crane into shooting Decesaro. The fact that Decesaro's death threats had prompted Crane to borrow a friend's gun for protection also showed that the initial assault stood unresolved and that no "cooling off" had taken place. Williams, supra, 245 Ga.App. at 672(1), 538 S.E.2d 544 ("[e]arlier unresolved assaults without `cooling off' may be sufficient provocation") (punctuation and footnote omitted).
Thus, the jury was authorized to reject Crane's theory of self-defense and conclude that Crane "was so influenced and excited that he reacted passionately rather than simply to defend himself" when he shot an unarmed Decesaro. (Punctuation and footnote omitted.) Williams, supra, 245 Ga.App. at 671(1), 538 S.E.2d 544; OCGA §§ 16-5-2(a); 16-3-21(a); Roper v. State, 281 Ga. 878, 880(1), 644 S.E.2d 120 (2007) (witness credibility is for the jury to decide, as is the question of justification; therefore jury is free to reject claim that defendant acted in self-defense); Thomas, supra, 296 Ga.App. at 233(1), 674 S.E.2d 96 (evidence showing that the victim was unarmed at the time of the incident authorized the jury to conclude beyond a reasonable doubt that defendant was not justified in using deadly force).
Since there was ample evidence of provocation at the time of the shooting and of an unresolved beating that had not "cooled off," the evidence was sufficient to support the verdict.
2. Crane also argues that the trial court erred in charging the jury with voluntary manslaughter because there was no evidence of provocation or passion and neither side requested such an instruction. Given our holding in Division 1 that the evidence was sufficient to support the elements of voluntary manslaughter, the trial court did *318 not err in giving the charge. "Where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue." (Punctuation and footnote omitted.) Williams, supra, 245 Ga.App. at 672(2), 538 S.E.2d 544; Coleman v. State, 256 Ga. 306, 307(1), 348 S.E.2d 632 (1986).
3. Crane argues that the trial court erred in excluding res gestae statements he made to a Gwinnett County District Attorney Office intern, Frederick Saldana. We are not persuaded.
"A trial judge's determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous. [Cit.]" (Punctuation omitted.) Patel v. State, 278 Ga. 403, 404-405(2), 603 S.E.2d 237 (2004).
Prior to trial, the State filed a motion in limine seeking to exclude statements made by Crane to law enforcement officers at the scene and argued that such statements were self-serving hearsay statements and not subject to the res gestae exception. The trial court granted the State's motion in limine to exclude all statements made by Crane to law enforcement officers, and put on the record that it had previously transmitted its ruling to the parties via e-mail and facsimile.[1] The trial court later clarified that the ruling included Crane's statement to Saldana, finding that Saldana was "under the gambit [sic] of law enforcement." Although Crane's trial counsel renewed its motion to admit Crane's statements as res gestae evidence and proffered the statement of Saldana, the trial court adhered to its prior ruling.
Res gestae declarations are those "accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought." OCGA § 24-3-3. "Whether the res gestae exception should apply depends on factors including (i) the timing of the statement ... (ii) whether the declarant was able to deliberate about the statement ... and (iii) whether the declarant was influenced by others prior to making the statement...." (Citations omitted.) Key v. State, 289 Ga.App. 317, 320-321(1)(b), 657 S.E.2d 273 (2008). Each case turns on its own circumstances, so we examine the events rather than the precise time which has elapsed. Jackson v. State, 255 Ga.App. 279, 282(2), 564 S.E.2d 865 (2002).
Here, after the shooting, Gwinnett County police officers immediately arrested Crane and placed him in the back of their patrol vehicle, where Saldana was already seated as the front passenger. Once there, Crane activated his Nextel two-way radio, and a female caller and his father responded sequentially to his radio summons. Although Crane made statements to, and in the presence of, Saldana shortly after the shooting, we cannot conclude that such statements were "free from all suspicion of device or afterthought" since Crane advised the female caller that he could not talk because he was in the back of a patrol car, and asked her not to call him back. OCGA § 24-3-3. Further, Crane's recounting of recent events to his father was a narrative and not part of the res gestae. Compare Jackson, supra, 255 Ga.App. at 282(2), 564 S.E.2d 865 (mother's statement to police while kidnapping incident was in progress and children's statement to 911 operator sprang out of the incident itself, were exclamatory rather than narrative, and part of res gestae).
While there is no evidence that Crane was influenced by others prior to making the statements, he was clearly aware that Saldana was an intern from the University of Georgia who was interested in a career as a detective. This consciousness is reflected in Crane's final phone conversation in which he advised the caller that he was in a patrol vehicle but could not explain the reason or continue the conversation. Under the circumstances, we conclude that the trial court's decision to exclude Crane's statements to Saldana was not clearly erroneous. Patel, supra, 278 Ga. at 404-405(2), 603 S.E.2d 237.
*319 Assuming arguendo that the trial court erred in granting the State's motion in limine, it was not reversible error because Crane's statements to Saldana were cumulative of Crane's trial testimony describing his encounter with a hostile and enraged Decesaro, who repeatedly pounded his fist on Crane's window. Crane's statement to Saldana about his use of a 9 millimeter gun was consistent with undisputed evidence presented at trial. Thus, it was highly probable that the exclusion of Crane's statements to Saldana did not affect the verdict. See Kennedy v. State, 277 Ga. 588, 591-592(4), 592 S.E.2d 830 (2004) (trial court's exclusion of a letter that defendant had written to the victim was not reversible error where the letter was cumulative of witnesses' testimony that defendant loved the victim and valued her role in his life).
For the reasons set forth above, we affirm the trial court's order denying Crane's motion for a new trial.
Judgment affirmed.
ANDREWS, P.J., and BARNES, J., concur.
NOTES
[1] The record does not reflect that the trial court held a hearing on the State's motion in limine before issuing its ruling. Further, the e-mail memorializing the trial court's ruling is not contained in the record. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320781/ | 200 Va. 212 (1958)
FRED A. HAYCOX, ALBIN R. MAILHES, AND THE BEACH PUBLISHING CORPORATION, A VIRGINIA CORPORATION
v.
J. WILLCOX DUNN.
Record No. 4799.
Supreme Court of Virginia.
September 10, 1958.
William L. Parker (Richard B. Kellam, on brief), for the plaintiffs in error.
James E. Heath (M. Earl Woodhouse, on brief), for the defendant in error.
Present, *, and Spratley, Buchanan, Miller, Whittle and Snead, JJ.
1. Plaintiff Dunn, editor of the Princess Anne Free Press, sued defendant corporation, which published the Virginia Beach Sun-News and its editor and one of its chief stockholders for common law libel and insulting words under Code 1950, section 8-630. He recovered a verdict for $65,000 which the court reduced to $30,000. The suit arose out of two publications in the Sun-News accusing Dunn of deliberate falsehood. The action was brought in Norfolk instead of Princess Anne, and this fact was commented on by counsel for defendant in his opening statement. Plaintiff on direct examination stated it was so brought because he could not get a fair trial in Princess Anne. The court then admitted a part of the record in a prior case brought against Dunn in Princess Anne but transferred to Norfolk on his motion supported by affidavit in which he stated in detail the reasons why he believed he could not receive justice in the former jurisdiction. The admission of this matter into evidence was error. Whether Dunn could or could not get a fair trial in Princess Anne was irrelevant to the issues in the libel action. His affidavit was, moreover, a self-serving declaration.
2. The evidence was not admissible on the ground that counsel for defendant had by the remark in his opening statement imputed misrepresentation by Dunn. Counsel for defendant at no time implied that Dunn had made prior inconsistent statements as to his ability to receive a fair trial in Princess Anne, nor did he make any effort to contradict or impeach the witness on this point.
3. Self-serving declarations are admissible only if part of the res gestae; and to be considered such they must accompany and explain an act done which is a fact in issue or relevant to the issue. Prior statements of a witness are not admissible in corroboration of his testimony until an attack has been made on his credibility.
4. The allegedly libelous publications were made in response to attacks on certain of defendants made by plaintiff Dunn in his newspaper. There were no substantial conflicts in the testimony on this point. It was therefore the duty of the court to determine whether the occasion was privileged on the ground of self-defense and for the jury to say whether defendant exceeded the privilege and was actuated by malice. The court was held to have instructed correctly that the occasion was privileged, but the instructions were held faulty in that they did not sufficiently define for the jury what constitutes an abuse of privilege.
Error to a judgment of the Circuit Court of the city of Norfolk. Hon. Clyde H. Jacob, judge presiding. The opinion states the case.
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
This is a motion for judgment instituted by J. Willcox Dunn, alleging the publication by defendants, Fred A. Haycox, Albin R. Mailhes, and The Beach Publishing Corporation, of common law libel and insulting words under our statute. (Virginia Code, 1950, | 8-630.) The action is based on two publications appearing in the "Virginia Beach Sun-News," one on November 24, 1955, and the other on December 8, 1955.
Dunn is the editor and publisher of a weekly newspaper called "Princess Anne Free Press," published at Virginia Beach, in Princess Anne County, Virginia. Mailhes is vice-president, general manager, and editor of the "Virginia Beach Sun-News," also a weekly newspaper, published by The Beach Publishing Corporation, at Virginia Beach. Fred A. Haycox, Richard B. Kellam, and Mailhes own all of the stock of the corporation. The directors are those three shareholders and Sidney S. Kellam. Both newspapers are circulated in the City of Norfolk, Virginia, and the surrounding territory. *214
The defendants filed grounds of defense and amended grounds of defense, asserting the truth of the publications complained of, alleging they were made in self-defense, and denying malice. They charged that the plaintiff, as editor and publisher of the "Princess Anne Free Press," constituted himself the spokesman of a political faction in Princess Anne County and Virginia Beach, opposed to the group holding office in said County and City, for the purpose of increasing the circulation of his newspaper, and with intent to deceive its readers. They listed a number of the issues of plaintiff's paper containing statements reflecting on the character and integrity of the defendants, their friends and associates.
The trial, by jury, resulted in a verdict in favor of the plaintiff, Dunn, for $65,000, which the court reduced to $30,000, over the objection of the plaintiff, and entered judgment accordingly.
The trial of the case consumed six days, and the record consists of more than six hundred typewritten pages.
The defendants assign error to the admission in evidence of a part of the record of the proceedings in an action instituted by Vito Morlino against The Free Press, Incorporated, and J. Willcox Dunn, in the Circuit Court of Princess Anne County and subsequently transferred to the Court of Law and Chancery of the City of Norfolk; to the action of the court in granting Instructions P-1 and P-5 requested by the plaintiff; to the refusal of the court to grant Instruction D-3 as offered by defendants; to the refusal of the court to set aside the verdict and order a new trial; to the action of the court in reducing the amount of the verdict instead of setting it aside, and to the amount of damages as excessive.
The plaintiff assigns cross-error to the action of the court in reducing the award of the jury and refusing to enter judgment upon the verdict of the jury.
In view of the conclusion which we have reached, it is only necessary for us to consider defendants' assignments of error relating to the admission of evidence, and to the court's action in granting and refusing instructions. In connection therewith, we shall recite and refer to only so much of the evidence as is necessary to present a picture of the situation which brought on the controversy between the parties, and is related to the above assignments.
In 1952, Dunn began publication of the "Princess Anne Free Press," and started a vigorous crusade to correct what he termed "corruption" in connection with the administration of public office in *215 Princess Anne County and Virginia Beach. He charged, from time to time, that the majority of the officeholders of those communities were guilty of malfeasance and misfeasance in office and of association with criminals and racketeers; and that they and the defendants were guilty of corrupt and improper motives. He branded defendants as members of the "Kellam Machine," and charged that members of that group had infiltrated every organization in Princess Anne County and Virginia Beach, social, civic, religious and political, and had given loyalty to the "Kellam Machine" above loyalty to their communities, their clubs or societies. He directed his attacks largely against Floyd E. Kellam, Judge of the Circuit Court of Princess Anne County, Sidney S. Kellam, a brother of Judge Kellam and a business and political leader of that County, other members of the Kellam family, and their friends and associates.
In the November 17, 1955, issue of the "Princess Anne Free Press," there was spread across the entire front of the first page a headline, in bold letters, reading as follows:
"EX-FUGITIVE SPOT FERGUSON GUNS IN SIDNEY KELLAM BLIND."
Immediately following, in large type, appeared the following three lines:
"ELUSIVE RACKETEER SHOOTS IN 'KELLAM PARTY' GROUP; RIDES IN 'EROSION' JEEP."
Underneath this statement then appeared the following:
"City Sergeant Halstead 'Spots' Ducking Pal."
"With that fantastic twist for which Princess Anne is becoming noted, the notorious racketeer and Kellam Machine politician, Spot Ferguson, shot ducks on November 8 from a blind licensed by Sidney S. Kellam, brother of Circuit Court Judge Floyd E. Kellam, from whose court Ferguson has been a recent fugitive under special grand jury indictments."
* * *
"Virginia Beach City Sergeant Hal Halstead at dawn of last Tuesday week was seen driving with Ferguson towards the ducking area. The authority for Ferguson to shoot from Sidney Kellam's blind was indicated on its schedule as "Kellam party.'
"On the first day of the season Spot Ferguson, Charles McChesney, father of Assistant City Sergeant, Buddy McChesney, and City Sergeant *216 Halstead are known to have used as transportation to and from the ducking area at Back Bay a Virginia Beach Erosion Commission jeep. * * *"
Then followed charges of criminal activities against "Spot" Ferguson and several others, and the statement that Ferguson "allegedly was involved in the reported $7500 loss in 1952 at the Dunes Club," a club involved in charges that it had been operated unlawfully.
In the November 24, 1955, issue of the "Virginia Beach Sun-News," one of the publications complained of, there appeared a headline across the entire front page, reading as follows:
"'DUNN A FUGITIVE FROM TRUTH' -- FERGUSON."
Beneath this appeared the heading:
"NEWSPAPER STORY WASN'T FACTUAL; 'DELIBERATE FALSEHOOD' CHARGED. Halstead Also Denies Report."
Then, in the column, below the above heading, appeared the following:
"'Willie Dunn is a fugitive from the truth.' So said F.D. 'Spot' Ferguson as a result of an article published last week in the Princess Anne Free Press, a newspaper in which J. Willcox Dunn is listed as publisher."
"The controversial newspaper story stated that Ferguson had hunted ducks in a blind at Back Bay licensed by Sidney S. Kellam, local business executive and recognized political leader in Princess Anne County."
"Ferguson made a statement to the Sun-News in which he stated that he had never in his life been in Sidney Kellam's duck blind and that he had never sought permission to hunt from the blind."
"The article also stated that City Sergeant H. E. Halstead had accompanied Ferguson on the ducking party to the celebrated blind and that the affair was a 'Kellam party.' This prompted a statement from City Sergeant Halstead this week which brands the newspaper story as a 'deliberate lie' and further points up the 'caliber of man Dunn is.'"
"Both statements this week point out the gross falseness of the Free Press story."
"Ferguson's statement follows:"
"'Willie Dunn is a fugitive from the truth. I have never been in Sidney Kellam's duck blind in my life. I have never sought permission to hunt in this blind and permission to do so has never been *217 offered to me by anyone. I hate to bring myself down to Dunn's level but I am compelled to say he is a deliberate liar.'"
* * *
"City Sergeant Halstead said:"
"'It has come to my attention that in the November 17 issue of the Princess Anne Free Press a statement was printed to the effect that "Spot" Ferguson and myself, along with another person, shot ducks on November 8th from a blind licensed by Sidney Kellam. This is a deliberate lie. On the date of November 8th General Hugh Harris and myself used this blind through the courtesy of R. R. McChesney. "Spot" Ferguson has never been in this blind to my knowledge. He certainly has never been in it with me. While I am sure the people are familiar with the caliber of man Dunn is I feel compelled to point out what a deliberate lie this is."
"'I may not agree with Ferguson's philosophy of a livelihood, but man for man I think it is generally conceded that Ferguson is a better man than Willie Dunn.'"
In the issue of December 1, 1955, the "Free Press," in a headline across the front page, Dunn replied:
"SUN-NEWS MUST RETRACT DUNN STORY OR FACE LIBEL SUIT."
Underneath appears the following:
"FREE PRESS ADAMANT; WON'T TOLERATE HEDGING; BACK UP OR GET READY."
Then in two columns, entitled "Duck Blind Affair," were repeated the statements made in the November 17 issue of "Free Press" and in an adjoining column the statement of the "Sun-News" of November 24, 1955, above set out.
In the right-hand column of the "Free Press," this statement was made:
"The Virginia Beach Sun-News in its next issue must unequivocally and completely retract the story which appeared in its November 24, 1955 edition banner-lined 'Dunn A Fugitive From Truth'-Ferguson or face a libel suit. The Free Press and its publisher J. Willcox Dunn demand that the retraction story be given prominence equal to that of the one of last week or all parties legally responsible for the Sun-News' original story will be subject to appropriate court action. *218 "
"The ducking incident must be resolved."
"For the convenience of our readers we are reprinting on this page our story of Spot Ferguson (ex-fugitive from the jurisdiction of the Circuit Court of Princess Anne) recently gunning in Red Head Bay from a duck blind, licensed by Sidney S. Kellam, brother of Floyd E. Kellam Circuit Court Judge of Princess Anne County."
"The Sun-News story of the following week appears beside that of the Free Press."
In the December 8, 1955, issue of the "Virginia Beach Sun-News," the second publication complained of, there appears on page 4, next to the editorial column, under the heading, "Around the Cracker Barrel," the following statement:
"Last week Old Willie Dunn, in his usual attempt to sell his newspaper, headlined the fact that the Sun-News must retract a story concerning the 'duck blind episode' or face a libel suit. The original story of the duck blind was published by Willie and the Sun-News feels the duck blind episode was resolved when 'Spot' Ferguson said: 'Willie Dunn is a fugitive from the truth.' The Sun-News is inclined to believe Ferguson ahead of Willie and his newspaper since both Willie and his paper have survived thus far on lies. Willie stated that the Sun-News must 'back up or get ready.' Since we don't back up we must be ready."
The written, signed statements of Ferguson and H. E. Halstead, City Sergeant of Virginia Beach, referred to in the "Sun-News" of November 24, were introduced in evidence.
In addition, a number of issues of the "Free Press" dating from January 8, 1954, to February 19, 1956, containing statements charging corruption and improper motives on the part of the officeholders of Princess Anne County and Virginia Beach, supporters of the "Kellam Machine," including the defendants, were introduced in evidence. In the issue of January 7, 1954, the defendant, Haycox, was referred to as a "robber baron," and in its issue of November 18, 1954, as dominated by machine politics. In the last mentioned issue the defendant, Mailhes, was said to be "the general manager of the machine dominated newspaper," that is, the "Sun-News," and other persons, including friends, associates and members of the Kellam family and supporters of the so-called "Kellam Machine" were described as being "always ready to stand up and be counted -- sometimes apparently more than once." In its issue of February 9, 1956, it published an editorial headed, "Kellam Machine Blacks Out Justice at *219 Virginia Beach." Under this statement, it attacked certain proceedings in the Police Court of Virginia Beach as like unto the courts of "Communist Russia, Nazi Germany, and Fascist Italy," and charged that the Commonwealth's Attorney and ex-Commonwealth's Attorney, and the brother of the Circuit Court Judge of Princess Anne, an attorney, teamed up to pull through a so-called trial without regard to law and justice.
In its issue of July 21, 1955, referring to the "Kellam Machine's" victory in the July 12 primary, "as surprising," it was stated that irregularities were practiced at Virginia Beach precincts, and that "shenanigans" went on around the ballot box aided by "shock troops" and "racketeers" associated with the "Kellam Machine." There were also included statements of threats and physical attacks upon Dunn, and charges made that the trial of his alleged attacker was held in an irregular and improper manner.
The record is replete with extraneous matter, with objections to the admission of evidence, and with repeated objections by counsel for each of the parties to the admission of testimony and exhibits. It is clear from the record, as the trial judge stated during the course of the proceeding, that "The whole case from beginning to end is political."
It appeared that in his opening statement to the jury in this case, one of counsel for defendants said: "The jury will want to know why this law suit was brought in the City of Norfolk and not in Princess Anne County, where the parties reside and are known." No further reference was made to this question by counsel for the defendants until the closing argument, when this was said: "The plaintiff did not see fit to bring this case in Princess Anne County where everybody knew him."
The first reference to this subject in the testimony occurred when counsel for the plaintiff said: "Mr. Parker made a remark about your bringing this law suit in Norfolk. Why did you bring it here?" The answer was: "Because I didn't have the slightest idea that I could get a fair trial in Princess Anne County." On cross-examination of Dunn, no reference was made to this question; and it was not until Dunn was recalled and reexamined that the following question was asked by his own counsel: "Now, Mr. Dunn, I understood you to say to Judge Parker that you felt confident that you could not obtain a fair trial in Princess Anne County. Is that correct?" The answer was: "That is right, or words to that effect." The record *220 does not show that counsel for defendants, referred to as "Judge Parker," asked such a question. After the above answer, counsel for plaintiff offered in evidence a transcript from the record of the proceedings in the case of Morlino against Dunn and "The Free Press, Incorporated," tried in the Court of Law and Chancery of the City of Norfolk. Defendants promptly objected on the ground that the motion and affidavit were purely self-serving declarations.
Then followed considerable argument before the court. Heath, counsel for Dunn, argued that "Judge Parker has gone into it. I want to show why it is true." Heath then asked the witness, "Have you formerly said to the Circuit Court of Princess Anne County it is impossible for you to have a fair trial in that County?" Dunn replied: "I have." Parker then renewed his objection to the introduction of a written paper and in response to his objection the court said to Heath: "He has answered the question. You could, if you saw fit, say why he said that, but that is a self-serving paper you have in your hand." Nevertheless, counsel for plaintiff persistently argued that the court should permit the introduction of the document and counsel for the defendants continued to object. Then Heath again offered the motion and affidavit, and thereupon the following colloquy ensued:
"Mr. Heath: I offer this motion, sir, which has come from the Clerk's Office across the way with the order."
"The Court: He has testified as to the fact that the Judge, upon that motion, transferred it to another Court. What do you want to put that in for? If there was any doubt there it would be different."
"Mr. Heath: I want this jury to know Mr. Dunn has offered to prove in that County the reasons why he can't get a fair trial, and I want him to have the opportunity for the jury to know what he said in that motion."
"The Court: The witness testified that the Judge did transfer it, and I suppose it was disposed of in that Court."
"Mr. Heath: I want to read this to the jury, what he stated."
"The Court: It is a record of the Court of Law and Chancery?"
"Mr. Heath: Yes, sir."
"Mr. Parker: It is an effort to sling more mud which this plaintiff has been slinging during the time he has published the paper. It emanates from him, and he wants to lift himself by his own boot straps by offering the document." *221
The court then said: "The fact that you opened the door as to his bringing it here in this Court and all of that has no place in this case."
"The basis of this controversy is an action for libel as to statements published, that the statements published were libel per se, and you have other defenses. To tell us about another Judge has nothing to do with this."
Heath replied: "Judge Parker opened the door."
Later on the court said, with reference to Dunn's statement of his reason for not bringing the case in Princess Anne, and in response to the above statement of Heath, that "It is opened, and closed by his giving his reasons why. Why do you want something like that put in evidence?"
Counsel for plaintiff continued his efforts to put the motion and affidavit in evidence, on the theory that since the document came from a court of record, it was admissible.
Thereupon the following occurred:
"Mr. Heath: Judge Parker asserted that this is an effort to spread or sling mud. It is an effort to let the jury know he has been before the Court like a man and told him these are the reasons why he cannot get a fair trial in Princess Anne County, 'You are head of the organization and picked the Jury Commissioners,' and to show the jury he is not up here to evade anything, but he has faced the Judge of the Court and offered to prove why he could not get a fair trial in Princess Anne County."
"The Court: Do you have a copy of the order?"
"Mr. Heath: Yes, sir."
"The Court: If it is based on his written motion it can be put in."
"Mr. Heath: I apologize for being excited."
"The Court: This says that 'The Judge of this Court, not desiring to preside at the trial of this case, doth transfer same to the Court of Law and Chancery of the City of Norfolk, Virginia, and directs the Clerk of this Court to deliver the papers to the Court of Law and Chancery of the City of Norfolk.' There is nothing in that that he acted on this petition. If he was acting on a written motion, it should be entered."
"Mr. Heath: I assure you this was the only motion before the Court."
"Mr. Kellam: The Judge, on his own motion, may transfer any case to another Court, and the order so shows. *222 "
"The Court: If he acted on a motion it should be before the jury."
Defendants objected on the ground that it "is a self-serving declaration and its sole purpose is to inflame and prejudice the jury, and has nothing to do with the issue in this case," and noted an exception to the ruling of the court.
The transcript in question, consisting of a motion, an affidavit, and the court orders thereon from an action originally instituted in the Circuit Court of Princess Anne County, and subsequently transferred to the Court of Law and Chancery of the City of Norfolk, in which Vito Morlino was plaintiff and The Free Press, Incorporated, and J. Willcox Dunn were defendants, was then read to the jury, in form and language as follows:
"The defendants and each of them move this honorable court that this action be transferred from this court to another court of the Commonwealth of Virginia having jurisdiction to hear and determine it, upon the ground that the defendants and neither of them can obtain and have a fair and impartial trial by jury in this court. And for grounds in support of this, their motion, the defendants allege as follows:"
"1. There exists and has long existed in the County of Princess Anne and in the City of Virginia Beach a political combination, commonly called the Kellam Machine or Kellam Organization led by Floyd E. Kellam who is and since 1946 has been Judge of this Court, Sidney S. Kellam who was for many years Treasurer of said County, Richard B. Kellam and a number of their brothers."
"The combination includes among its chief lieutenants and zealous partisans Clarence E. Hobeck, formerly Chief of Police of the County of Princess Anne and the Town of Virginia Beach; Jim Ed Moore, Chief of Police of Princess Anne County; Fred A. Haycox, Cecil H. Reed and E. B. McCoy, sometime members of Special Grand Juries attending this Court; Paul W. Ackiss who is, and for many years has been Commonwealth's Attorney for Princess Anne County; John V. Fentress, Clerk of this Court; Ivan G. Mapp, Commissioner of the Revenue of Princess Anne County and Jonathan D. Vaughan, Treasurer of Princess Anne County."
"2. The combination commonly called the Kellam Machine or Kellam Organization includes among its zealous partisans substantially all of the public officers and employees of the County of Princess Anne and the City of Virginia Beach."
"3. The Jury Commissioners appointed by this Court for 1954 *223 are zealous partisans of the combination commonly called the Kellam Machine or Kellam Organization."
"4. The combination commonly called the Kellam Machine or Kellam Organization includes among its zealous partisans numerous persons who are active participants in illegal activities."
"5. The combination commonly called the Kellam Machine or Kellam Organization is, and for many years has been in control of the Democratic Party in the County of Princess Anne and the City of Virginia Beach and of all of its official bodies, boards and committees and of all Boards of Election in said County and City."
"6. The combination commonly called the Kellam Machine or Kellam Organization, through its leaders, lieutenants and zealous partisans owns, controls, or substantially influences many commercial, civic and charitable enterprises, organizations and associations in the County of Princess Anne and in the City of Virginia Beach including the only locally owned bank, the only locally owned Building and Loan Association, and the only locally owned newspaper, except the defendant, 'Princess Anne Free Press.'"
"7. The combination commonly called the Kellam Machine or Kellam Organization through and by means of the power and influence of its leaders, lieutenants and partisans individually and collectively who occupy the said offices, serve on the said Boards, bodies and committees, are employed by said county and city, own, control, or substantially influence said enterprises, organizations and associations, and who engage in said activities, has, and has long had great economic and political power and influence in Princess Anne County and the City of Virginia Beach."
"8. The combination commonly called the Kellam Machine or Kellam Organization has on numerous occasions used and abused its great power and influence to favor its adherents and to intimidate, injure and oppress its opponents."
"9. For many years and particularly since 1949, J. Willcox Dunn, defendant herein, a native of Virginia and longtime resident of Virginia Beach, has been a close observer and student of the operations of the Kellam Machine and of the administration, and maladministration of public offices and affairs and particularly of the administration of justice by leaders, lieutenants and partisans of the said combination commonly called the Kellam Machine or Kellam Organization, and by persons under their domination and control."
"Beginning in 1949 the said J. Willcox Dunn began publicly to *224 criticize actions and omissions of certain of the leaders, lieutenants and partisans of the combination commonly called the Kellam Machine or Kellam Organization and of certain persons under their domination and control and to bring to public attention the evils and abuses flowing therefrom. In March, 1952, J. Willcox Dunn began and has since continued to publish each week the newspaper 'Princess Anne Free Press.' In seeking to fulfill the obligation of said 'Princess Anne Free Press' to inform the public on matters of public concern and to perform its duty to its subscribers and readers he has in news items and editorials in said newspaper reported, discussed, commended, criticized and censured certain of the acts and omissions of public concern of certain of the leaders, lieutenants and partisans of the combination commonly called the Kellam Machine or Kellam Organization. In so doing, he has from time to time and in many issues of the 'Princess Anne Free Press' strongly assailed the said Floyd E. Kellam, Sidney S. Kellam, Clarence E. Hobeck, Jim Ed Moore, Paul W. Ackiss, John V. Fentress, Ivan B. Mapp and other leaders, lieutenants and partisans of said combination and other persons under its domination and control."
"10. As a result of his said criticisms and censures of leaders, lieutenants and partisans of the combination commonly called the Kellam Machine or Kellam Organization, and although the said criticisms and censures were fully justified and warranted by the facts, they, the said leaders, lieutenants and partisans of the said combination named in said newspaper reports and editorials, are and have been intensely hostile to the said J. Willcox Dunn and they harbor feelings of malice and ill-will towards him and do constantly seek by word of mouth and by writing to influence others to feel hostility towards him and to speak derogatorily of him."
"11. Partisans of the said combination commonly called the Kellam Machine or Kellam Organization have made threats against the said J. Willcox Dunn, declaring in effect that they would 'get' him if he did not 'lay off' and cease his criticisms and censures of them."
"12. Partisans of the said combination commonly called the Kellam Machine or Kellam Organization desire to silence the newspaper, the 'Princess Anne Free Press' and to silence its publisher, the said J. Willcox Dunn; and a trial of this action in Princess Anne County will provide them with an opportunity to try to accomplish these ends. *225 "
"13. WHEREFORE, and for the reasons stated herein the defendants and each of them alleges that neither of them can have and obtain a fair and impartial trial by jury in the County of Princess Anne; and this they allege to be true whether a jury be drawn from the said County or from elsewhere."
PRINCESS ANNE FREE PRESS, INCORPORATED By (S) J. WILLCOX DUNN -- PRESIDENT.""
"Pursuant to Rule 3:18 of the Supreme Court of Appeals of Virginia, the defendants made this pleading an affidavit by the following statement under oath:"
* * *
"The defendants and each of them move that the Judge of this Honorable Court, Floyd E. Kellam, do disqualify himself to sit as Judge in this action on the ground that he is biased and prejudiced against the said defendants and each of them."
"The Judge of this Court not desiring to preside at the trial of this case, doth transfer the same to the Court of Law and Chancery of the City of Norfolk, Virginia, and directs the Clerk of this Court to deliver the papers to the Clerk of the Court of Law and Chancery of the City of Norfolk, Virginia, forthwith."
A Copy -- Teste: JOHN V. FENTRESS, Clerk By (S) R. H. WEST, Deputy Clerk.""
Plaintiff contends, in support of the court's ruling, that defendants' counsel, in his opening statement, before the evidence was heard, made an attack upon Dunn by imputing that Dunn had such a widespread bad repute among the citizens of his home county that his testimony would not be accepted by a jury in that county, that doubts were cast upon the truth of Dunn's statements, and that since the motion and affidavit were a part of the record of a court proceeding, they were admissible as evidence of the prior consistent statements of the witness, Dunn, who had been sought to be impeached by the imputation of misrepresentation.
None of the defendants in the present case had any connection with the action instituted by Morlino against Dunn and his newspaper in the County of Princess Anne and subsequently transferred to the Court of Law and Chancery of the City of Norfolk. There was no issue in the pleadings in this case as to why Dunn brought *226 it in the City of Norfolk. He had the right to institute it in any court having jurisdiction of the subject matter and the parties. His answer to the question, why he brought it in the City of Norfolk, and not in Princess Anne County, was full, direct and responsive. The motion and affidavit consist of a summary of the charges of corruption, malfeasance and misfeasance, which Dunn had published from time to time concerning the defendants, the officeholders of Princess Anne County and Virginia Beach, their friends and associates.
Whether or not Dunn could get a fair trial in Princess Anne County in the case instituted by Morlino against him, or in this case instituted by him against the defendants, was not in issue in the present case, and had no part or connection therewith.
The motion and affidavit were plainly self-serving declarations. They pictured Dunn as a zealous crusader striving to protect the public from misdeeds and corruption alleged to have been committed by the so-called "Kellam Machine," and as one earnestly engaged in an effort to obtain and preserve justice, law and order. The affidavit charged that the Kellam organization was engaged in illegal actions and unlawful machinations, and was being supported by persons under its complete domination and control. The transcript, with the orders of the court included, might well have influenced the jury in the present case to believe that the Court of Law and Chancery had found that the charges made in the affidavit had been established as true in a court proceeding.
It is conceded that the affidavit formed no part of the res gestae.
It is insisted, however, that counsel for defendants "opened the door" to its admission by the imputation of misrepresentation by Dunn. The contention is without merit. After plaintiff had fully disposed of the question why he brought the case in the City of Norfolk, it was his counsel who subsequently opened the subject and not the defendants.
There were no imputations in the statements or questions by defendants' counsel that Dunn had made prior inconsistent statements or misrepresentations as to whether or not he could get a fair trial in Princess Anne County. There were no charges or imputations that he had made different statements about the defendants at any former time. There was no effort to contradict or impeach the witness, or to show a misrepresentation of his attitude or views towards defendants. *227
In 7 Michie's Jurisprudence, Evidence, Sec. 255, page 632, is the following apt summary of the rule adopted in Virginia:
"Self-Serving Declarations. -- It may be stated generally that a party's declarations are not admissible as evidence in his own favor unless they form a part of the res gestae. But to come within the terms and operation of the general rule stated above, the declarations must accompany and explain an act done, which is a fact in issue, or is relevant to the issue. Accordingly, it has been held that the declarations of a party in his own favor ought not to be received as evidence, though it is a part of the res gestae of a collateral fact introduced in the case, merely to contradict a witness on the other side, but which fact is in no way otherwise connected with the material inquiry involved in the case."
"Self-serving declarations made by one party in the absence of the other, should not be admitted in evidence; and if such declarations inadvertently creep into the evidence before the jury, they should be stricken out on motion, and the jury told to disregard them. * * *"
In 20 Am. Jur., Evidence, | 458, pages 404, 405, this is said:
"Testimony may be inadmissible as hearsay, notwithstanding it is the declaration of the witness upon the stand. Thus, a self-serving declaration, offered at the trial for the purpose of fortifying the witness's own testimony, is inadmissible. Prior statements of a witness are not admissible in corroboration of his testimony, at least until an attack has been made on his credibility. * * *"
See also for further application of the doctrine: Scott and Boyd Shelor, 28 Gratt. (69 Va.) 891, 896, Repass Richmond, 99 Va. 508, 39 S.E. 160; Mopsikov Cook, 122 Va. 579, 95 S.E. 426; Crowson
Swan, 164 Va. 82, 178 S.E. 898; and Sutton Sutton, 194 Va. 179, 187, 72 S.E.2d 275.
The admission of the record from the Court of Law and Chancery of the City of Norfolk was reversible error. The motion and affidavit constituted self-serving declarations in an issue not involved in or connected with the inquiry in this proceeding. They presented to the jury statements calculated to prejudice them against the defendants, and which may have readily affected the finding of the jury, both as to the liability of the defendants and the amount of assessment of damages against them.
Defendants objected to Instructions P-1 and P-5 on the ground that there was no actual malice shown by the evidence, and on the *228 further ground that Instruction P-5 disregarded the defense of privilege.
Without reciting the evidence relating to malice, in view of the fact that the case must be remanded for a new trial, we think that the words used, under the circumstances recited, were sufficient to submit to the jury the question whether or not defendants were actuated by actual malice.
Instruction P-5 deals only with one aspect of the case, that is, whether, upon the failure of the defendants to sustain their plea of truth they were further shown to have been actuated by actual malice; whereas, defendants also relied upon the privilege of self-defense in the protection of their interests.
Paraphrasing the language of Chaffin Lynch, 84 Va. 884, 886, 6 S.E. 474, the question for the jury was not solely whether the language used was true, or whether defendants had reasonable ground to believe it to be true, but whether in point of fact they honestly believed it to be true, and published it without malice, in fair self-defense, or in the reasonable protection of their own interests.
Instruction D-3, as requested by defendants, was first granted by the court and later refused. It reads as follows:
"The Court instructs the jury that if they believe from the evidence that the plaintiff caused to be published charges of disreputable conduct by any of the defendants, or any other person, or characterized them in such a manner as to bring them into disrepute by publishing derogatory statements concerning them, then the persons so charged are entitled to defend themselves against the charges made against them, and any publication so made in self-defense, if made"
bona fide and without malice, is privileged, because made in the performance of a moral duty. It is true that one insult cannot be set off against another, yet if a man is attacked in a newspaper, he may reply; and if his reply is not unnecessarily defamatory of his assailant, and is honestly made in self-defense, it will be privileged, and no recovery may be had based thereon. The Court further instructs the jury that it is the duty of the Court to determine whether or not the occasion is privileged, and it is the duty of the jury to determine whether or not the privilege has been abused. The Court instructs you that in the instant case the facts establish that the occasion is a privileged one and that in order to establish that the privilege has *229 been abused the burden rests upon the plaintiff to establish abuse of privilege by a preponderance of the evidence.""
In Bragg Elmore, 152 Va. 312, 325, 326, 147 S.E. 275, we stated:
"The general rule, which has been repeatedly stated by this court, is that it is the court's duty to determine as a matter of law whether the occasion is privileged, while the question of whether or not the defendant was actuated by malice, and has abused the occasion and exceeded his privilege are questions of fact for the jury. (Citing cases.)"
"There can be no doubt whatever as to this rule. It has been so correctly stated in the cases cited and many others. The case, however, illustrates a qualification of that rule. Generally, all the facts in connection with the actual publication of the libelous language are apparent. This was true in the precedents we have cited. Occasionally, however, cases arise in which, because of sharp and substantial conflicts in the testimony as to the facts upon which the claim or privilege rests, the question as to whether the particular occasion was privileged becomes a mixed question of law and fact."
The instruction is correct from a legal standpoint; but it is calculated to mislead the average layman, such as a juror, because of its failure to define what constitutes an abuse of privilege. It is true that actual malice to the extent defined in Instruction P-5 constituted an abuse of privilege; but, as we have stated, that instruction deals only with one aspect of the case, and there was no other instruction which defined the privilege of self-defense.
The case does not come within the exception mentioned in Bragg Elmore, supra. There are no "sharp and substantial conflicts in the testimony as to the facts upon which the claim or privilege rests." On the other hand, the facts and circumstances surrounding the publications of the defendants appear to be without dispute.
The question of privilege was one for the court, and the question of the use which the defendants made of their privilege, that is, whether they acted maliciously or not, was a question for the jury to decide. 12 M. J. Libel and Slander, | 23, pages 72 et seq.
In Chaffin Lynch, 83 Va. 106, 1 S.E. 803, beginning on page 117 of 83 Va., this is said:
"The reported cases on the subject of privileged communications are very numerous, and they show that while the law as to such communications is well settled, its application to particular cases is often attended with difficulty. They also show that the law in this particular *230 was formerly more restricted than at present, the rule having been gradually extended, on the ground that it is to the interest of society that correct information should be obtained as to the character and standing of persons with whom others have business or social relations; so that it is now settled, as laid down by Baron Parke in the leading case of Toogood Spyring, 1 C.M. & R. 181, that a communication honestly made in the performance of a social duty, is no less privileged than one made in self-defense, or in the protection of one's own interest. And a communication made under such circumstances, and without malice, is protected, notwithstanding its imputations be false, or founded upon the most erroneous information. (Citing a large number of cases.)"
"According to these principles, while it is true that one insult cannot be set off against another, ( Bourland Eidson 8 Gratt. 27,) yet if a man is attacked in a newspaper, he may reply; and if his reply is not unnecessarily defamatory of his assailant, and is honestly made in self-defense, it will be privileged. The rule, deducible from the authorities, is expressed by a modern text-writer as follows: 'Every man has a right to defend his character against false aspersion. It may be said that this is one of the duties that he owes to himself and to his family. Therefore, communications made in fair self-defense are privileged. If I am attacked in a newspaper, I may write to that paper to rebut the charges, and I may at the same time retort upon my assailant, when such retort is a necessary part of my defense, or fairly arises out of the charges he has made against me.' Odgers, Lib. and Sland. 228."
The judgment in the above case having been reversed and remanded came on again to be heard on a writ of error to the second judgment of the trial court. Chaffin Lynch, 84 Va. 884, 6 S.E. 474. The second judgment was reversed for failure of the trial court to instruct the jury in conformity with the general principles laid down in the first appeal as applicable to the case. There the court said that one "honestly defending his character against false aspersion, his communication, if within the limits of the occasion, is protected, because made in the performance of a moral duty." 84 Va., page 889.
In Israel Portland News Pub. Co., 152 Or. 225, 232, 53 P.2d 529, 103 A.L.R. 470, the principle involved is stated as follows:
"The law seems to be well settled that when one is attacked by *231 defamatory matter published in the press one may resort to the same methods to reply to or rebut the charges made."
Then quoting from Newell, Slander and Libel, 4th Ed., Sec. 429, page 456, this is said:
"'Every man has a right to defend his character against false aspersion. It is one of the duties which he owes to himself and to his family. Therefore, communications made in fair self-defense are privileged. If a person is attacked in a newspaper, he may write to the paper to rebut the charges, and may at the same time retort upon his assailant, where such retort is a necessary part of his defense or fairly arises out of the charges he has made. A man who commences a newspaper war cannot subsequently come to the court as plaintiff to complain that he has had the worst of the fray. But in rebutting an accusation the party should not state what he knows at the time to be untrue, or intrude unnecessarily into the private life or character of his assailant. The privilege extends only to such retorts as are fairly an answer to the attacks.'"
In Conroy Fall River Herald News Pub. Co., 306 Mass. 488, 28 N.E.2d 729, 132 A.L.R. 927, the court held that one who is defamed is privileged in branding, in good faith, the defamatory statements as false and calumnious; and if his motives are impugned may comment upon the motives of his defamer.
"One attacked by a slander or libel has a right to defend himself, but he has no right to turn his defence into a slanderous or libelous attack, unless it clearly appears that such attack was necessary for his justification." Borley Allison, 181 Mass. 246, 247, 63 N.E. 260.
"Statements made in an honest endeavor to vindicate one's character or to protect one's interests are usually regarded as qualifiedly privileged, even though they are false, if they are made in good faith and without malice. Thus, it seems to be definitely settled that when one person assails another in the public press, the latter is entitled to make reply therein, and so long as the reply does not exceed the occasion, he cannot be held responsible for any resultant injury." 33 Am. Jur., Libel and Slander, | 134, page 133.
"The law justifies a man in repelling a defamatory charge by a denial or by an explanation, and, if he answers the charge in good faith, and what he publishes is fairly an answer, and is published for the purpose of repelling the charge and not with malice, it is privileged." 53 C.J.S., Libel and Slander, | 111, page 189.
See Odgers, Libel and Slander, 6th Ed., pages 240-242; Newell, *232 Libel and Slander, 4th Ed., | 429, page 456; 1 Harper and James, The Law of Torts, page 401.
We are, therefore, of opinion that both instructions P-5 and D-3 are objectionable for the reasons stated.
It is not likely that the questions contained in the remaining assignments of error will be raised upon a new trial; and we, therefore, refrain from discussing them.
For the reasons stated, the judgment of the trial court is reversed, the verdict of the jury set aside, and the case remanded for a new trial, in accordance with the views herein expressed.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320457/ | 685 S.E.2d 348 (2009)
300 Ga. App. 355
MORRIS
v.
The STATE.
No. A09A0537.
Court of Appeals of Georgia.
October 7, 2009.
Jason R. Hasty, for Appellant.
Ashley Wright, Dist. Atty., Madonna M. Little, Charles R. Sheppard, Asst. Dist. Attys., for Appellee.
JOHNSON, Presiding Judge.
This case requires us to apply the decision of the Supreme Court of Georgia in Humphrey v. Wilson.[1] In Humphrey, a majority of the Supreme Court concluded as a matter of law that, based on the facts and circumstances of the case, a mandatory minimum sentence of ten years in prison with no possibility of parole, as well as registration as a sexual offender,[2] constituted cruel and unusual punishment for a seventeen-year-old defendant convicted of the aggravated child molestation of a fifteen-year-old victim.[3] In response to the Humphrey dissent's prescient warning that the decision could entitle numerous other defendants to be discharged from custody,[4] the Supreme Court set up standards to be considered in determining if the facts and circumstances of a case were sufficiently similar to those in Humphrey so as to require a similar result.[5]
Here, we apply those standards to the case of John Michael Morris, who was 15 years old at the time he committed the aggravated child molestation of his 13-year-old brother, A.M., by having A.M. place his mouth on Morris' penis.[6] Morris was also accused of child molestation pursuant to OCGA § 16-6-4(a), for placing his hand on A.M.'s penis, but the jury found Morris not guilty of that *349 offense. Morris appeals from his conviction claiming, among other things, that his sentence to a mandatory ten years in prison with no possibility of parole constituted cruel and unusual punishment. We transferred the appeal to the Supreme Court of Georgia to consider Morris' constitutional challenge,[7] but the Supreme Court returned the appeal to us, finding that "the application of Humphrey to the facts of this case does not invoke [the Supreme Court's] constitutional question jurisdiction." Because we find that Humphrey requires that Morris' sentence be set aside, we reverse and remand the case to the trial court with direction to dismiss the proceedings against Morris.
On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.[8]
So viewed, the evidence shows that in November 2004, Morris returned to live in his family's home in Columbia County after spending a year at a residential treatment facility for children with emotional problems. Morris' mother had a boyfriend in North Carolina, and she testified that when she was in North Carolina to stay with her boyfriend, she left her sons under the supervision of her estranged husband, who was the boys' stepfather. The stepfather resided approximately 20-30 minutes away, but the mother testified that he would "come over and ... make sure everything's fine" with the boys. At some point in January or February 2005, at a time when the boys' mother was in North Carolina and when Morris and A.M. were 15 and 13 years old, respectively, Morris asked A.M. to put Morris' penis in his mouth, and A.M. complied.
After A.M. told his mother that he thought he might be "gay" because of sexual acts he committed with Morris, Morris' mother contacted the police. Morris admitted that he had initiated oral sex with his brother on three occasions on unspecified dates in North Carolina and in Georgia.
Morris' mother provided a statement to police stating that A.M. felt he had been "tricked" because after he put Morris' penis in his mouth, Morris refused to put A.M.'s penis in his mouth and told him "[t]hat's gay." A.M. testified that he felt tricked because he thought that Morris was going to let him play with his video games if he did what Morris requested. A jury found Morris guilty of aggravated child molestation in September 2005, and this appeal followed.
On appeal, Morris raises a host of constitutional challenges to his conviction and sentencing. With the exception of his claim that his sentencing constituted cruel and unusual punishment, however, Morris' constitutional challenges were not asserted until after the guilty verdict was returned. As a result, Morris is barred from raising these claims on appeal.[9]
Like the defendant in Humphrey, Morris bases his contention that his sentence constitutes cruel and unusual punishment in large part on the fact that the 2006 amendment to OCGA § 16-6-4 makes the conduct for which he was convicted a misdemeanor.[10] As described in Humphrey, that amendment provides that if a person engages in sodomy with a victim who "is at least 13 but less than 16 years of age" and if the person who engages in the conduct is "18 years of age or younger and is no more than four years older than the victim," the person is guilty of the new crime of misdemeanor aggravated child molestation.[11] Neither the original statute nor the amendment provides for enhanced punishment *350 based on any familial relationship between the defendant and the victim.
In Humphrey, the defendant was convicted of aggravated child molestation based on an act of sodomy that he committed against a 15-year-old girl when he was 17 years old.[12] The Supreme Court held that the defendant's punishment, as a matter of law, was grossly disproportionate to his crime and that it constituted cruel and unusual punishment under both the Georgia and United States Constitutions.[13] Because the minimum punishment for the crime for which the defendant was convicted was cruel and unusual, the Supreme Court held that his sentence must be set aside and that he must be released from custody.[14]
The dissent in Humphrey noted that the General Assembly expressly provided that the 2006 amendment to OCGA § 16-6-4 would not apply retroactively, and that the majority's decision meant "any and all defendants who were ever convicted of aggravated child molestation and sentenced for a felony under circumstances similar to [the defendant's] are, as a matter of law, entitled to be completely discharged from lawful custody...."[15] The majority responded by providing a list of factors that would indicate when a case was sufficiently similar to Humphrey to require a similar result:
[T]he dissent's concerns about the impact of today's opinion are unfounded. In point of fact, today's opinion will affect only a small number of individuals whose crimes and circumstances are similar to [the defendant's], i.e., those teenagers convicted only of aggravated child molestation, based solely on an act of sodomy, with no injury to the victim, involving a willing teenage partner no more than four years younger than the defendant.[16]
We first note that we have struggled over categorizing A.M. as a "willing" teenage partner, as the Supreme Court categorized the victim in Humphrey, given that the victim here, like the victim in Humphrey, was under the age of consent.[17] While A.M. testified that he felt "tricked" into committing the sexual act, the state does not argue that Morris used physical force or threats to compel A.M. to comply with his request. Instead, the evidence was that Morris asked A.M. to commit the sexual act, and that A.M. later told his mother that he thought he might be "gay" because of what he and Morris had done. In any event, the jury was not required to make a finding on this issue because aggravated child molestation does not require the use of force or coercion and is based solely on the commission of an act of sodomy with an underage victim.[18] As a result, we find that A.M. was no less a "willing" teenage partner than the underage victim in Humphrey.
In considering whether this case is otherwise sufficiently similar to Humphrey, we note that both the Supreme Court of Georgia and this Court have been presented with cases in which the crimes and circumstances have been found not to share each of the factors described in Humphrey.[19] Here, *351 however, like the defendant in Humphrey, Morris was a teenager convicted only of aggravated child molestation, based solely on an act of sodomy, with no claimed injury to the victim, involving a teenage partner no more than four years younger than he was. As a result, we find that the crime and circumstances in this case meet each of the factors listed in Humphrey as important in determining whether a case is sufficiently similar to require a similar result. The fact that Morris and the victim were 15 and 13 years old, whereas the defendant and victim in Humphrey were 17 and 15 years old, and the fact that Morris and the victim were brothers, are not relevant considering the factors set out by the Supreme Court in Humphrey. Nor has the General Assembly provided that those differences have any bearing on cases arising out of OCGA § 16-6-4.
Applying the constitutional standards adopted by the Supreme Court of Georgia,[20] we find that Humphrey requires that Morris' sentence be set aside. Moreover, given that the minimum punishment as imposed against Morris was unconstitutional and because there was no other law in existence at the time under which he could be sentenced, Morris cannot be resentenced.[21] Therefore, we are constrained to direct that the trial court dismiss the proceedings against Morris and that he be discharged from custody.[22]
Judgment reversed and case remanded with direction.
ELLINGTON and MIKELL, JJ., concur.
NOTES
[1] 282 Ga. 520, 652 S.E.2d 501 (2007).
[2] The trial court in Humphrey also sentenced the defendant to an additional year to serve on probation following his incarceration for the ten-year mandatory minimum.
[3] Humphrey, supra at 532(3)(g). 652 S.E.2d 501.
[4] Id. at 541, 652 S.E.2d 501 (Carley, J., concurring in part and dissenting in part).
[5] Id. at 532(3)(g), 652 S.E.2d 501.
[6] OCGA § 16-6-4(c) ("A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.").
[7] See Ga. Const. Art. VI, Sec. VI, Par. II(1).
[8] Daniel v. State, 296 Ga.App. 513(1), 675 S.E.2d 472 (2009).
[9] Hardeman v. State, 272 Ga. 361, 362, 529 S.E.2d 368 (2000).
[10] See OCGA § 16-6-4(d)(2).
[11] In addition, the 2006 amendment to OCGA § 42-1-12 relieved persons who committed such acts from having to register as sexual offenders. See OCGA § 42-1-12(a)(10)(A)(ix).
[12] Humphrey, supra at 520, 652 S.E.2d 501.
[13] Id. at 530(3)(c) and 532(3)(g), 652 S.E.2d 501.
[14] Id. at 533(4), 652 S.E.2d 501.
[15] Id. at 540-541, 652 S.E.2d 501 (Carley, J., concurring in part and dissenting in part).
[16] Id. at 532(3)(g), 652 S.E.2d 501.
[17] Chase v. State, 285 Ga. 693, 696(2), 681 S.E.2d 116 (2009) ("The age of consent in Georgia is 16. In other words, generally speaking, it is a crime to have physical sexual contact with a person 15 years of age or younger.") (footnote omitted); see also State v. Collins, 270 Ga. 42, 43, 508 S.E.2d 390 (1998) (The term "against the victim's will" generally means without consent, and the fact that a victim is under the age of consent may supply the "against her will" element in a forcible rape case because it shows the victim was incapable of providing legal consent.). We also note that, while only the victim was under the age of consent in Humphrey, here both the victim and Morris were under the age of consent. As a result, A.M. could have been charged with aggravated child molestation based on his physical sexual contact with Morris.
[18] See Brewer v. State, 271 Ga. 605, 606-607, 523 S.E.2d 18 (1999).
[19] See Mangrum v. State, 285 Ga. 676, 681(7), 681 S.E.2d 130 (2009) (defendant was not convicted solely of aggravated child molestation); Bragg v. State, 296 Ga.App. 422, 425, 674 S.E.2d 650 (2009) (victim was not a teenager at the time of the incident); see also Humphrey, supra at 526(3)(b), 652 S.E.2d 501 (distinguishing Widner v. State, 280 Ga. 675, 631 S.E.2d 675 (2006), on the basis that the defendant in Widner was more than four years older than the victim).
[20] See State v. Eastwood, 243 Ga.App. 822, 824, 535 S.E.2d 246 (2000).
[21] See Humphrey, supra at 533(4), 652 S.E.2d 501.
[22] Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320463/ | 226 Kan. 688 (1979)
602 P.2d 1332
STATE OF KANSAS, Appellee,
v.
RICHARD D. WILLIAMS, Appellant.
No. 50,266
Supreme Court of Kansas.
Opinion filed December 1, 1979.
Harold E. Flaigle, of The Law Offices of Michael D. Wilson, of Wichita, argued the cause and was on the brief for the appellant.
James Turner, assistant district attorney, argued the cause, and Robert T. Stephan, attorney general, Vern Miller, district attorney, and Robert J. Sandilos, assistant district attorney, were with him on the brief for the appellee.
Per Curiam:
This is an appeal from convictions of two counts of aggravated kidnapping, two counts of rape, two counts of aggravated robbery, two counts of attempted first degree murder, two counts of aggravated burglary and the sentences given thereon.
The facts involved in the convictions center around three separate attacks on three separate victims. They will necessarily be somewhat extended, although we do not propose to give all the gruesome details. In presenting the facts the accused will be designated as defendant.
On November 17, 1977, the first victim went to her apartment at 431 Pennsylvania Avenue in Wichita for lunch. A black male, later identified as the defendant, knocked on her door and asked where another person lived. She told him she did not know the individual, and suggested he go next door and ask. The defendant then pushed his way inside, shoving the victim to the floor. As a *689 result of the defendant's forced entry, she sustained a split lip, shoulder sprain, and a head wound. The defendant then told her to lock the front door which she did. He pulled a knife with a six inch blade, forced the victim into the bedroom and told her to disrobe. She disrobed at knife point. The defendant demanded money. The victim dumped her purse on the floor and gave the defendant $3.00 in change. He then told her to lie down on the couch and with knife in hand, raped her. After completing the act the defendant directed the victim from room to room searching for more money. He then returned her to the couch where he again raped her at knife point. He directed her to dress and drive him somewhere. The defendant took his victim to her car and directed that she drive him around. She was admonished not to call the police. He eventually directed her to 24th and Lorraine in Wichita, where he got out of the car. She gave a description of her assailant to the Wichita Police Department.
The victim tentatively identified the defendant, who was lightly bearded when he attacked her but clean shaven at the lineup. She positively identified the defendant at trial.
The second victim was sleeping at her home at 446 Cleveland in Wichita at 11:00 a.m. on December 12, 1977, when a black male knocked on her door. The man, later identified as the defendant, asked if Pete was there, then asked to use her phone. When told that she did not have a phone, the defendant grabbed her wrist and forced his way into her apartment. He locked the door and forced the victim to the bedroom, striking her with his fist. He then produced a knife with a six inch blade and told her to lie on the bed so that he could rape her. The victim advised the defendant that it was "that time of the month." He disrobed her to verify her statement, then bound her hands and searched her apartment for valuables.
The defendant then untied the victim, seated her on a chair, and forced her at knife point to take a white pill of some sort. He then took her back into the bedroom, forced her to the bed, and fondled her. The victim positively identified the defendant at trial and at a pretrial lineup.
On December 28, 1977, the third victim was getting ready to take her young daughter to the babysitter and go to work when a black male knocked on the door and asked to use the phone. He was let in the apartment for that purpose. He then lunged at the *690 victim's throat and began choking her. She struggled briefly but ceased in order to avoid further serious injury. The defendant went through her purse, took her money and rummaged through the house in search of more valuables. In response to the victim's pleas to leave her and her daughter alone, the defendant struck her. She obeyed the defendant's command to strip. He demanded her wedding ring, her engagement ring and her watch. Then, with a screwdriver in his hand, the defendant proceeded to rape the victim.
The defendant wanted the victim's Lloyds AM-FM Stereo. He told her to take the stereo out to her car, and that if she did anything he would kill her daughter. The victim was forced to tie up her daughter with speaker wires. The defendant then tied up the victim and gagged both of them. After expressing displeasure because the victim could stand up, he told her and her daughter to lie on the bed and placed two chairs over them to prevent movement.
At the foot of the victim's bed was a box of Christmas decorations. The defendant lit a number of matches and dropped them into the box, setting the contents on fire. He then set another box of papers on fire, pulled a desk across the bedroom door and left. When a relative of the victim called shortly thereafter, she managed to knock the receiver off the hook and ask for help. The police were notified and the fires set by the defendant were put out. The victim described her assailant and his apparel to the police. She also identified the defendant at trial as her assailant.
Other facts will be stated as we discuss the issues to which they apply.
The defendant has appealed from the convictions on numerous grounds.
1. The appellant first contends that the trial court erred in admitting evidence seized from 449 Indiana on December 28, 1977, under a search warrant which he claims relied in part on information gathered during an illegal entry and search of appellant's apartment, and was therefore inadmissible under the "fruit of the poisonous tree" doctrine.
A determination of this issue requires facts not directly pertaining to the crimes previously presented.
At 8:47 a.m. on December 28, 1977, Wichita Police Officer Bolinger received a report of the third victim's rape. He checked *691 the neighborhood of 1414 East Third, and received a radio call from Officer Krist, who advised that a person fitting the suspect's description lived at 449 Cleveland. The description, taken from the victim by Officer Merrell, included the fact that her Chrysler automobile and stereo were missing. About the time the defendant's residence was located, the victim's Chrysler automobile was found abandoned at Third and Ohio Streets with none of the missing property inside. Officer Krist subsequently contacted the officers who had assembled at 449 Cleveland and advised them that the correct address was actually 449 Indiana, one block west of Cleveland. The officers proceeded there and approached the front door. Officer Patrick knocked loudly on the door, commenting that he heard something inside. Minutes later Officer Bolinger went around to the rear door of the residence and opened the screen door.
As he attempted to look into the window in the door, he pushed his head against it and the door opened. At that time, believing someone to be inside, he went in. He was joined by Officer Patrick who went inside with him. The officers searched the inside for the appellant and after finding no one they left the dwelling. Before leaving, Officer Bolinger observed a key ring, some welding gloves, and a man's billfold lying on top of the television in the living room. Bolinger felt the keys might be those still missing from the third victim's apartment, and mentioned those keys to Detective Allen who arrived later at the scene.
Detective Allen was advised the victim had identified a mugshot of the appellant, Richard Williams, as her assailant. He was also advised by Detective King and Officer Bolinger of details of the crime and the officers' earlier attempt to arrest the appellant at his house. Detective Allen and an assistant district attorney who accompanied him to the scene returned to the district attorney's office where a search warrant was drawn for 449 Indiana. A search warrant was obtained based on Detective Allen's affidavit.
Seized during execution of the search warrant at the defendant's residence that afternoon were items introduced as exhibits.
The objection made by appellant's counsel reads:
"Your Honor, my objection to these exhibits and the photographs that they depict is strictly on the ground that they're inadmissible because there was no probable cause for Officer Bolinger to have not only gotten in the door but to have had an opportunity to observe the keys as depicted in State's proposed Exhibit 73."
*692 Over the objection of the State as untimely the trial court entertained appellant's motion but denied it for reasons stated:
"At that time the initial intrusion was not an intrusion, based on the evidence before the Court, for a search of items, but for a search of a person upon which there would have been probable cause for such an entry and search in view of the evidence on the record.
"Second, that the discovery of the evidence was inadvertent as indicated and testified to by Officer Bolinger who said he was looking for the person of Richard D. Williams."
The trial court summarized the evidence pertinent to its ruling on the motion as follows:
"The evidence summarized, or a portion of the evidence summarized, dealing with matters that preceded the issuance of a search warrant for items of personal property were that officers of the Wichita Police Department, based on information given them by an alleged rape victim in a very short period of time, the rape victim having identified a photograph of Richard D. Williams, proceeded to the residence of Richard D. Williams, and in knocking at the front door one of the officers who is before the Court heard what he thought was a sound of someone inside. I think that the entry in the back door in the manner indicated, or probably in any manner, would have been proper at that point in a search for the individual, Richard D. Williams."
The trial court made the following comments concerning the search warrant affidavit of Detective Allen:
"I would call special attention to the testimony of Detective Allen, that in his determination about procuring or attempting to procure a search warrant for physical items after entry had been gained looking for the person of Richard D. Williams, that he, Detective Allen, said that what information he has about the keys from Officer Bolinger, or whatever source, was vague and that they had no significance at all in relating that information to the Court in the application for a search warrant."
We are forced to agree with the conclusion of the trial court. The search warrant obtained on Detective Allen's affidavit was not "tainted" by the officer's initial entry.
Even though we assume the illegality of the search of defendant's apartment we would be forced to recognize the limitation this court has placed on the "fruit of the poisonous tree" doctrine. In State v. Childers, 222 Kan. 32, 563 P.2d 999 (1977), we stated at pages 40-41 of the opinion:
"Assuming the illegality of the search, the question narrows to one of determining whether defendant's statements were brought about by that illegality rather than by means sufficiently distinguishable to be purged of the primary *693 taint.... The doctrine is inapplicable, however, where the state learns of the evidence from an independent source or where the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.... [T]he issue whether challenged evidence was so connected with an illegal search as to be tainted was presented on a motion to suppress....
"`... This was the issue of fact which had to be determined by the district court at the hearing on the motion to suppress.'"
2. The appellant further contends the affidavit on which the search warrant was obtained was insufficient to provide probable cause that the items listed could be found inside appellant's residence.
The affidavit stated the following facts: The third victim identified the defendant by mug-shot as her assailant and her car was found abandoned a few blocks from the appellant's house, minutes after it was stolen. The car did not contain the stereo or any other property taken from the victim's apartment, although she herself placed the stereo in the car at the direction of defendant. The defendant's car was parked at his residence at 449 Indiana.
In considering whether statements contained in an affidavit are sufficient to show probable cause for a search warrant, this court has stated in State v. Morgan, 222 Kan. 149, 151, 563 P.2d 1056 (1977):
"Sufficient facts must be placed before the issuing magistrate to enable him to make an intelligent and independent determination that probable cause exists. Bald conclusions, mere affirmations of belief, or suspicions are not enough and, while an affidavit may be based on hearsay, there must be sufficient affirmative allegations of fact as to affiant's personal knowledge to provide a rational basis upon which a magistrate can make a judicious determination of probable cause. [Citations omitted.]
"`Probable cause' to issue a search warrant is like a jigsaw puzzle. Bits and pieces of information are fitted together until a picture is formed which leads a reasonably prudent person to believe a crime has been or is being committed and that evidence of the crime may be found on a particular person or in a place or means of conveyance."
We find no merit in appellant's contention.
3. The appellant next contends that the trial court erred as a matter of law in failing to sustain his motion for discharge on count one, aggravated kidnapping, at the close of the State's case.
Count one of the information charged the appellant as follows:
"[O]n or about the 28th day of December A.D., 1977, one RICHARD D. WILLIAMS did then and there unlawfully, willfully take and confine the persons of [the victims] by force with the intent to hold the said [the victims] to facilitate the *694 commission of the crimes of Rape and Aggravated Robbery and did inflict bodily harm upon the person of [the victim];"
At the close of the State's evidence, the information was amended to include in count one "to facilitate flight." Shortly thereafter, defense counsel moved for discharge on count one, arguing that:
"I think the evidence could indicate the assailant, whoever he may be, did remove both the alleged victim and her child from at least the living room or dining area into a bedroom and that could be for nothing more than convenience or comfort and no other reason."
The jury instruction was consistent with count one as finally amended.
The appellant contends that the taking and confinement of the third victim and her child fail the test stated in State v. Buggs, 219 Kan. 203, Syl. ¶ 10, 547 P.2d 720 (1976):
"If a taking or confining is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
"(a) Must not be slight, inconsequential and merely incidental to the other crime;
"(b) Must not be a kind inherent in the nature of the other crime; and
"(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detention."
The third victim testified that the appellant struck and robbed her and then rummaged through her house for valuables. He raped her while armed with a screwdriver, stole her stereo, and threatened to kill her child. He forced the victim to tie up her child and then bound and gagged the mother. The defendant placed two chairs over them as they lay on the bed to prevent them from moving.
Appellant contends that his actions as recited above are akin to "[t]he removal of a rape victim from room to room within a dwelling solely for the convenience and the comfort" of the rapist, State v. Buggs, 219 Kan. at 216, and thus failed to constitute kidnapping as a matter of law.
Applying the test laid down in State v. Buggs, 219 Kan. 203, to appellant's acts, the binding, gagging and securing of his victims by placing chairs over them, and placing a desk across the bedroom door, were not acts incidental to the crimes of rape or aggravated robbery, nor were those acts inherent in either crime. The appellant's acts further substantially lessened the risk of *695 detection of his crimes and facilitated flight. We find no merit in this contention.
4. The appellant next charges error in failing to sustain his motion, at the close of the State's case, as to count one, aggravated kidnapping, as it was multiplicitous with the charges of attempted murder in counts four and five of the information.
Appellant further contends that for the two different crimes aggravated kidnapping and attempted murder the State relied upon the facts concerning one event which took place in the third victim's apartment, i.e., the removal to the bedroom, the tying up of the third victim and her daughter, and setting fire to two boxes of papers in the bedroom.
The State contends that the rape of the third victim and the confining of her and her child could provide bodily harm sufficient to constitute aggravated kidnapping. It further contends that proof of the overt act of setting fires was neither necessary nor relied upon in establishing bodily harm to support kidnapping.
We have stated that multiplicity in a criminal pleading is the charging of a single offense in several counts. The State may not split a single offense into separate parts. Where there is a single wrongful act it generally will not furnish the basis for more than one criminal prosecution. State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978).
The test to be applied in this case was stated in State v. Cory, 211 Kan. 528, Syl. ¶ 1, 506 P.2d 1115 (1973):
"Where the same conduct of a defendant constitutes a violation of two statutory proscriptions the test of duplicitous offenses is whether each requires proof of an element of the offense which the other does not and if so the offenses are not duplicitous."
It was also stated in Cory at page 530:
"When two offenses are charged in separate counts of one information the test to be applied is not whether the facts actually proved at trial are used to support the conviction of two offenses, it is whether the necessary elements of proof of the one crime are included in the other."
The necessary element of the proof of the offense of attempted murder of the third victim and her daughter was the setting of the fires in the bedroom. This was not a necessary element of the offense of aggravated kidnapping; the threats and use of force were quite sufficient without such element.
*696 5. The appellant next contends the trial court erred as a matter of law in failing to sustain appellant's motion for discharge on count nine aggravated kidnapping at the conclusion of all the evidence. Count nine charged the taking and confining of the first victim with intent to hold her to facilitate flight and to facilitate the crime of rape.
What was the appellant's intention when he forced the victim to take him for a ride in her car after robbing and raping her twice? The jury was properly instructed on count nine. The jury no doubt thought the defendant wanted to get closer to his home and facilitate flight from the scene of his crimes as charged in the information.
We must not attempt to out-guess the jury. They heard the evidence and observed the demeanor of the witnesses.
6. The appellant suggests the trial court erred in instruction number two by failing to set out all the elements of the crime of aggravated kidnapping with regard to the third victim's child.
Count one does not attempt to charge the appellant with aggravated kidnapping of the child, but only the third victim, the mother of the child. The trial court instructed that bodily harm was inflicted only upon the third victim. The jury found the appellant guilty only of bodily harm to the third victim in count one. The trial court sentenced only on one count of aggravated kidnapping of the third victim not her child.
If appellant had any complaint on this issue it was to the language of the information. No objection was made thereto before the trial court.
We find no merit in this alleged error.
7. The appellant last contends that the trial court in sentencing appellant acted arbitrarily and without justification.
Appellant suggests that on each of the counts of which he was convicted the court imposed the maximum sentence allowable under K.S.A. 21-4501. A portion of the sentences were to run concurrently but the sentences on five counts were to run consecutively.
The appellant concedes the veracity of the test laid down in State v. Coe, 223 Kan. 153, 167, 574 P.2d 929 (1977), as following:
"Provided it is within statutory limits, a sentence fixed by the trial court will not be set aside on appeal unless it is so arbitrary and unreasonable it constitutes an abuse of judicial discretion. [Citations omitted.]"
*697 Appellant contends, however, the sentence imposed in this case was arbitrary and an unreasonable use of sentencing authority. He further argues that this is true in light of the fact that the trial court did not follow the "better practice" as enunciated in State v. Buckner, 223 Kan. 138, Syl. ¶ 9, 574 P.2d 918 (1977):
"When the sentence imposed by the trial court exceeds the minimum, it is better practice for the trial court to make, as part of the record, a detailed statement of the facts and factors considered by the court in imposing sentence. Such a record would be of great assistance to the appellate courts in determining whether the sentencing court has abused its discretion."
He contends the record is void of any such detailed statement of the facts and factors considered in imposing sentence in the instant case and in light of the excessive sentence imposed upon defendant, the case should be remanded for proper sentencing by the trial court.
The State challenges this last statement. It quotes in its brief from a lengthy colloquy the trial court engaged in with the appellant concerning its rationale for imposition of the sentence. We will not extend this opinion by quoting from the record. It will suffice to say that the trial court considered the factors set forth in K.S.A. 21-4606 in sentencing the defendant. The contention is without merit.
A careful examination of the record discloses no errors that would justify granting any relief to appellant.
The judgment is affirmed.
FROMME, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320401/ | 215 S.E.2d 40 (1975)
287 N.C. 360
STATE of North Carolina
v.
Fernando HUNT.
No. 43.
Supreme Court of North Carolina.
June 6, 1975.
*43 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Rafford E. Jones, Raleigh, for the State.
James W. Smith, Henderson, for appellant.
BRANCH, Justice.
Defendant assigns as error the trial judge's denial of his motion to suppress the in-court identification testimony of the prosecuting witness, Betty Sue Ratts Wright. Upon defendant's motion to suppress, the trial judge excused the jury and conducted a voir dire examination which disclosed the following relevant facts:
The prosecutrix testified that she knew the defendant to be the man who assaulted her "from the identification of what I saw *44 that morning." She further testified that she originally looked at some pictures of suspects, including defendant, but was unable to identify anyone positively. She told them that she thought defendant was the man but could not be sure until she saw him in person.
On 9 January defendant was in a room with a probation officer, and the prosecutrix observed him through a one-way mirror. At that time he was sitting down, had his hair braided, was wearing a cap, and did not speak. Apparently, at this time defendant was unaware that he was being observed. The prosecutrix told the officer that she thought that defendant was the man but could not be sure unless she heard him speak and saw him under substantially the same lighting conditions as existed on the morning of the assault.
About a month later she saw defendant in a lineup with eight other people, and she described the differing conditions at this second observation:
". . . The difference in the first lineup as opposed to the second lineup is that in the second lineup, he looked almost like he does now. In the first one, he had on a toboggan hat pulled down and he had his hair braided, he was sitting, and there was another man in the room in front of him and I couldn't see him all the time. Plus, I was looking through a one-way mirror and he was a lot further away than he was at the second lineup.
"I don't remember whether I asked the Sheriff or detective to have him stand up or have all of them stand up at the first lineup, but I told them at that time that I could not make an identification unless I heard him talk and stand. . . ."
She testified that she had a chance to observe his face at intervals of a minute several times during the twenty minutes or so he was in her trailer on the morning of the incident. She further stated that there was sufficient light from street lights shining into the trailer to make an identification, particularly since, when she observed his face, he was within one foot of her.
Testimony of law enforcement officers indicated that defendant was fully informed of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, and that he understandingly and voluntarily waived the presence of counsel at the lineup.
Bobby Hamm of the Vance County Sheriff's Department testified that at the second encounter each of the men was required to say three phrases: "This is your neighbor."; "Do you have any grease?"; and "Would you take me to Raleigh?". He then described Mrs. Wright's reaction during the second confrontation:
". . . Mrs. Wright was standing right beside me in front of each man as he made the statements, approximately two feet from them. She didn't change at the moment when he made the statements; she listened to the rest of them. He was the third man who made the statements. Her face became flushed, that was all. She identified the man as being the man who attacked her. I was present when he was warned of his constitutional rights and when he was advised if he could not afford an attorney one would be provided for him. He voluntarily stood in the lineup. . . ."
Defendant testified on voir dire that he had no recollection of being warned of his rights and that, after his initial refusal to stand in a lineup, the police told him that he had to do so. Recalled, prosecutrix stated that she was "not sure if I could identify him today if he was dressed differently."
At the conclusion of the voir dire hearing, Judge Martin made the following findings of fact and conclusions of law:
"THE COURT: The Court finds that Mrs. Wright, formerly Miss Ratts, spent a considerable period of time with her assailant up to at least twenty minutes; that she was with him under adequate artificial interior and exterior light in her trailer and, on several occasions was facing *45 her assailant their heads being approximately a foot apart, facing him directly and intimately; that in Court Mrs. Wright pointed to the defendant Hunt as the one who raped her in her home on the twenty-ninth day of December, 1973; that Mrs. Wright was positive as to her input identification of the defendant based on what she saw at the time that she was raped and on nothing more; that sometime thereafter, Mrs. Wright was showed photographs of a number of persons and was unable to recognize any photograph as being of the man who raped her; that thereafter, a lineup was conducted in the early part of January, at which time the defendant along with several others, was in the lineup and although she felt almost positive that the defendant was the person who raped her, she was unable to make a positive identification for the reason that she was some distance away looking through a glass and the defendant had on a hat and his hair was braided, and that on the day that she was raped, her assailant did not have on a hat, nor was his hair braided, but that it was an Afro hairdo on the twenty-ninth day of December, 1973. The Court further finds as a fact that on the twenty-eighth day of January, 1974, a lineup was conducted at the Sheriff's office, at which time some persons, all black, including the defendant, was placed in the lineup; that before the defendant was placed in the lineup, he was warned of his constitutional rights under the `Miranda' decision and was specifically warned that he had the right to have counsel present at the lineup and, if he was unable to do so, the Court would appoint counsel for him; that the defendant knowingly, intelligently, voluntarily and understandingly waived his right to counsel in the lineup and freely consented to participate in the lineup. And the Court finds as a fact that the defendant freely, voluntarily, understandingly, and intelligently waived his right to counsel at the out-of-court confrontation for identification by the prosecutrix. The Court further finds as a fact that the defendant was represented by counsel at the preliminary hearing, and that, at the preliminary hearing, Mrs. Wright identified the defendant as the person who assaulted her at her residence on the twenty-ninth day of December, 1973. The Court finds and determines that, from clear and convincing evidence, the in-court identification of the defendant Hunt is of independent origin based solely on what she saw at the time of the assault and rape and does not result from any out-of-court confrontation or from any photograph or from any lineup or any pretrial identification procedures suggestive and conducive to mistaken identification, and the defendant's motion to suppress the testimony as to identification is overruled.
EXCEPTION NO. 1"
Defendant argues that he was denied due process because of suggestive pretrial identification procedures. He points specifically to the fact that he was the only person who appeared in all the pretrial procedures and to the fact that he was exhibited to the prosecuting witness singly. In support of this contention, he relies strongly on Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969).
In Foster defendant was charged with armed robbery, and the only eyewitness to the alleged crime failed to identify defendant at a lineup in which defendant was wearing a leather jacket similar to the one worn by the robber and in which defendant, who was six feet tall, was shown with two people who were about five feet six inches tall. Only a tentative identification resulted from a one-to-one confrontation which took place after the witness requested that he be allowed to speak to defendant. Positive identification occurred at a second lineup with five men in which defendant was the only person who had appeared at the first lineup. At trial the witness testified as to his identification of defendant at the *46 lineup and also made an in-court identification.
In a majority opinion by Justice Fortas, Justices Black, Harlan, White, and Stewart dissenting, the Court held the admission of the identification evidence to be error. The Court, in part, stated:
"The suggestive elements in this identification procedure made it all but inevitable that David would identify petitioner whether or not he was in fact `the man.' In effect, the police repeatedly said to the witness, `This is the man.' See Biggers v. Tennessee, 390 U.S. 404, 407, 88 S. Ct. 979, 980, 19 L. Ed. 2d 1267 (dissenting opinion). This procedure so undermined the reliability of the eyewitness identification as to violate due process."
The United States Supreme Court considered a similar question in the case of Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). There the defendant was charged with a rape which allegedly occurred on 22 January 1965. The State's evidence, in part, consisted of testimony by the prosecuting witness concerning a pretrial showup during which two detectives walked the defendant by the prosecuting witness, at which time defendant was directed to say "Shut up or I will kill you." This confrontation occurred on 17 August 1965. At trial, the prosecuting witness testified that she had "no doubt" about her identification. Finding that the testimony was properly allowed to go to the jury, the Court, inter alia, stated:
"We turn, then, to the central question, whether under the `totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.. . ." (Emphasis supplied.)
The factors to be considered in evaluating the likelihood of misidentification as enunciated in Neil were applied by this Court to the facts in State v. Henderson, 285 N.C. 1, 203 S.E.2d 10. The facts in the case sub judice, in Neil, and in Henderson exhibit striking similarities. In Henderson there was no lineup, but there was a showup conducted within twenty-four hours after the crime, at which time the rape victim identified the defendant as her assailant. She did not testify as to the showup at trial, but made a positive in-court identification of defendant as the man who raped her. Finding no error in the admission of the evidence, we stated:
"Since Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, the general rule has been that evidence unconstitutionally obtained is excluded in both State and Federal Courts as essential to due processnot as a rule of evidence but as a matter of Constitutional law. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345; State v. Colson, 274 N.C. 295, 163 S.E.2d 376. The test under the due process clause as to pretrial identification procedures is whether the totality of the circumstances reveals pretrial procedures so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend fundamental standards of decency, fairness and justice. Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402; Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199; Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183; State v. Haskins, 278 N.C. 52, 178 S.E.2d 610; State v. Austin, 276 N.C. 391, 172 S.E.2d 507; State v. Rogers, supra.
* * * * * *
"The practice of showing suspects singly to persons for purposes of identification has been widely condemned. Stovall v. Denno, supra; State v. Wright, supra *47 [274 N.C. 84, 161 S.E.2d 581]. However, whether such a confrontation violates due process depends on the totality of the surrounding circumstances. Stovall v. Denno, supra.
"We recognize that there are circumstances under which the single exhibition of a suspect may be proper. The landmark case of Stovall v. Denno, supra, held that the showing of a single suspect in a hospital room while he was handcuffed to police officers did not violate due process because the possibility of the impending death of the witness required an immediate confrontation. Our Court has held that there was no violation of due process when there were `unrigged' courtroom and station house confrontations which amounted to single exhibitions of the accused. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884; State v. Bass, supra [280 N.C. 435, 186 S.E.2d 384]; State v. Haskins, supra; State v. Gatling, 275 N.C. 625, 170 S.E.2d 593. Similarly we have recognized that a confrontation which takes place when a suspect is apprehended immediately after the commission of the crime may be proper. State v. McNeil, supra [277 N.C. 162, 176 S.E.2d 732].
* * * * * *
"It is well established that the primary illegality of an out-of-court identification will render inadmissible the in-court identification unless it is first determined on voir dire that the in-court identification is of independent origin. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441; State v. Bass, supra; State v. Austin, supra; State v. Rogers, supra; State v. Wright, supra."
A superficial reading of Foster and Neil gives the initial impression that the Court's holding in Neil sub silentio, reversed Foster. See Shapiro, Searches, Seizures and Lineups, 20 New York Law Forum 217. However, the cases are readily distinguishable in that in Foster the Court did not consider whether the in-court identification was of independent origin. In Neil, on the other hand, the central question was "whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive." We think that the last stated query is the central and decisive question in the assignment of error before us. At the threshold of this question, we concede that the one-to-one confrontation and the showing of defendant in all of the pretrial identification procedures were suggestive. We must therefore decide whether the totality of the circumstances discloses reliability of identification. The prosecuting witness had ample opportunity to observe her assailant. The record shows that she was with him for about twenty minutes, at times in close and intimate proximity at a place where the exterior lights made identification possible. She testified, "I got a good look at him when I turned the lights on. . . . The street lights were shining in the room and I could see his face; how tall he was and what size man he was. At the time I observed his face, he was within a foot." Further, her description of his facial characteristics permitted a police specialist to prepare an adequate composite picture of defendant. Her attention to detail was further denoted by the fact she was able to describe differences in the hair and beard of defendant as she viewed him at the showup, lineup, and trial as compared to his appearance on the day that she was attacked.
Certainly the period which elapsed between the day of the attack and the positive identification did not constitute such passage of time as would be conducive to misidentification. Compare Neil v. Biggers, supra, where the crime occurred on 22 January 1965, and identification was not finally made until 17 August 1965.
The level of certainty demonstrated by the witness might be questioned because she did not positively identify defendant from photographs. She explained her failure to positively identify defendant from the photographs with these statements: "I *48 wouldn't identify anybody from a picture in anything as serious as this. I told them I thought this was the man but I could not be sure until I saw him in person." The prosecuting witness also failed to identify defendant when she observed him through a one-way mirror as he was sitting in a room in the sheriff's office. In this connection, she said:
". . . I didn't hear him talk. He had his hair braided. He had a cap on. I told him I thought that was the man, but I could not be sure unless I heard him talk, unless I saw him in the same light that I saw him that night. . . ."
The prosecuting witness's failure to make a positive identification from photographs or from the showup appears more strongly to evince a commendable resolution to avoid misidentification than to disclose uncertainty of identification.
The trial judge's findings at the conclusion of the voir dire as to the admissibility of the identification testimony were supported by clear, competent, and convincing evidence. These findings are, therefore, conclusive and binding on this Court. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884; State v. McVay, 277 N.C. 410, 177 S.E.2d 874; State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534, cert. denied, 400 U.S. 946, 91 S. Ct. 253, 27 L. Ed. 2d 252. These findings, in turn, support the trial judge's conclusion of law that the "in-court identification of the defendant Hunt is of independent origin based solely on what she saw at the time of the assault and rape and does not result from any out-of-court confrontation or from any photograph or from any lineup or from any pretrial identification procedures suggestive and conducive to mistaken identification." State v. McVay, supra.
We hold that the trial judge correctly overruled defendant's motion to suppress the identification testimony.
Defendant next assigns as error the denial of his motion for mistrial based upon improper cross-examination of a defense witness. During the cross-examination of Richard Vaughan, who testified to defendant's good character and reputation, the following exchange occurred between the witness and the assistant solicitor:
"MR. ALLEN: Q. Mr. Vaughan, you say you have known him for a long time?
A. Yes, sir.
Q. Do you know of his police record?
THE WITNESS: Beg your pardon?
Q. Do you know of his police record?
A. No, I don't know about that.
Q. Do you know that he has served time in the penitentiary?
MR. SMITH: Object, Your Honor.
THE COURT: Overruled.
A. No, I didn't know that.
Q. You know he is now on probation
MR. SMITH: Object, Your Honor.
THE COURT: Overruled.
Q. for possession of marijuana and assault?
A. I did not know that.
Q. And if you had know [sic] this, you wouldn't have given him the good character and reputation you did, would you?
THE WITNESS: Say that again, please.
Q. If you had known he had served time for burning property and knew that he was now on probation for possession of marijuana and assault, you would not have given him the good reputation that you just gave him, would you?
A. If I had know [sic] that, I couldn't have said that."
The Court shortly thereafter adjourned for the day. The following morning, upon the convening of Court, defendant's counsel moved for mistrial. Judge Martin denied the motion but withdrew the challenged testimony from the consideration of the jury under the following instructions:
*49 "THE COURT: Members of the jury, the witness, Richard Vaughan, the last witness who testified for the defendant, and testified as to the general character and reputation of the defendant, was asked a number of questions on cross examination by the Solicitor. The first question asked on cross examination was: Mr. Vaughan, you say you have known him for a long time. Answer: Yes, sir. Members of the jury, there were a number of other questions asked by the Solicitor of the witness, Richard Vaughan, two of those questions under objection by defendant's counsel, and the Court overruled the objection. I now reverse my ruling and sustain the objection, not only to those two questions, but I instruct you that you will not consider for any purpose the other questions propounded by the Solicitor. The Court instructs you that you will disregard each of those questions propounded by the Solicitor of the witness, Mr. Vaughan, and erase the matter from your minds. You will disabuse your minds of those questions on cross examination by the Solicitor of the witness, Richard Vaughan.
"Members of the jury, questions are not evidence. Questions by counsel or by the Solicitor are not evidence, they are simply questions. Evidence is the sworn testimony that comes from the lips of the witnesses on the stand."
It is a well-established rule in this jurisdiction that a character witness may not be asked on cross-examination whether he has heard of particular acts of misconduct by defendant. State v. Green, 238 N.C. 257, 77 S.E.2d 614; State v. Robinson, 226 N.C. 95, 36 S.E.2d 655; State v. Shinn, 209 N.C. 22, 182 S.E. 721; State v. Canup, 180 N.C. 739, 105 S.E. 322. Nor may such a witness be asked whether he would consider one to have good character who was guilty of such misconduct. See Woodie v. North Wilkesboro, 159 N.C. 353, 74 S.E. 924.
Thus, this assignment of error is resolved to the question of whether the withdrawal of this evidence from the jury under proper instructions cured the original error. Normally, where evidence is erroneously admitted but later withdrawn, under instructions by the Court that the jury should disregard such testimony, the error in admission is considered harmless. State v. Crowder, 285 N.C. 42, 203 S.E.2d 38; State v. Perry, 276 N.C. 339, 172 S.E.2d 541; State v. Welch, 266 N.C. 291, 145 S.E.2d 902. See generally 1 D. Stansbury, North Carolina Evidence § 28 (Brandis Rev.). Justice Seawell, writing for this Court in State v. Strickland, 229 N.C. 201, 49 S.E.2d 469, well stated the test to be applied in such a situation:
"In appraising the effect of incompetent evidence once admitted and afterwards withdrawn, the Court will look to the nature of the evidence and its probable influence upon the minds of the jury in reaching a verdict. In some instances because of the serious character and gravity of the incompetent evidence and the obvious difficulty in erasing it from the mind, the court has held to the opinion that a subsequent withdrawal did not cure the error. But in other cases the trial courts have freely exercised the privilege, which is not only a matter of custom but almost a matter of necessity in the supervision of a lengthy trial. Ordinarily where the evidence is withdrawn no error is committed. [Citations omitted.]"
Whether instructions can cure the prejudicial effect of such statements must depend in large measure upon the nature of the evidence and the particular circumstances of the individual case. State v. Aldridge, 254 N.C. 297, 118 S.E.2d 766.
State v. Choate, 228 N.C. 491, 46 S.E.2d 476, provides particular guidance in instant case. In Choate, the defendant was charged with abortion and murder. Testifying in his own behalf, he denied that he had given the deceased any abortion-inducing medication. On cross-examination the solicitor questioned the defendant in detail *50 about alleged abortions performed on three named women. Defendant replied that he had no knowledge or recollection of having treated any of the women. Subsequently, the State called two of the named women and the mother of the deceased third woman and elicited testimony, over the defendant's objection, that defendant had indeed treated these women. No testimony was elicited as to the precise nature of the treatment. The trial judge limited the testimony to impeachment purposes only. Court was adjourned for the day. Upon the convening of Court on the following morning, the judge ordered the testimony stricken and carefully and fully instructed the jurors that they were not to consider such testimony in reaching their verdict. Defendant was convicted of criminal abortion.
On appeal, this Court reversed on the ground that the rebuttal testimony with regard to treatment of the three named women was so prejudicial to the defendant that no instruction could cure the error. The Court stated:
". . . It is apparent that the trial judge, when he reached the conclusion that the evidence was inadmissible, did all that he could do to remove the harmful effect of it. But it had been with the jury over night, and must have found lodgment in their minds. And evidence tending to show that defendant committed other like offenses is calculated to prejudice the defendant in the minds of the jurors, and was not subject to correction. [Citation omitted.] Conviction of a defendant under such circumstances ought to to stand."
To similar effect, see State v. Gavin, 232 N.C. 323, 59 S.E.2d 823; State v. Broom, 222 N.C. 324, 22 S.E.2d 926.
A more recent case reversing a conviction upon similar reasoning is State v. Aycoth, 270 N.C. 270, 154 S.E.2d 59. In Aycoth, during the cross-examination of an officer who was a State's witness, counsel for one of the defendants asked whether the witness knew, of his own knowledge, who owned the automobile in the possession of defendants at the time of their arrest for the crime for which they were on trial. The witness replied that Aycoth had said that the car was his at an earlier time "when we arrested him on another charge in his yard. His wife asked me to go search the car and see if I could find some articles that was [sic] left in the car setting [sic] in the yard when he was indicted for murder." The Court allowed the motion to strike this unresponsive answer and instructed the jury to disregard such statements relating to the earlier arrest and indictment. Aycoth's motion for mistrial was, however, denied.
On appeal, this Court, quoting and relying upon the above-quoted statement from State v. Strickland, supra, held that the prejudicial effect of defendant's statements could not have been erased by the Court's instruction to disregard such testimony.
Both counsel and defendant in a criminal case are always faced with a difficult task in deciding whether the accused should testify and be subjected to cross-examination. Here defendant did not testify. If defendant had a previous criminal record, that fact, in all probability, strongly influenced his decision to forego his right to testify. The effect of the prosecutor's questions was to inform the jury that defendant had previously been convicted of other separate and distinct criminal offenses, including assault. The motion for mistrial was not made until the next day, and after denying the motion, the able trial judge, who had presided with learning and fairness throughout the trial, immediately sought to remove from the minds of the jurors the harmful effect of the incompetent evidence. However, it must be noted that the instructions then given were not specific as to the content of the challenged questions, and by this time the evidence must have found secure lodgment in the minds of the jurors. The questions posed by the prosecutor were loaded with prejudice, and we are of the opinion that under *51 the circumstances of this capital case, the harmful effect of the evidence could not have been removed by the Court's instruction. For this reason defendant is entitled to a new trial.
We do not deem it necessary to consider the remaining assignments of error since in all probability they will not recur at the next trial.
New trial.
COPELAND, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320451/ | 685 S.E.2d 237 (2009)
STATE of West Virginia, Plaintiff Below, Appellee
v.
Richard MALFREGEOT, Defendant Below, Appellant.
No. 34496.
Supreme Court of Appeals of West Virginia.
Submitted September 2, 2009.
Decided October 9, 2009.
*239 Thomas Dyer, Esq., Mary Guy Dyer, Esq., Dyer Law Offices, Clarksburg, for Appellant.
James Armstrong, Esq., Assistant Prosecuting Attorney, Harrison County Prosecuting Attorney's Office, Clarksburg, for Appellee.
PER CURIAM:
This case is before the Court upon an appeal of the November 5, 2007, order of the Circuit Court of Harrison County, which found the appellant, Richard Malfregeot, guilty of the misdemeanor offense of stalking/harassment in violation of W.Va.Code § 61-2-9a(a) (2001).[1] The appellant was sentenced to six months incarceration and fined $500.00; however, within the same order, the circuit court suspended the appellant's sentence and fine and placed him on two years of unsupervised probation. The appellant argues that the circuit court erred in finding that the evidence was sufficient to convict him of the alleged offense and that it further erred in its application of the law to the facts. Based upon the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, we are of the opinion that the circuit court did not commit reversible error and accordingly, affirm the decision below.
*240 I.
FACTS
The appellant, Richard Malfregeot, was employed by the Harrison County Board of Education as a teacher and coach at Bridgeport Middle School (hereinafter, "BMS") during the 2005-2006 academic year. During that year, the appellant met L.L.,[2] a thirteen-year-old female, while traveling on a school bus to a BMS football game. The appellant, seated directly behind L.L. and her best friend C.E., engaged L.L. in conversation. Following the bus trip, the appellant would often see L.L. at BMS and would talk and joke with her.
As the academic year progressed, contact between the appellant and L.L. significantly increased as the appellant began to speak with her at BMS multiple times per day. Many of these encounters occurred at L.L.'s locker. According to the appellant, L.L.'s locker was located within an area he was responsible for monitoring as a part of his duties as a teacher. However, L.L. testified at the appellant's trial that BMS is divided into different sections or "pods" and that her locker was located in pod 8-2, while the appellant's classroom was located in pod 8-1. L.L. stated that in spite of the fact that the appellant's classroom was in a different part of the school, that between classes when students went to their lockers, the appellant would be standing within five feet of her locker waiting to talk with her on a daily basis. In addition, L.L. and other witnesses testified that other teachers did not visit students' lockers on a daily basis. During these encounters, the appellant did not discuss academic or school-related topics with L.L. Instead, the appellant discussed personal matters such as L.L.'s appearance and very often told L.L. how lucky her boyfriend was to have her as a girlfriend. Trial testimony also revealed that the discussion of such personal matters between teachers and students at BMS was an uncommon occurrence.
L.L. further testified that the appellant would walk around the school in the morning to exercise and would often invite her to walk with him. While L.L. repeatedly denied the invitation, the record does not indicate that the appellant extended a similar invitation to any other student. L.L. also stated that the appellant stopped by her lunch table three or four times per week, every week, to talk with her and the other students who were present. In addition, she said that the appellant would on occasion stop by her gym class to visit with her.
The contact between the appellant and L.L. was not limited to verbal communication. The appellant acknowledged that on several occasions he placed his arm around L.L. and had held her hand. L.L. testified that such physical contact made her uncomfortable and that she would shrug her shoulders in an attempt to discourage the appellant from touching her. She further testified that on one occasion the appellant rubbed her shoulders and played with her hair while she sat in a computer lab at the school. She said that she did not tell the appellant that his conduct made her feel uncomfortable because he was a teacher, an authority figure, and that she felt embarrassed and intimidated by the age difference between the two.
Another such encounter between the appellant and L.L. occurred when the appellant summoned L.L. to his classroom to type a one-paragraph letter pertaining to the football team, of which the appellant was a coach. While there is no direct allegation that any inappropriate physical contact occurred during this instance, the appellant had effectively arranged for the two to be alone in his classroom in spite of the fact that L.L. was not enrolled as a student in any class taught by the appellant at BMS. During the appellant's trial, the BMS principal testified that she did not encourage teachers to be alone in the classroom with students.
L.L. further testified that the appellant had displayed photographs of her on a bulletin board at the front of his classroom. The appellant contended that some of the photographs *241 had other students pictured in addition to L.L.; however, the one common characteristic among them was that all of the photographs had L.L. in them. The appellant did not personally take all of the photographs, but he had nonetheless obtained several photographs of L.L., one of which revealed her dressed in pajama-like clothing at a slumber party.
L.L. stated that when she learned of the photographs hanging in the appellant's classroom she became upset. She said that she had not given the appellant permission to display the photographs and she immediately asked him to remove them from his wall. The appellant, however, refused. In fact, L.L. stated that she asked the appellant on approximately five occasions to remove the photographs; each time he refused. The photographs were eventually removed by another student. At trial, the principal of BMS testified that if a teacher is asked to remove photographs from the wall, "then they should come down."
Another encounter between the appellant and L.L. occurred on Sunday, April 2, 2006, when the appellant was at BMS working at a concession stand for a BMS athletic event. M.L., the younger brother of L.L., and several of his friends were in attendance and wished to play football. Due to the fact that they did not have a football, M.L. asked the appellant if he could let them use one of the school's balls. The appellant told M.L. that he would have to first speak with L.L. to be sure it was alright for him to provide the football. The appellant then asked M.L. for L.L.'s personal cell phone number and called her. L.L. did not answer the phone call, and the appellant left a voice message stating, "L.L., D.G. is waiting for you at Bridgeport Middle School." D.G. was another student at BMS, and the appellant was aware that L.L. had a "crush" on him. The appellant later admitted that he knew D.G. was not at BMS on the date and time of his phone call and that he was simply playing a joke on L.L. The appellant could not provide an explanation as to how he would have reacted if L.L. had gone to BMS that day.
L.L. testified that upon listening to the message on her phone left by the appellant, she became very upset and that the appellant's conduct made her feel "freaky," "scared," "weird," and "terrified." At trial, L.L.'s friends and family also testified that following the phone call L.L. was extremely upset and scared. Moreover, on April 3, 2006, the appellant approached L.L. at her school locker and showed her that he had saved her cell phone number on his cell phone. Following the appellant's phone call to L.L., she reported the incident to her parents and the school counselor who, in turn, informed the school principal.
Thereafter, the school principal commenced an investigation that ultimately led to the May 2, 2007, conviction of the appellant in the Magistrate Court of Harrison County, West Virginia, for the misdemeanor offense of stalking/harassment in violation of W.Va.Code § 61-2-9a(a). The appellant subsequently filed an appeal, and a trial de novo was held in the Circuit Court of Harrison County.[3] In an order dated October 3, 2007, the circuit court found the appellant guilty of the offense of stalking/harassment in violation of W.Va.Code § 61-2-9a(a). The circuit court sentenced the appellant to six months incarceration with credit for time served and fined the appellant $500.00. In the same order, the circuit court suspended the appellant's sentence and placed him on unsupervised probation for a period of two years beginning October 3, 2007. This appeal followed.
II.
STANDARD OF REVIEW
The appellant argues that the State failed to introduce evidence sufficient to show that he committed the crime of stalking/harassment in violation of W.Va.Code § 61-2-9a(a). When an appellant raises a sufficiency of the evidence argument, this Court follows the standard of review set forth in Syllabus Point 3 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), which provides that:
*242 A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled.
This Court has also stated that:
The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
Syllabus Point 1, Guthrie.
Furthermore, in Syllabus Point 1, in part, of State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996), the Court held that, "[o]stensible findings of fact, which entail the application of law or constitute legal judgements which transcend ordinary factual determinations, must be reviewed de novo." Moreover, "[t]his Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). Thus, with these standards in mind, the parties' arguments will be considered.
III.
DISCUSSION
The appellant maintains that there was insufficient evidence to support his conviction of stalking/harassment in violation of W.Va. Code § 61-2-9a(a). In particular, he asserts that the circuit court failed to properly apply the law to the facts of this case in concluding that his actions constituted a "following" and "harassment" as provided by the statute. Moreover, the appellant contends that the circuit court failed to view the entirety of the evidence before it and did not consider the context and setting in which the acts occurred. He points out that his alleged misconduct occurred at BMS which enjoys a happy, social, and cordial atmosphere, and he stresses that he had a reputation of being a "jokester/prankster" with students.
The appellant asserts that the allegations against him could have been made by any student at the school and that he treated L.L., in most regards, like any other student. He maintains that he spoke with L.L. about school and non-school related topics in the lunchroom, at her locker, in the hallway, and at school activities. He stated that he would occasionally hug L.L. and that this was a common interaction between students and teachers at BMS. He also argues that the circuit court's finding of fact that he played with L.L.'s hair was clearly erroneous. He admits, however, that: "I flipped her hair, just something like that. It wasn't a stroking or it was just a flip." The appellant maintains that he and L.L. had nothing more than a student-teacher relationship.
With regard to the photographs of L.L. that were hanging on his wall, the appellant contends that it is common for teachers to display photographs of students in their classrooms. He cites the principal's testimony that students often give photographs to teachers with the expectation that they be displayed in their classroom. The appellant further argues that teachers at BMS try to develop a rapport with students and this is *243 accomplished partly through a display of student pictures.
The appellant also argues that a significant portion of the findings of the circuit court are erroneous because they are based upon the fact that the appellant frequently visited L.L.'s locker. He maintains that the circuit court erred in using this fact to satisfy the "following" requirement of the statute. In that regard, the appellant contends that the circuit court ignored the fact that the appellant's classroom was located in close proximity to L.L.'s locker. He maintains that teachers at BMS are responsible for monitoring the hallways between classes and L.L.'s locker was within the appellant's area of responsibility and, thus, such evidence was insufficient to satisfy the requirements of the statute.
Conversely, the State maintains that every element of W.Va.Code § 61-2-9a(a) was proven beyond a reasonable doubt and that the circuit court's decision is fully supported by the evidence. The State contends the appellant actively followed L.L. by physically traveling to locations where she was present and passively followed L.L. by contacting her on her personal cell phone. The State also argues the evidence indicates that the appellant harassed L.L. repeatedly which, according to L.L., caused her to feel "freaky," "scared," "weird," and "terrified." Moreover, the State asserts that the appellant's constant visits to L.L.'s locker, physical contact with her, calling her personal cell phone on a non-school day, and refusal to remove pictures of her posted in his classroom constitutes harassment as defined in W.Va.Code § 61-2-9a(g)(1). The State further declares that the evidence was more than sufficient to conclude that the appellant sought to establish a personal or social relationship with L.L. Accordingly, the State contends that the circuit court's decision is not clearly erroneous.
Pursuant to W.Va.Code § 61-2-9a(a), a person is guilty of stalking/harassment if he or she willfully and repeatedly follows and harasses a person with whom he or she has or seeks to establish a personal relationship.[4] As previously discussed, "[a] criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden." Syllabus Point 3, in part, Guthrie, supra. In Syllabus Point 2 of State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), this Court held:
When a criminal defendant undertakes a sufficiency challenge, all the evidence, direct and circumstantial, must be viewed from the prosecutor's coign of vantage, and the viewer must accept all reasonable inferences from it that are consistent with the verdict. This rule requires the trial court judge to resolve all evidentiary conflicts and credibility questions in the prosecution's favor; moreover, as among competing inferences of which two or more are plausible, the judge must choose the inference that best fits the prosecution's theory of guilt.
Upon review of the record, this Court finds that there was sufficient evidence to conclude that the appellant willfully, actively, and repeatedly followed L.L. as required by W.Va.Code § 61-2-9a(a). As previously discussed, soon after meeting L.L., the appellant began visiting her at her school locker everyday throughout the 2005-2006 academic year. Such visits eventually escalated to several encounters between the two during each school day in spite of the fact that L.L. did not invite the appellant to her locker. L.L. stated that she would find the appellant waiting for her in between classes at her locker. The appellant also initiated contact with L.L. in the lunchroom, in the hallway, in her gym class and other classes, and by calling her personal cell phone. There was no evidence to suggest that L.L. ever invited, enticed, or welcomed these repeated daily visits. The circuit court concluded that the acts of the appellant traveling to locations where the victim was present constituted a "following" for the purposes of W.Va.Code § 61-2-9a(a). When viewing all of the evidence and the entire record, this Court does not believe that the findings of the circuit court are clearly erroneous with regard to whether the appellant's actions amounted to a "following." This Court further fails to find error with the *244 circuit court's finding that the appellant's act of calling L.L. on her personal cell phone and leaving a deceptive message constituted a following. Clearly, the word "follow" under these circumstances necessarily includes conduct engaged in for the purpose of maintaining contact with an individual. Accordingly, the evidence clearly supported the circuit court's finding that the appellant willfully and repeatedly followed L.L.
Now we turn to whether there was sufficient evidence to support the circuit court's finding that the appellant willfully and repeatedly harassed L.L. as set forth in W.Va.Code § 61-2-9a(a). The term "harass" is defined in W.Va.Code § 61-2-9a(g)(1) as "willful conduct directed at a specific person which would cause a reasonable person mental injury or emotional distress." At trial, evidence was introduced that showed that the appellant's actions were directed specifically toward L.L., were willful, repeated, and would have caused a reasonable person mental injury or emotional distress. On several occasions, the appellant, a fifty-year-old teacher, placed his arm around L.L., a thirteen-year-old student. He also held her hand, he rubbed her shoulders, and he flipped her hair. He further displayed photographs of her in his classroom in spite of her repeated requests that they be removed. He then called her personal cell phone under false pretenses and left a message that a reasonable person could interpret as an attempt to lure L.L. to the school on a non-school day. The next day at school he showed L.L. that he had saved her phone number on his phone.
With regard to the previously mentioned physical contact by the appellant toward L.L., it was apparent that L.L. was extremely uncomfortable as she stated she gave the appellant "the cold shoulder" and "shrugged" when he placed his arm around her and rubbed her shoulders. Such behavior by L.L. demonstrated that she was disturbed by the appellant's conduct. Moreover, numerous individuals testified that L.L. was well liked, friendly, a good student, respectful of authority, and polite to her teachers. Likewise, testimony of L.L.'s friends and family showed that L.L. became frightened by the appellant's conduct. Accordingly, the circuit court's finding that such repeated physical and non-physical contact by the appellant toward L.L. constituted harassment as per the requirements of W.Va.Code § 61-2-9a(a) is not clearly erroneous.
Finally, this Court must determine whether the circuit court correctly concluded that sufficient evidence existed indicating that the appellant had or sought a personal or social relationship with L.L., "whether or not the intention is reciprocated," as required by W.Va.Code § 61-2-9a(a). As previously discussed, during the daily conversations with L.L., most of which the appellant initiated, he would often mention her boyfriend and would state how lucky he was to have her as a girlfriend. He also held L.L.'s hand and had placed his arm around L.L. as they walked in the hallway. He even rubbed her shoulders and touched her hair. Moreover, he hung photographs of L.L. on his classroom wall, he called her personal cell phone on a non-school day, and later showed her that he had stored her phone number on his phone. He often invited L.L. to walk with him prior to school and frequently visited her at her locker, in the lunchroom, and at various locations at BMS. The circuit court determined that such actions were commonly associated with displays of affection and strongly support the conclusion that the appellant sought a personal or social relationship with L.L. In consideration of all of the above, the circuit court's finding that the appellant sought a personal or social relationship with L.L. is not clearly erroneous.
In summary, this Court finds that the evidence was more than sufficient to support the circuit court's determination beyond a reasonable doubt that the appellant was guilty of stalking/harassment in violation of W.Va.Code § 61-2-9a(a). When the evidence is considered in the light most favorable to the prosecution, any rational trier of fact could have found that the appellant followed and harassed L.L. and that he sought to establish a personal or social relationship with her as required under the elements of the statute. In other words, "the [circuit] court's account of the evidence is plausible in light of the record viewed in its entirety [.]" *245 Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985). Therefore, the appellant's conviction must be affirmed.
IV.
CONCLUSION
Accordingly, for the reasons stated above, the final order of the Circuit Court of Harrison County entered on November 5, 2007, is affirmed.
Affirmed.
NOTES
[1] W.Va.Code § 61-2-9a(a) provides:
Any person who willfully and repeatedly follows and harasses a person with whom he or she has or in the past has had or with whom he or she seeks to establish a personal or social relationship, whether or not the intention is reciprocated, a member of that person's immediate family, his or her current social companion, his or her professional counselor or attorney, is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.
The West Virginia Legislature amended W.Va. Code § 61-2-9a in 2008, but such amendment has no impact on our decision as the appellant was convicted on November 5, 2007, by order of the Circuit Court of Harrison County.
[2] Our customary practice in cases involving minors is to refer to the children by their initials rather than by their full names. See, e.g., In re Cesar L., 221 W.Va. 249, 252 n. 1, 654 S.E.2d 373, 376 n. 1 (2007).
[3] The appellant requested a bench trial.
[4] See note 1, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320444/ | 215 S.E.2d 557 (1975)
STATE of North Carolina
v.
Joe Lewis WHITE.
No. 24.
Supreme Court of North Carolina.
June 26, 1975.
*558 Rufus L. Edmisten, Atty. Gen., and William F. O'Connell, Asst. Atty. Gen., for the State.
J. Robert Gordon, Laurinburg, for defendant-appellant.
EXUM, Justice.
Defendant must be given a new trial on both indictments because of prejudicial error committed in the trial judge's instructions to the jury.
*559 The principal State's witness was Delores Austin. Her testimony was essentially this: She was defendant's girl friend. Defendant asked her after Bunny White's preliminary hearing to help him kill Watson. She overheard defendant discuss killing Watson "dozens of times," many times with other members of defendant's family. On the night of May 19, 1973, defendant sent her twice to Watson's home to determine whether Watson was there. After her second trip she reported to defendant that Watson was at home. He asked her to help him saying that it "was something he must do and that he couldn't let that old man testify against his brother." After defendant siphoned two cans of gasoline out of his father's truck he carried one can and Delores Austin carried the other to the vicinity of Watson's home. Delores Austin then testified:
"Joe left me about two houses from Mose's house because I couldn't run, but I could see Joe Lewis go up to Mose's house and pour gas on it around the back steps. I saw Joe Lewis get up on a stone and look in the window. All of a sudden I saw an explosion of fire. Joe Lewis was running towards me and when he reached me he said, `I got him.'"
She further testified that on the following Monday she and defendant went to McColl, South Carolina, then to Sanford, North Carolina, and finally to Tabor City where they lived for a year and a half. After they "found out the law was behind" them they were taken by defendant's father to some woods near Laurinburg where they were picked up by defendant's brothers and mother who took Delores Austin to the bus station in Fayetteville. She took a bus to New Haven, Connecticut, where she surrendered to law enforcement officials. Although there is testimony in the record by Detective L. E. Smith of the Laurinburg Police Department that Delores Austin had at one time been charged with the murder of Mose Watson she admitted having pled guilty only to accessory after the fact to murder.
After the State and defendant had rested their cases and before argument to the jury, defendant requested in writing the following jury instruction:
"The witness, Delores Austin, has previously entered a plea of guilty to the crime of accessory after the fact of murder in the first degree. Therefore, Delores Austin, is considered by the law to have an interest in the outcome of this case. Consequently, Ladies and Gentlemen of the Jury, I instruct you to examine every part of her testimony with the greatest care and caution. If, after doing so, you believe her testimony in whole or in part, you should treat what you believe the same as any other believable evidence."
The trial judge's only instruction bearing upon the testimony of an interested witness was:
"The defendant in this case testified in his own behalf. In this connection, I do instruct you that the defendant has an interest in the outcome of this case and that you should, therefore, carefully scrutinize his testimony in the light of such interest; and you may also find that any other witness has an interest in the outcome of this case; and in deciding whether to believe such a witness, you may take his interest into account. If, after doing so, you believe the testimony of the defendant, or the testimony of any other interested witness in whole or in part, then you should treat what you believe the same as any other believable evidence."
This instruction fell far short of complying with defendant's request. Failure to instruct the jury in substance that Delores Austin was an accomplice, therefore an interested witness, and that her testimony should be carefully scrutinized was, in view of defendant's request, and the facts supporting it, prejudicial error. State v. Spicer, 285 N.C. 274, 204 S.E.2d 641 (1974); State v. Bailey, 254 N.C. 380, 119 S.E.2d 165 (1961); State v. Hooker, 243 N.C. 429, 90 S.E.2d 690 (1956).
*560 Defendant's request was, it is true, in part erroneous. The fact that Delores Austin had previously pled guilty to accessory after the fact to murder of Mose Watson would not, ipso facto, make her an accomplice of defendant. "The more generally accepted view is that an accessory after the fact is not an accomplice." State v. Bailey, supra, 254 N.C. at 387, 119 S.E.2d at 171. The trial judge was not, however, relieved of his duty to give a correct accomplice testimony instruction, there being evidence to support it, merely because defendant's request was not altogether correct. State v. Bailey, supra. In Bailey the requested instruction on accomplice testimony was legally insufficient in two respects. First, the request called for a charge that as a matter of law certain witnesses were accomplices when there was evidence from which the jury could find that they were not. Second, the request gave the defendant, in substance, a more favorable instruction than he was entitled to as a matter of law. We held, nevertheless, that the trial judge, "while not required to parrot the instructions `or to become a mere judicial phonograph for recording the exact and identical words of counsel,' must charge the jury in substantial conformity to the prayer;" and we set out what would have been proper instructions. Id. at 386, 119 S.E.2d at 170; accord, State v. Hooker, supra.
"[A]n `accomplice' is a person who knowingly, voluntarily, and with common intent with the principal offender unites with him in the commission of the crime charged, either as a principal, as an aider and abettor, or as an accessory before the fact. The generally accepted test as to whether a witness is an `accomplice' is whether he himself could have been convicted for the offense charged, either as a principal, or as an aider and abettor, or as an accessory before the fact, and if so, such a witness is an accomplice within the rules relating to accomplice testimony." State v. Bailey, supra, 254 N.C. at 387, 119 S.E.2d at 171. It is not necessary for a witness to be charged with the same crime or crimes as the defendant in order to be an accomplice. State v. Spicer, supra.
The testimony of Delores Austin herself, uncontradicted except by defendant, was enough to convict her of the same crimes charged against defendant on the theory that she at least aided and abetted him in the commission of those crimes.
On this evidence defendant's request for an accomplice instruction with regard to the testimony of Delores Austin was, except for the first sentence, a good statement of the law. The trial court should have in substance so charged the jury. There are compelling reasons, demonstrated in legal history and policy, for instructing juries to scrutinize the testimony of accomplices. See State v. Bailey, supra, for a good discussion of them. "A skeptical approach to accomplice testimony is a mark of the fair administration of justice." Id. at 388, 119 S.E.2d at 171.
There is another aspect to the trial judge's instructions to the jury which deserves noting. He charged that the State must prove beyond a reasonable doubt "that the defendant, in burning the house, acted maliciously. Now, that is, intentionally, wilfully, or wantonly, without lawful excuse or justification or with a fraudulent purpose." (Emphasis supplied.) Thereafter he charged that the "State must prove that it was done maliciously or with a fraudulent purpose. I instruct you that the burning of a dwelling by the defendant. . . for the purpose of putting Mose Watson in fear or terror to prevent him from testifying . . . would constitute a fraudulent purpose on his part." (Emphasis supplied.) In his final mandate to the jury in the arson case the trial judge charged that the State must prove, among other things, that "the defendant, in burning the house, acted maliciously, with a fraudulent purpose . . . ." (Emphasis supplied.)
In these instructions the trial judge seems to have confused the common law crime of arson, for which defendant was *561 indicted and which before the enactment of Chapter 1201, 1973 Session Laws, was a capital crime, with the general felony defined by G.S. § 14-65. Common law arson is the wilful and malicious burning of the dwelling house of another person. State v. Arnold, 285 N.C. 751, 208 S.E.2d 646 (1974); State v. Porter, 90 N.C. 719 (1884); 2 Wharton's Criminal Law and Procedure § 388 (1957); Curtis, The Law of Arson § 1 (1936). The statutory felony defined in G.S. § 14-65 is committed when the occupant of a building used as, or the owner of a building designed or intended as, a dwelling house wantonly and wilfully "or for a fraudulent purpose" burns or causes it to be burned. The trial judge equated burning "for a fraudulent purpose" with a "wilful and malicious" burning. In effect, he charged the jury that they could convict the defendant if it found that he burned Mose Watson's dwelling either wilfully and maliciously or with a fraudulent purpose.
The mental state denoted by the term "wilful and malicious," is not the same as that denoted by the term "fraudulent purpose." For a burning to be "wilful and malicious" in the law of arson it must simply be done "voluntarily and without excuse or justification and without any bona fide claim of right. An intent or animus against either the property itself or its owner is not an element of the offense" of common law arson. 2 Wharton's Criminal Law and Procedure § 390; accord, Curtis, The Law of Arson §§ 68-69; see also North Carolina Pattern Jury Instructions, Criminal, 215.10. Burning "for a fraudulent purpose," on the other hand, describes a mental state having to do with the desire for illegal pecuniary gain usually at the expense of the property's insurer. The gravamen of the offense of common law arson is the danger that results to persons who are or might be in the dwelling, whereas the main import of G.S. § 14-65 is protection of the property itself. While burning the dwelling of Mose Watson for the purpose of frightening Watson and keeping him from testifying for the State would clearly be a wilful and malicious burning, we doubt that it would be a burning "for a fraudulent purpose."
We do not decide whether the precise use of the term made here by the able trial judge constituted legal error. It might be argued that he defined "fraudulent purpose" to be in this case burning of the dwelling for the purpose of intimidating its occupant, a State's witness. This act would also be a wilful and malicious burning. Since, the argument goes, two or more things equal to the same thing are equal to each other the charge is saved from error. Be that as it may, and without considering all the factual circumstances which may be embraced by the term "fraudulent purpose," we believe that the concept has no place in a common law arson case. The better practice is to maintain a clear distinction between this ancient crime and burning for a fraudulent purpose as defined by G.S. § 14-65.
Because the questions will probably arise at defendant's second trial we discuss assignments of error relating to the introduction of two confessions of the defendant, made at different times. According to the State's evidence the first one was made on May 4, 1974, in the presence of Detective L. E. Smith and S. B. I. agents William Dowdy and Hugh Currin, Jr., in response to interrogation while they were transporting defendant by car from Patterson, New Jersey, where he had been extradited to North Carolina. This interrogation and confession occurred in the automobile shortly after 12:00 Noon before the car left Patterson. Evidence for the State on the question of the admissibility of this confession was that before making it defendant was fully advised of both his right to have counsel, either privately employed or court appointed, during questioning and his right to remain silent in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that no promises or threats were made to defendant. Defendant replied that he understood his rights and "would proceed without an attorney." *562 Defendant, on voir dire, admitted being given the Miranda warnings and that no coercion was used, but claimed that he asked for a lawyer. The trial court found facts in accordance with the State's evidence, found that defendant waived his right to counsel during this interrogation, that the confession was voluntary and concluded that it was admissible. There was ample evidence to support these findings, including the implied finding that defendant also waived his right to remain silent. Consequently, there was no error in admitting this confession.
The State also offered evidence that Delores Austin who had been brought to the Laurinburg Police Station on April 29, 1974, had on that date, after waiving her constitutional rights, made a statement essentially in accordance with her testimony at the trial. On May 4, 1974, while defendant was in custody at the Laurinburg Police Station he was again given full Miranda warnings after which he and Delores Austin were placed together in the same room. On a second voir dire hearing Detective Smith testified that Delores Austin repeated her statement in defendant's presence. He then asked the defendant:
"[I]f he heard and understood the statement that Delores had made and he said that he did. I asked him if he disagreed with anythingany part of the statement and he said that he did not, that she had told the truth and that this was the way it happened. The whole interview with Delores and the defendant took less than half an hour."
After finding that this second statement of defendant was made "after he had been fully advised of his rights . . . and that it was freely and understandingly and voluntarily . . . made, without compulsion or duress or promise of leniency and is admissible" the trial court permitted Detective Smith to testify before the jury that upon being confronted with the statement of Delores Austin defendant stated he did not disagree with it and what she said was true.
On this record this was prejudicial error.
With regard to defendant's second incriminating statement amounting, in effect, to another confession, there was neither evidence nor finding by the trial judge that defendant waived his right to remain silent or his right to have counsel present during this particular in-custody interrogation. "Waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained." Miranda v. Arizona, supra; accord, State v. Turner, 281 N.C. 118, 187 S.E.2d 750 (1972); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971). This second interrogation, moreover, was not part of the same transaction which produced defendant's first confession. It occurred a number of hours later (at least the number required to drive from Patterson, New Jersey, to Laurinburg) and was at a different place and under different circumstances. The State was not, therefore, entitled to rely on defendant's earlier waiver which had occurred in Patterson, New Jersey. His confession after waiver at that time "exhausted the procedure" to which the waiver applied. State v. Wright, 274 N.C. 84, 94, 161 S.E.2d 581, 589 (1968).
The prejudice to defendant from erroneously admitting his second confession into evidence notwithstanding that an earlier confession was properly admitted is shown by what transpired at the trial after the jury had begun its deliberations. The jury returned into court to inquire whether it could hear again what defendant said to officers in New Jersey, Delores Austin's statement, and defendant's answers to Detective Smith's inquiries as to whether he agreed with her statement. During this episode one juror said, "Did he agree with her statement or did he disagree. That's the hang-up. Did he disagree with her? Did he say that he didn't do it at the time or did he say that she was telling the truth?" The trial court then summarized again for the jury his recollection of that *563 portion of the State's evidence which was that defendant agreed Delores Austin was telling the truth. Defendant's statement made on the trip from New Jersey was not at this time reviewed.
For errors committed defendant is given a
New trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320513/ | 215 S.E.2d 814 (1975)
26 N.C. App. 210
CITY OF DURHAM
v.
LYCKAN DEVELOPMENT CORPORATION et al.
No. 7514SC215.
Court of Appeals of North Carolina.
June 18, 1975.
*818 Rufus C. Boutwell, Jr., Durham, for plaintiff-appellant.
Powe, Porter, Alphin & Whichard, P. A. by Edward L. Embree, III, Durham, for defendants-appellees.
BRITT, Judge.
PLAINTIFF'S APPEAL
Plaintiff contends Judge Clark erred in allowing defendant to make eight separate motions simultaneously, without any reference to any rule of civil procedure, to receive defendant's written argument on those motions, and then restrict the hearing to a single motion. We find no merit in the contention.
This contention pertains to defendant's "Motion in the Cause" filed 23 October 1973. In its motion, defendant asked that the complaint be dismissed for the reasons that (1) the court lacked jurisdiction over the subject matter of the action, (2) plaintiff was following unauthorized and unconstitutional procedures, and (3) there was insufficient service of process. Defendant also asked for injunctive relief. In the alternative, defendant asked that the return on the summons be amended to show the correct date of service on defendant ". . if such can be determined". It further asked in the alternative that if the action was not dismissed that defendant be allowed to file an amendment to its answer and allege a counterclaim. Plaintiff and defendant each proceeded to file a memorandum of law and a brief in support of their respective motions and in defense of their respective positions on the other's motions.
The gist of plaintiff's argument on this contention is that defendant did not cite the number of any rule under which it was moving, and plaintiff was greatly inconvenienced in having to prepare for a hearing on all facets of defendant's motion and the court allowed defendant to proceed on only one of them, namely, the claim of insufficiency of service of process.
Rule 6 of the General Rules of Practice for the Superior and District Courts provides that all motions, whether written or oral, shall state the rule number or numbers under which the movant is proceeding and makes reference parenthetically to Rule 7 of the Rules of Civil Procedure. G.S. § 1A-1, Rule 7(b)(1) provides that motions, unless made during a hearing or trial or at a session at which a cause is on the calendar for that session, shall be made in writing, shall state the grounds therefor, and shall set forth the relief or order sought. While defendant failed to comply with rule 6 of the trial court rules, it fully complied with G.S. § 1A-1, Rule 7(b)(1). Assuming, arguendo, that defendant erred in not stating the rule number, we perceive no prejudice to plaintiff. We are not impressed with plaintiff's argument that it suffered inconvenience in having to prepare to defend on all aspects of defendant's motion.
*819 Plaintiff contends the court erred in concluding that defendant was not properly served with process on 8 August 1972. The essence of plaintiff's argument on this contention is that the evidence did not support the conclusion. We note that plaintiff did not except to any finding of fact, therefore, this court will assume that the facts found are correct and are supported by the evidence, and the appeal will be determined in accordance with those findings. 1 Strong, N.C. Index 2d, Appeal and Error, § 28, at 160. The question then arises, do the findings of fact support the conclusion of law that defendant was not properly served with process on 8 August 1972? We answer in the affirmative.
Plaintiff argues that process was served in compliance with G.S. § 1A-1, Rule 4(j)(6)a which provides that service may be had "By delivering a copy of the summons and of the complaint to an officer, director, or managing agent of the corporation or by leaving copies thereof in the office of such officer, director, or managing agent with the person who is apparently in charge of the office". The return states that process was served on defendant's president but the court found as fact that defendant's president was not in Durham County at 5:45 p. m. on 8 August 1972. This brings us to consider whether a copy of the summons and complaint was left in the office of an officer, director, or managing agent of defendant corporation with the person who was apparently in charge of the office.
The court found as fact that on 8 August 1972 defendant corporation was using the residence of its president (1008 North Guthrie Avenue, Durham) as its temporary place of business, and that on the date and at the hour above stated, the deputy sheriff delivered process to a male person, whose identity is unknown, at said address. In its supplementary order (entered 15 January 1974) the court further found that the man at the residence answered the doorbell when the deputy rang it, was white, approximately 55 years of age, represented himself to be the president of defendant corporation, and was the only person the deputy saw on the premises. The court further found that 5:45 p. m. was after normal business hours for the conducting of business at said address. Even considering the additional facts set forth in the supplementary order, we think the facts found by the court were sufficient to support its conclusion of law that process was not properly served on defendant. While the evidence might have warranted different findings of fact, that was a prerogative of the trial judge.
Plaintiff contends the court erred in concluding that defendant, by filing its petition for disbursement of funds on 23 August 1972, did not waive or was not estopped from contesting the date of service of process. We hold that this conclusion of law is fully supported by the findings of fact.
Plaintiff contends the court erred in ruling that defendant's answer, filed on 20 August 1973, was filed in apt time. We hold that the court's ruling is fully supported by its conclusions of law, which conclusions are supported by the findings of fact.
We have not overlooked defendant's contention that in the stipulation with respect to the record on appeal counsel for the parties stipulated that "[a]ll pleadings herein were properly and timely filed . . ." Defendant argues that the stipulation renders moot the crucial question with respect to its answer being filed within the time allowed by statute. In view of our holding hereinbefore set out, we do not reach defendant's contention involving the stipulation.
Finally, by its assignment of error No. 9, plaintiff contends the court at trial erred in refusing to admit into evidence a map prepared by the U. S. Corps of Engineers in 1965 depicting certain floodway zones for the land in question and surrounding areas, when counsel, in the order on final pretrial conference, had stipulated to the admissibility of the map. This assignment has merit.
*820 The "ORDER ON FINAL PRE-TRIAL CONFERENCE" entered by Judge Hall on 16 December 1974 contains the following provision (paragraph 6): "It is stipulated and agreed that each of the exhibits identified by the Plaintiff is genuine, and, if relevant and material, may be received in evidence without further identification or proof." The map above referred to is one of the exhibits covered by the stipulation.
Pretrial stipulations duly entered into by the parties are binding upon them. Quinn v. Thigpen, 266 N.C. 720, 147 S.E.2d 191 (1966). We then consider whether the map which plaintiff sought to introduce was relevant and material. "Strictly speaking, evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case. . . ." 1 Stansbury, N.C. Evidence, § 77, at 234 (Brandis rev. 1973).
We think the map contained information which was relevant and material to the issue being tried, namely, the damages sustained by defendant by the taking of its property by plaintiff. Defendant offered evidence tending to show that its land was capable of high type commercial development. Plaintiff, on the other hand, offered evidence tending to show that a creek ran through defendant's property and that the land taken was in an area that was subject to flooding. Certainly, the map contained information bearing on the question of whether the area was subject to flooding. Absent the stipulation, the laying of considerable foundation would have been necessary to render the map admissible in evidence, but the stipulation removed all grounds of objection by defendant except that of relevancy and materiality.
We also think the court's error in excluding the map was sufficiently prejudicial to entitle plaintiff to a new trial on the issue of amount of damages.
DEFENDANT'S APPEAL
Defendant's appeal raises only one question: Whether the court erred in entering its 15 January 1974 "SUPPLEMENTARY ORDER" amending its 10 January 1974 order. In view of our holding set forth above that even considering the additional findings set forth in the supplementary order, the conclusions of law were supported by the findings of fact, we find it unnecessary to pass upon the question raised by defendant's appeal.
* * * * * *
For the reasons stated, the orders entered by Judge Clark from which plaintiff and defendant appealed are affirmed; the judgment entered by Judge Hall from which plaintiff appealed is reversed and a new trial is ordered on the issue of amount of damages.
New trial.
PARKER and VAUGHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320502/ | 215 S.E.2d 134 (1975)
STATE of North Carolina
v.
Teddy Lee CARRIKER.
No. 103.
Supreme Court of North Carolina.
June 6, 1975.
*136 Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.
Clarence C. Boyan, High Point, for defendant-appellant.
MOORE, Justice.
When court opened on the day of the trial of this case, the jurors for the term were called and sworn and thereafter remained in the courtroom. The district attorney then called the first case on the calendar, State v. Bell. That defendant entered a plea of guilty of possession of marijuana. Before passing sentence in that case, the presiding judge made certain remarks as hereinafter partially summarized. Shortly after judgment was imposed in the Bell case, the district attorney called defendant's case. Before pleading to the indictment charging him with distribution of marijuana, defendant moved for a continuance for the term due to the remarks made by the judge before sentencing Bell. Prior to ruling on this motion, defendant's attorney, Mr. Lea, accompanied by the court reporter, conferred with the presiding judge in chambers. There the following exchange took place:
"MR. LEA: We make a Motion to continue on the basis of certain remarks made by the Presiding Judge in the sentencing of Roger Paul Bell, these remarks which I think
"THE COURT: What remarks? I don't care about your opinion.
"MR. LEA: The first one was that marijuana was a habit-forming drug. The second remark
"THE COURT: I didn't say that.
"MR. LEA: That is what I understood you to say.
"THE COURT: I said when they got hooked on marijuana that my experience was that anything went, and I have tried them for robbery; they get desperate for money and anything goes, robbery or anything else.
"MR. LEA: I think that is close to what you said; and further, as the defendant in a previous case left the Courtroom, the Presiding Judge looked at the Jury and stated substantially as follows: That they all get religion when they come in the Courtroom. Is this a fair statement, Your Honor?
"THE COURT: I don't know that I said they all do. I said a lot of them get religion when they come in the Courtroom.
"MR. LEA: Is it necessary for me to give the reasons for this?
"THE COURT: I don't care anything about the reasons. You can take it up if you want to and tell the Court up there why you took it up. All I said in front of the Jury is what you get from the papers everyday, on the radio or on the television anytime you want to turn it on, and those people sitting on the Jury are grown men and women. The Motion is DENIED."
Defendant's attorney contends that the comments made by the presiding judge before the jury panel were actually much more extensive and prejudicial than those preserved for the record and set out above.
*137 By his first assignment of error defendant alleges that the trial court erred in denying his motion for a continuance due to the fact that the remarks made by the court before the jury panel prejudiced his right to a fair trial. Neither the State nor defendant has cited a North Carolina case nor has our research discovered one which deals directly with the question here involved. The general rule is stated in Annot., 89 A.L.R. 2d 197, 234, as follows:
". . . [T]he rule appears to be that the practice of addressing the prospective jurors does not of itself constitute reversible error, although suggestions or statements which are likely to influence the decision of the jurors when called upon later to sit in a given case may constitute error and should be avoided, as should misstatements of the law or remarks disparaging legitimate defenses that may be made in cases to be tried, as well as references made directly or by innuendo to particular cases which might come before the jurors."
See 75 Am.Jur.2d, Trial §§ 91, 92, pp. 194-95 (1974).
Many decisions have warned that remarks made before prospective jurors must be engaged in with the greatest of care and that the judge must be careful not to make any statement or suggestion likely to influence the decision of the jurors when called upon later to sit in a given case. In Gross v. Commonwealth, 256 S.W.2d 366 (Ky. 1953), Commonwealth insisted that the remarks of the presiding judge made on the first day of the term to the prospective jurors could not have prejudiced them as this case was not tried until the 17th day thereof. The trial judge there had stated from the bench to the members of the prospective jury, in substance, that they would never convict anyone for violating the liquor laws if they accepted the testimony of defendants charged with such offenses. This statement was not directed to the defendants in that case or any other particular defendant charged with such violations. Holding that these remarks were error, the Kentucky Court of Appeals stated:
"We do not believe the poison had evaporated from the minds of the jurors because of the fact seventeen days elapsed between the time these unfortunate words were spoken to the jury and the time of the trial. A trial judge occupies a high position, and the jury should, and usually does, have great respect for him and is easily influenced by the slightest suggestion coming from him. Burnam v. Com., 283 Ky. 361, 141 S.W.2d 282, and authorities therein cited. Practically the same statement made here was made by the trial judge in Shaw v. Com., 206 Ky. 781, 268 S.W. 550, and it was there held to be reversible error."
Accord, Mele v. Becker, 1 Mich.App. 172, 134 N.W.2d 846 (1965).
G.S. § 1-180, which requires a judge to explain the law but to give no opinion on the facts, refers by its terms to the charge of the judge to the jury. Nonetheless, it has long been construed to forbid the judge to convey to the trial jury in any way at any stage of the trial his opinion on the facts involved in the case. State v. Holden, 280 N.C. 426, 185 S.E.2d 889 (1972); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410 (1971); State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1966); State v. Williamson, 250 N.C. 204, 108 S.E.2d 443 (1959); State v. Smith, 240 N.C. 99, 81 S.E.2d 263 (1954); State v. Cook, 162 N.C. 586, 77 S.E. 759 (1913). There is language in our cases to the effect that G.S. § 1-180 is not applicable until the case is called to trial. State v. Lippard, 223 N.C. 167, 25 S.E.2d 594 (1943); State v. Jacobs, 106 N.C. 695, 10 S.E. 1031 (1890).
In State v. Canipe, 240 N.C. 60, 81 S.E.2d 173 (1954), we held that G.S. § 1-180 was violated when the trial judge inadvertently communicated his opinion of the facts in the case by his remarks or questions to prospective jurors during the selection of the jury. And as we said in the oft-quoted *138 case of Withers v. Lane, 144 N.C. 184, 56 S.E. 855 (1907):
". . . The judge should be the embodiment of even and exact justice. He should at all times be on the alert, lest, in an unguarded moment, something be incautiously said or done to shake the wavering balance, which, as a minister of justice, he is supposed, figuratively speaking, to hold in his hands. Every suitor is entitled by the law to have his cause considered with the `cold neutrality of the impartial judge,' and the equally unbiased mind of a properly instructed jury. This right can neither be denied nor abridged." (Emphasis added.)
Accord, State v. Greene, 285 N.C. 482, 489, 206 S.E.2d 229, 233 (1974).
In addition to G.S. § 1-180, and apparently to supplement it, the General Assembly enacted G.S. § 1-180.1 to further prevent the trial judge from invading the province of the jury. This statute in part provides:
"Judge not to comment on verdict.In criminal actions the presiding judge shall make no comment in open court in the presence or hearing of all, or any member or members, of the panel of jurors drawn or summoned for jury duty at any session of court, upon any verdict rendered at such session of court, and if any presiding judge shall make any comment as herein prohibited, or shall praise or criticize any jury on account of its verdict, whether such comment, praise or criticism be made inadvertently or intentionally, such praise, criticism or comment by the judge shall constitute valid grounds as a matter of right, for the continuance for the session of any action remaining to be tried during that week at such session of court, upon motion of a defendant or upon motion of the State. . . ." (Emphasis added.)
This statute by its express terms applies to comments made by the presiding judge concerning verdicts rendered during the session. However, we fail to see how comments made by the judge in the presence of the jury panel concerning a verdict of guilty could be more prejudicial than the same remarks made concerning a plea of guilty. Such comments violate the spirit if not the letter of G.S. § 1-180.1.
The central question is whether or not the language complained of might have so affected the prospective jury panel that it was likely defendant would be deprived of a fair and impartial trial. In the present case the prospective jurors were put on notice by the trial judge that marijuana was a habit-forming drug; that once the habit was formed "anything goes"; that it led to robbery or anything else to get money; and that all or many of those charged with such offenses "get religion" when they come into court. Surely the prospective jurors could logically infer from these remarks that defendants charged with similar offenses should be convicted, and that when apprehended and brought into court many such defendants would attempt to deceive the court by "getting religion." The probable effect or influence upon the jury, and not the motive of the judge, determines whether the party whose right to a fair trial has been impaired is entitled to a new trial. State v. Canipe, supra; State v. Smith, supra. That the remarks were an inadvertence on the part of the able and experienced judge renders the comments nonetheless harmful. Burkey v. Kornegay, 261 N.C. 513, 135 S.E.2d 204 (1964); Miller v. R. R., 240 N.C. 617, 83 S.E.2d 533 (1954).
G.S. § 1-180.1 also expressly provides that "[t]he provisions of this section shall not be applicable upon the hearing of motions for a new trial, motions to set aside the verdict of a jury, or a motion made in arrest of judgment." Hence, in order to obtain the benefit of the statute a defendant must, as defendant did in this case, move for a continuance.
The comments made by the trial judge concerning cases involving marijuana, coming shortly before defendant's case was called, entitled defendant to a continuance, *139 and it was error for the trial judge to overrule defendant's motion.
We see no merit in defendant's other assignment of error, but for the reasons stated defendant is entitled to a new trial.
The case is remanded to the North Carolina Court of Appeals with direction that it remand it to the Superior Court of Davidson County for a new trial in accordance with the principles herein stated.
New trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320591/ | 134 Ga. App. 509 (1975)
215 S.E.2d 274
ROBERTSON et al.
v.
LAUGHLIN INSULATION COMPANY, INC.
50214.
Court of Appeals of Georgia.
Argued February 3, 1975.
Decided April 8, 1975.
Arnall, Golden & Gregory, William R. Harp, for appellants.
Davis, Matthews & Quigley, Baxter L. Davis, for appellee.
MARSHALL, Judge.
The sole issue in this appeal is whether or not the trial court erred in concluding that privity existed between the appellant property owner and the appellee subcontractor of the owner's general contractor.
As stated in the appellant's brief, this case presents the classic story wherein a property owner enters into a contract with a general contractor to make certain improvements on the owner's land (apartment buildings); the general contractor enters into a contract with the *510 subcontractor to furnish a portion of the labor and materials (insulation) required under the general contract; the general contractor does not pay the subcontractor and the subcontractor sues both the general contractor and the owner. That is the scenario in this case. It is admitted by appellant that the subcontractor contractor has proved that it has a valid claim of lien on its property, that it is entitled to judgment against the general contractor for the full amount of its claim, and that the labor and materials furnished improved and benefited its property. The trial court so found and concluded that both the general contractor and owner were jointly and severally liable to the subcontractor. The owner appeals, contending that there was no privity of contract between the owner and the subcontractor. Held:
The subcontractor relies upon Powell v. Ferguson Tile &c. Co., 125 Ga. App. 683 (3) (188 SE2d 901); Vulcan Materials Co. v. D. H. Overmyer Warehouse Co., 115 Ga. App. 792 (156 SE2d 213) and Colt Co. v. Hiland, 35 Ga. App. 550 (134 S.E. 142), for the proposition that privity exists between the owner and a subcontractor of the owner's general contractor so that the subcontractor may recover a personal judgment in contract against the owner.
The owner relies on D. H. Overmyer Warehouse Co. v. W. C. Caye & Co., 116 Ga. App. 128 (157 SE2d 68); Drawdy v. McVeigh, 110 Ga. App. 329 (138 SE2d 477); and Gignilliat v. West Lumber Co., 80 Ga. App. 652 (2) (56 SE2d 841) for the proposition that since the owner is not a party to the contract between the sub and general contractor, there is no privity between the owner and the subcontractors of the owner's general contractor so the subcontractor cannot recover a personal judgment in contract against the owner.
The latter position is correct. "`Where a materialman seeks to foreclose his lien against real estate which has been improved with material furnished by him to a contractor for such purpose, he can not recover a general verdict and judgment against the owner of the land for the value of the material furnished,' and `a materialman can not recover a general judgment against the owner of the land for the material furnished, for the simple reason that *511 he is no party to the contract for the purchase of the material.' [Cits.]" Gignilliat v. West Lumber Co., 80 Ga. App. 652, 658, supra. "The acceptance of work by an owner done under a contract between two parties, neither of which is his agent, does not amount to an adoption of that contract by the owner nor an assumption of liability for the value of the work done. Holcombe v. Parker, 99 Ga. App. 616, 619 (109 SE2d 348)." Drawdy v. McVeigh, 110 Ga. App. 329, 330, supra.
In the present case, the owner was not a named party to the contract between the subcontractor and general contractor, did not sign the contract, nor become obligated in any way thereunder. The subcontractor sent invoices only to the general contractor, and was paid in part by check drawn on the general contractor's bank account.
There were certain provisions in the subcontract in the present case which injected the name of owner. These provisions were: that the subcontractor was not to be paid until acceptance of his work by the contractor and owner; that the subcontractor would hold harmless the contractor and owner; that subcontractor would obtain approval from the contractor and architect or owner of estimated costs of each part of the work done; and that, in the event subcontractor ceased work, he would not be paid until full payment had been made by owner to contractor. These provisions did not have the effect of making the contractor the agent of the owner. See e.g. Sasser & Co. v. Griffin, 133 Ga. App. 83, 85 (210 SE2d 34); Holcombe v. Parker, 99 Ga. App. 616 (109 SE2d 348); Stein Steele &c. v. Goode Const. Com, 83 Ga. App. 821 (65 SE2d 183); McGinnis v. Milhollin, 64 Ga. App. 462 (13 SE2d 591) wherein the owners were not liable even though they had the same or greater control over their contractors or the construction project.
The circumstances that created a principal-agent relationship between the owners and the general contractors in the cases of Christian v. Bremer, 199 Ga. 285 (3), (4) (34 SE2d 40); Robinson v. Reese, 175 Ga. 574 (165 S.E. 744), and apparently in Powell v. Ferguson Tile &c. Co., 125 Ga. App. 683, supra; and Colt Co. v. Hiland, 35 Ga. App. 550, supra, are not present in this case. There was no evidence shown by owner in this case that its *512 general contractor was anything other than an independent contractor.
Vulcan Materials Co. v. D. H. Overmyer Warehouse Co., 115 Ga. App. 792, supra, is distinguishable, because it is apparent that the contract in that case was made directly between the subcontractor and the owner.
Judgment reversed. Bell, C. J., and Webb, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320896/ | 685 S.E.2d 766 (2009)
MERRITT
v.
The STATE.
No. A09A1803.
Court of Appeals of Georgia.
October 16, 2009.
*768 Carl P. Greenberg, for appellant.
Paul L. Howard Jr., District Attorney, David K. Getachew-Smith, Assistant District Attorney, for appellee.
MIKELL, Judge.
Pursuant to the grant of an out-of-time appeal, Michael Merritt challenges his 2004 convictions of armed robbery, OCGA § 16-8-41(a); hijacking a motor vehicle, OCGA § 16-5-44.1; possession of a firearm during the commission of a felony, OCGA § 16-11-106; aggravated assault with a deadly weapon, OCGA § 16-5-21(a)(2); false imprisonment, OCGA § 16-5-41; and burglary, OCGA § 16-7-1. Merritt argues that the evidence is insufficient to support his convictions and that the trial court erred in denying his Batson challenge. Discerning no error, we affirm.
1. When determining a challenge to the sufficiency of the evidence, "we must view the evidence in the light most favorable to the verdict[,] and the appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility."[1] "Conflicts in the testimony of the witnesses, including the [s]tate's witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate's case, the jury's verdict will be upheld."[2]
Construed in favor of the verdict, the evidence adduced at trial shows that Eric Haney was accosted by three men at his apartment complex on December 17, 2001, at approximately 6:00 p.m. One of the men was carrying what appeared to be an assault weapon. The assailants demanded his money, jewelry, and jacket, all of which Haney surrendered. Haney, who had just parked his Tahoe, also threw down his car keys. One of the men took the keys and went to the vehicle, and the other two men ordered Haney to enter his apartment. Once inside, the men placed Haney on the ground, held the weapon to his head, and demanded money and drugs. Haney stated that he had no drugs. He offered them $800 in quarters, which the assailants did not want. Instead, they took clothing and electronic equipment. The assailant who took the car keys returned and asked Haney how to operate the vehicle's alarm system. Finally, the assailants fled; Haney watched as they threw his belongings into the Tahoe and took off. Haney then called the police.
The police located the Tahoe three days later in the possession of Darnell Robinson a/k/a Darryl Robertson.[3] When Haney retrieved the vehicle the next day from the impound lot, he found a disposable camera inside. Haney had the film developed, and it contained photographs of the three men who robbed him. The photographs depicted the assailants, including Merritt, inside the Tahoe, wearing Haney's jewelry and clothing. In his photograph, Merritt is sitting in the driver's seat wearing Haney's black leather jacket. Haney described Merritt as the "most aggressive one . . . who was talking about he was going to shoot me, `I'm going to shoot this mother-f____er' or something to those words."
Haney gave the photographs to Detective Perry Lawrence of the City of Atlanta Police Department. On January 2, 2002, Lawrence took Haney's statement. Haney identified Merritt as one of the men who robbed him. Lawrence testified that Haney never wavered in his identification of Merritt.
Merritt argues that the evidence recounted above does not support his conviction because Haney's in-court identification of him was less certain than his out-of-court *769 identification. Haney testified at trial, which commenced on February 23, 2004, that when he first saw the photographs in December 2001, he was certain that Merritt was one of the robbers. Haney also testified that he was no longer "100 percent" certain of the identification because Merritt had been wearing a hood "tight on his face." Merritt thus contends, in essence, that the victim's in-court identification of him was not credible, warranting reversal of his conviction. "This argument fails because this Court does not weigh the evidence or judge the credibility of witnesses; both matters are exclusively for the jury."[4] In any event, Haney identified Merritt's co-defendants from their photographs as the other two perpetrators in the crimes, authorizing the jury to infer that Merritt aided in the commission of the crime.
A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Proof that the defendant shares a common criminal intent with the actual perpetrator may be inferred from conduct before, during, and after the commission of the crime. Evidence of the defendant's conduct before, during, and after the commission of the criminal act will authorize the defendant's conviction for commission of the criminal act if a jury could infer from the conduct that the defendant intentionally encouraged the commission of the criminal act.[5]
Finally, Merritt argues that his conviction cannot be sustained because none of the stolen property was recovered from him. Again, this argument fails. Haney identified a leather jacket stolen from him from the photograph of Merritt that was introduced into evidence without objection.[6] Accordingly, we find the direct and circumstantial evidence sufficient for any rational trier of fact to find Merritt guilty beyond a reasonable doubt of the charged offenses, at least as a party to those crimes.[7]
2. Merritt also argues that the trial court erred in denying his Batson[8] motion.
The evaluation of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent.[9]
In the case at bar, Merritt made a Batson motion after the prosecutor used four of the state's six allotted peremptory strikes to excuse African-American jurors. The prosecutor did not utilize his last two strikes. The panel consisted of thirty whites, fifteen African-Americans, and three Asians. The jury was composed of eight whites, two African-Americans, and two Asians. Although the trial court did not find that the defense made a prima facie showing of racial discrimination, the court nevertheless required the prosecutor to explain its strikes. Thus, the threshold issue of whether Merritt established a prima facie case of discrimination is moot because the prosecutor offered purportedly race-neutral reasons for its strikes and the trial court ruled on the ultimate issue of purposeful discrimination.[10]
Although Merritt challenged four of the state's peremptory strikes at trial, he complains of only two on appeal, the strikes of jurors 6 and 29; thus, he has abandoned *770 any claim of error regarding the trial court's Batson ruling as to the remaining jurors.[11] The prosecutor explained that he struck juror 6, an African-American woman, because she had a son who had been prosecuted for drug possession in Fulton County four or five years earlier; she also expressed reluctance to judge people. "The prior conviction of a family member is a sufficiently race-neutral reason to exercise a peremptory strike."[12]
The prosecutor explained that it struck juror 29, another African-American woman, because she had a cousin who had been arrested on drug-related charges in Fulton County three years prior to the trial at hand. Merritt points out, however, that juror 29 had stated that she did not follow her cousin's case and did not know what happened to him. Merritt also argues that the prosecutor did not strike a similarly situated white juror, no. 13. This juror, a white man, had been prosecuted for DUI in an unknown jurisdiction, but he expressed that he had been treated fairly by the police. This juror also reported that a motorcycle had been stolen from him once and that he was satisfied with the ensuing police investigation. Juror 29, who reported that her grandmother had been the victim of a burglary ten years earlier, did not respond positively concerning police treatment, although this juror stated that the crime would not affect her partiality.
The trial court concluded that the African-American jurors who were struck were not similarly situated to the white juror. The court also ruled that Merritt had failed to carry his burden of proving that the prosecutor's proffered explanations for the strikes were pretexts for discrimination. The trial court was influenced by the fact that the prosecutor had only used four of his six strikes and that he had accepted two African-American jurors. "Whether discriminatory intent exists is generally a matter for the trial court, as such finding rests largely upon assessment of the prosecutor's state of mind and credibility."[13] The trial court's findings in this regard "are entitled to great deference and will be affirmed unless clearly erroneous."[14] Given the deferential appellate standard, we cannot say that the trial court clearly erred in ruling that Merritt failed to carry the burden of proving that the prosecutor acted with discriminatory intent in exercising his peremptory challenges.[15]
Judgment affirmed.
JOHNSON, P.J., and ELLINGTON, J., concur.
NOTES
[1] (Citation and punctuation omitted.) Head v. State, 279 Ga.App. 608(1), 631 S.E.2d 808 (2006).
[2] (Citation, punctuation and footnote omitted.) Truitt v. State, 266 Ga.App. 56, 596 S.E.2d 219 (2004).
[3] Merritt was tried jointly with Robinson and the third assailant, Wendell Mackey.
[4] (Citations and footnotes omitted.) Id. at 58(1), 596 S.E.2d 219.
[5] (Punctuation and footnote omitted.) Robertson v. State, 277 Ga.App. 231, 235(2), 626 S.E.2d 206 (2006).
[6] See generally Wegman-Fakunle v. State, 277 Ga.App. 198, 200(1), 626 S.E.2d 170 (2006) (photographs of stolen medicine boxes properly admitted in shoplifting case).
[7] Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
[8] Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
[9] (Citation omitted.) Flanders v. State, 279 Ga. 35, 37(2), 609 S.E.2d 346 (2005).
[10] Bass v. State, 271 Ga.App. 228, 231(4), 609 S.E.2d 386 (2005).
[11] See Crawford v. State, 220 Ga.App. 786, 787(1), 470 S.E.2d 323 (1996); Court of Appeals Rule 25(c)(2) (claim of error not supported by citation of authority or argument is deemed abandoned).
[12] Flanders, supra.
[13] (Punctuation and footnote omitted.) Cowan v. State, 279 Ga.App. 532, 534(2), 631 S.E.2d 760 (2006).
[14] (Citations and punctuation omitted.) Rakestrau v. State, 278 Ga. 872, 874(3), 608 S.E.2d 216 (2005).
[15] See Turner v. State, 267 Ga. 149, 153(2), 476 S.E.2d 252 (1996) (opponent of challenge has burden of proving discriminatory intent). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320423/ | 685 S.E.2d 411 (2009)
300 Ga. App. 408
In re ESTATE OF WARREN.
No. A09A1297.
Court of Appeals of Georgia.
October 8, 2009.
Smith, Shaw & Maddox, Mather D. Graham, John M. Graham III, Rome, for appellant.
*412 Bush, Crowley, Leverett & Leggett, Walter E. Leggett Jr., Macon, for appellee.
ANDREWS, Presiding Judge.
Ralph Warren, the son of William Warren, deceased, appeals from the order of the Hancock County Superior Court ruling that Doris Mattison is the born-out-of-wedlock daughter of William Warren and therefore his heir with the right to inherit from his estate.[1] Ralph Warren claims the superior court erred by recognizing a rebuttable presumption under OCGA § 53-2-3(2)(B) that William Warren was Mattison's father based on parentage-determination genetic testing establishing at least a 97 percent probability of paternity. For the following reasons, we find no error and affirm.
Mattison filed a petition seeking a determination that she is the born-out-of-wedlock daughter of William Warren and entitled as his heir to inherit from his estate. Under OCGA § 53-2-3:
The rights of inheritance of a child born out of wedlock shall be as follows:
(1) A child born out of wedlock may inherit in the same manner as though legitimate from or through the child's mother, the other children of the mother, and any other maternal kin;
(2)(A) A child born out of wedlock may not inherit from or through the child's father, the other children of the father, or any paternal kin by reason of the paternal kinship, unless:
(i) A court of competent jurisdiction has entered an order declaring the child to be legitimate, under the authority of Code Section 19-7-22 or such other authority as may be provided by law;
(ii) A court of competent jurisdiction has otherwise entered a court order establishing paternity;
(iii) The father has executed a sworn statement signed by him attesting to the parent-child relationship;
(iv) The father has signed the birth certificate of the child; or
(v) There is other clear and convincing evidence that the child is the child of the father.
(B)(i) Subparagraph (A) of this paragraph notwithstanding, a child born out of wedlock may inherit from or through the father, other children of the father, or any paternal kin by reason of the paternal kinship if evidence of the rebuttable presumption of paternity described in this subparagraph is filed with the court before which proceedings on the estate are pending and the presumption is not overcome to the satisfaction of the trier of fact by clear and convincing evidence.
(ii) There shall exist a rebuttable presumption of paternity of a child born out of wedlock if parentage-determination genetic testing establishes at least a 97 percent probability of paternity. Parentage-determination genetic testing shall include, but not be limited to, red cell antigen, human leucocyte antigen (HLA), red cell enzyme, and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA) probes.
(C) If any one of the requirements of divisions (i) through (v) of subparagraph (A) of this paragraph is fulfilled, or if the presumption of paternity set forth in subparagraph (B) of this paragraph shall have been established and shall not have been rebutted by clear and convincing evidence, a child born out of wedlock may inherit in the same manner as though legitimate from and through the child's father, the other children of his or her father, and any other paternal kin;
(3) In distributions under this Code section, the children of a deceased child born out of wedlock shall represent that deceased child.
Applying this Code section, the superior court found: (1) that Mattison, who was born out of wedlock, filed with the court evidence showing parentage-determination genetic testing by deoxyribonucleic acid (DNA) probes which established at least a 97 percent probability that William Warren was her father; (2) that the evidence created a rebuttable presumption that William Warren was *413 her father; (3) that no clear and convincing evidence rebutted the presumption of paternity; and (4) that Mattison therefore established that she is the daughter of William Warren entitled to inherit from his estate in the same manner as though legitimate.
Mattison produced evidence of DNA testing done on DNA samples collected by buccal swabs from Mattison, Mattison's biological mother, and Ralph Warren, which showed a 99.65 percent probability that Mattison and Ralph Warren are half-siblings by having either the same mother or the same father. Since it was undisputed that Mattison and Ralph Warren did not have the same biological mother, and that William Warren was Ralph Warren's biological father, the trial court correctly found on this record that DNA testing which established a 99.65 percent probability that Mattison and Ralph Warren are half-siblings also established a 99.65 percent probability that William Warren was Mattison's father.
We find no merit to Ralph Warren's contention that "parentage-determination genetic testing" by DNA probes, as set forth in OCGA § 53-2-3(2)(B)(ii), is limited to direct comparison of DNA samples taken from the born-out-of-wedlock child and the deceased putative father. See OCGA § 53-2-27 (allowing court order to obtain DNA samples from the remains of a decedent and "from any party in interest whose kinship to the decedent is in controversy"). In the present case, the DNA testing which established a 99.65 percent probability that Ralph Warren and Mattison are half-siblings was "parentage-determination genetic testing" under the statute because the test results along with the undisputed facts demanded the conclusion that the same probability exists that William Warren was Mattison's father. The trial court did not err by finding that the DNA testing produced by Mattison created the rebuttal presumption set forth in OCGA § 53-2-3(2)(B).
Judgment affirmed.
MILLER, C.J., and BARNES, J., concur.
NOTES
[1] Ralph Warren brings this appeal acting individually and as administrator of the estate of his mother, Elizabeth Warren, deceased. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1723934/ | 463 S.W.2d 13 (1971)
Roy Randolph ERWIN, Appellant,
v.
The STATE of Texas, Appellee.
No. 43435.
Court of Criminal Appeals of Texas.
February 10, 1971.
*14 Grady Inzer, Longview, for appellant.
Henry Wade, Dist. Atty., John B. Tolle, Harry J. Schulz, Jr., W. T. Westmoreland, Jr., and Edgar A. Mason, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
ODOM, Judge.
This appeal is from a conviction of unlawfully carrying a pistol; the punishment was assessed by a jury at a fine of $100.00.
An examination of the appellant's brief shows that it contains a statement of the nature of the case and "discussion." Extraneous offenses and what the defense offered to stipulate during the trial are discussed, along with 22 different references to specific pages in the record. This does not properly assign error as required by Art. 40.09, Sec. 9, V.A.C.C.P. In order to ascertain appellant's complaint in this matter, it would be necessary for the court to search the entire record; a procedure which was not condoned in McElroy v. State, Tex.Cr.App., 455 S.W.2d 223. Appellant complains of general rulings of the trial court and this fails to meet the requirements of Art. 40.09, Sec. 9, V.A.C.C.P. Huffman v. State, Tex.Cr. App., 450 S.W.2d 858; Dailey v. State, Tex.Cr.App., 436 S.W.2d 346; Keel v. State, Tex.Cr.App., 434 S.W.2d 687.
There being no proper assignment of error and nothing contained in the record which we should consider as unassigned error, under Section 13 of said Art. 40.09, supra, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261093/ | 237 P.3d 853 (2010)
236 Or. App. 5
STATE of Oregon, Plaintiff-Respondent,
v.
Gary SMITH, aka Gary Smith, Jr., Defendant-Appellant.
070230679; A138276.
Court of Appeals of Oregon.
Argued and Submitted October 26, 2009.
Decided June 23, 2010.
*854 Rebecca A. Duncan, Assistant Chief Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Linda Wicks, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
Before ROSENBLUM, Presiding Judge, and BREWER, Chief Judge, and DEITS, Senior Judge.
BREWER, C.J.
Defendant, who was convicted of possession of a controlled substance, ORS 475.840 asserts on appeal that the trial court erred in denying his motion to suppress evidence. The trial court's factual findings are binding on appeal if there is constitutionally sufficient evidence to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We therefore review the record, and all inferences that it will support, in the light most favorable to the trial court's findings. Id. In the absence of express findings, we presume that the trial court decided factual issues in a manner consistent with its ultimate conclusion. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). The following facts are either undisputed or are the trial court's findings and supported by constitutionally sufficient evidence. Ehly, 317 Or. at 75, 854 P.2d 421. As explained below, accepting the trial court's factual determinations, we nonetheless conclude that defendant was unlawfully stopped and, under Article I, section 9, of the Oregon Constitution was entitled to suppression of the evidence obtained as a result of that unlawful stop. Accordingly, we reverse and remand.
The relevant facts are not disputed. Defendant was a passenger in a car that was *855 stopped for making an improper signal before turning. Officer Manzella approached the car and determined that the driver's license had been suspended. Manzella also asked defendant for his name, which Manzella wrote down. Manzella determined that, pursuant to a police policy, the car needed to be towed. Manzella wrote out a citation, which he handed to Officer Hart, who approached the driver's side of the car. Manzella approached the passenger side of the car, asked defendant to step out of the car, and as defendant was stepping out, Manzella asked defendant, "Do you have anything on you you shouldn't have, do you have any weapons, anything like that?" Defendant told Manzella that he had a pipe and several rocks of crack cocaine in his possession. Manzella seized those items and arrested defendant for possession of a controlled substance. Although Manzella asked defendant to step out of the car because he intended to have it towed, he did not communicate that reason to defendant. Nor did Manzella communicate to defendant that he was, or was not, free to leave. The trial court found that defendant subjectively did not feel free to leave.
Defendant asserted before the trial court, and reiterates on appeal, that he was "seized" for purposes of Article I, section 9, at the point when he acknowledged having drugs in his possession. Article I, section 9, gives people the right "to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure." There are three general categories of encounters that we analyze for purposes of Article 1, section 9. First, there is "mere conversation," which involves a "noncoercive encounter" with a police officer that includes "no restraint of liberty." That type of encounter requires no justification and does not implicate Article I, section 9. State v. Holmes, 311 Or. 400, 410, 813 P.2d 28 (1991) ("[L]aw enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful."). Second, a temporary restraint of a person's liberty for the purpose of investigation must be justified by a reasonable suspicion of criminal activity. Id. at 407, 813 P.2d 28. Finally, an arrest is a seizure under Article I, section 9, that must be justified by probable cause. Id.
Because the state concedes that Manzella did not have reasonable suspicion or probable cause to believe that defendant had committed a crime when he asked him to step out of the car and inquired about whether defendant had anything that he should not have, the dispositive issue is whether Manzella engaged defendant in "mere conversation" by doing so, rather than having restrained or "seized" defendant in the constitutional sense.
In Holmes, the court distinguished between "mere conversation" and an encounter that constitutes a seizure under Article I, section 9. The court held that a person is seized for purposes of Article I, section 9,
"(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances."
Holmes, 311 Or. at 409-10, 813 P.2d 28.
In applying the test from Holmes, the trial court struggled with the analysis, but felt compelled to reach the result that it did based on appellate case law. The court said:
"I mean if you're asking me do I think that somebody under those circumstances would be free to say no, I'm leaving, bye, actually, I don't think somebody would feel free to leave unless they happened to be trained as a lawyer and have a great deal of self confidence and willing to take the risk that the officer would understand the nuances in Salem. You're right, can't do a thing.
"But that's not how the appellate courts think. The way the appellate courts think is that the line between a mere conversation and a constitutional stop requires something that conveys the impression that you're not free to leave to a reasonable *856 person from the appellate point of view.
"And from the appellate point of view, it takes a warrant check or something that is the equivalent like sit here or stay there or don't move for a minute while Iwhile I makeyou just move over there and stand for a second.
"None of that happened here. So I don't see how I can grant the motion."
In sum, in the trial court's own view, a reasonable person would not have felt free to leave under the circumstances of this case. Further, the court found that defendant did not subjectively feel free to leave. The court nonetheless denied the motion to suppress, based on its understanding of appellate case law.
The case upon which the trial court primarily reliedand on which the state primarily relies on appealis State v. Amaya, 336 Or. 616, 89 P.3d 1163 (2004). In Amaya, the issue was whether an officer, during a valid traffic stop, "may question a person in the vehicle about safety matters unrelated to the purpose of the stop." Id. at 618, 89 P.3d 1163. The defendant was a passenger in a van that was lawfully stopped for an infraction. Reynolds, the officer who approached the van, observed that both the driver and the defendant appeared nervous, and the defendant appeared to be placing something in a large purse at her feet. Because of her actions, Reynolds felt concerned for his safety. Id. After discovering that the driver's license had been suspended, Reynolds inquired whether the defendant had a valid license and, when she responded that she did, took her license to check its validity. Id. at 618-19, 89 P.3d 1163.
When the driver consented to a search of the van, Reynolds asked the defendant and the driver to step out. Because of Reynolds's concern about the defendant's purse, he asked her to leave it in the van. Id. at 619, 89 P.3d 1163. Instead, she removed the bag from the van and tried to conceal it. Reynolds, believing that the defendant might have a weapon or drugs in the bag, asked the defendant what was in it. The defendant acknowledged that there was a gun in the bag and that she did not have a concealed weapon permit. Reynolds then searched the bag. Id.
In Amaya, the defendant argued "that the police officer's questions to her and his seizure of a weapon from her bag violated her right to be free from unreasonable searches and seizures[.]" Id. at 621-22, 89 P.3d 1163. The court first considered whether ORS 810.410 authorized the officer to ask the defendant about the contents of her bag; the court held that that inquiry was permissible under the statute because its purpose was "to ensure the safety of the officer." Id. at 625, 89 P.3d 1163. Turning to whether the question about the contents of the defendant's bag nonetheless violated Article I, section 9, the court noted:
"[The] defendant argues that (1) Reynolds's questions to her about the bag at least temporarily restrained her liberty and therefore constituted a `seizure' for purposes of Article I, section 9; and (2) because Reynolds did not have a reasonable suspicion that defendant posed a threat to his safety, the seizure violated Article I, section 9."
Id. at 625, 89 P.3d 1163. The defendant also posited, in the alternative, that she had been unconstitutionally seized at various earlier points in the encounter, including when she was asked to get out of the van. Id. at 627, 89 P.3d 1163. The court declined to address the defendant's argument as a separate question, because she had not preserved it, but determined that it "must be considered as part of her argument about the questioning concerning her bag." Id. at 630, 89 P.3d 1163.
The court then made the statements on which the state relies in the present case:
"It is a truism that all passengers in a validly stopped car have been `stopped,' at least physically. However, such a stop is not a `seizure' of those passengers for constitutional purposes. See Holmes, 311 Or. at 410-12 [813 P.2d 28] (discussing circumstances in which police-citizen encounters are not `seizures'). It also is true that an officer may take reasonable steps respecting the passengers, including, for example, asking the passengers to exit the vehicle so *857 the officer may search the vehicle, assuming that the driver has consented to the search or that it otherwise is justified. However, an officer's further exercise of coercive authority over the passengers after they are out of the vehicle may, in certain circumstances, constitute a seizure. Here, defendant argues that Reynolds's questions to her after she exited the van about the contents of her bag constituted such a seizure."
Id. at 630-31, 89 P.3d 1163. The court went on to conclude that it need not decide whether the defendant was seized by the questioning, given that any such seizure was justified by officer safety concerns. Id. at 631, 89 P.3d 1163.
The Supreme Court's holding in Amaya is not pertinent to any issue in this case; there is no suggestion that officer safety concerns justified what occurred here. To the extent that the state relies on the court's statement in passing that "an officer may take reasonable steps respecting the passengers, including, for example, asking the passengers to exit the vehicle so the officer may search the vehicle, assuming that the driver has consented to the search or that it otherwise is justified," id. at 630-31, 89 P.3d 1163, we do not read that statement to suggest that, regardless of the totality of the circumstances, an officer's request that a person step out of a vehicle inevitably constitutes "mere conversation." As noted above, the proper inquiry is whether, under the totality of the circumstances, the person believed that the officer intentionally and significantly interfered with his or her liberty or freedom of movement "and such belief [was] objectively reasonable in the circumstances." Holmes, 311 Or. at 409-10, 813 P.2d 28.
We regard the court's statement in Amaya as reflecting its view that, if a person who knows that the vehicle he or she occupies is about to be searched and is asked to step out of the vehicle in order to allow the search to proceed, merely asking the person to step out of the vehicle would not lead an objectively reasonable person to believe that he or she had been "seized."
But that is not what happened in this case. Here, Manzella initially approached defendant, asked for his name, and wrote it down. Manzella approached defendant a second time, asked him to step out of the car, and, while defendant was stepping out of the car, questioned him about anything he "shouldn't have." There is no suggestion that either officer at the scene had communicated with the driver or defendant that they were being asked to step out of the car to facilitate the towing of the car; in fact, the evidence indicates that the driver had not yet even been given the citation that Manzella had written. The "totality" of those circumstances differs significantly from a situation where a vehicle's occupant is asked to step out in order to allow the officer to do something with the vehicle that is legitimately related to the traffic stop, or was consented to by the driver.
To the extent that the state is relying on this court's decision in Amaya, see State v. Amaya, 176 Or.App. 35, 29 P.3d 1177 (2001), aff'd on other grounds, 336 Or. 616, 89 P.3d 1163 (2004), again we disagree that it dictates the result here, because the facts are distinguishable, as noted above, the legal issue addressed there was different, and our more recent case law sheds further light on the proper analysis. The argument made to this court by the defendant in Amaya was that any police inquiry during a traffic stop that was unrelated to the stop must be based on reasonable suspicion. Id. at 38-39, 29 P.3d 1177. The defendant did not urge, nor did this court decide, the significance of being asked to get out of a vehicle in making a determination, under the totality of the circumstances, of whether or not a passenger had been "seized" for purposes of Article I, section 9.
More on point is our recent decision in State v. Lantzsch, 229 Or.App. 505, 214 P.3d 22 (2009). In Lantzsch, the defendant was a passenger in a car that was lawfully stopped for an infraction. After an officer determined that the driver had a suspended license, he asked her to step out of the car and come to the police car. Id. at 507, 214 P.3d 22. The defendant, who remained seated in the car, turned around several times to look at the police car during the ensuing five minutes. Id. After the officer arrested the *858 driver and discovered drugs in a search incident to arrest, he returned to where the defendant remained seated in the car. Id.
"The deputy stood outside the car, with defendant still seated in the passenger's seat, and asked defendant to step out of the car and talk to him. The deputy did not tell defendant that he was free to go. The deputy testified that he did not order defendant to get out of the car but, rather, merely asked him to step out so they could talk. Defendant got out of the car and was asked to walk back to the rear of the car to meet the deputy. By this time, a second deputy had arrived to act as a cover officer and was standing behind the deputy who had first contacted defendant. As they reached the rear of the car, the deputy asked defendant whether he had any `weapons or contraband.'"
Id. at 507-08, 214 P.3d 22. One of the reasons why the deputy wanted to talk to the defendant was because he "wanted to figure out who [the driver] was." Id. at 509, 214 P.3d 22 (brackets in original). We stated:
"In this case, although the deputy testified that he approached defendant to ask him about the driver's identity as part of his investigation of the driver, the deputy did not ask defendant that question until after he had asked defendant to get out of the car, asked him whether he had any drugs or weapons, and obtained his consent to a search. The deputy's stated justification for approaching defendant is simply not relevant to our determination of whether the deputy seized defendant by asking him to get out of the car and then asking him about drugs and weapons. See State v. Ainsworth, 310 Or. 613, 621, 801 P.2d 749 (1990) ('Article I, section 9, prohibits certain governmental action, not certain governmental states of mind. The Oregon Constitution does not require an inquiry into the observing officer's thoughts to determine whether the officer's conduct unconstitutionally violates a defendant's Article I, section 9, rights.'); see also State v. Hall, 339 Or. 7, 29 n. 16, 115 P.3d 908 (2005) (same). Regardless of the deputy's assertion that he approached defendant as part of his investigation of the driveran investigation that had ended by that point in the encounterthe first contact the deputy had with defendant was his request that defendant get out and come to the rear of the car and speak with him; moreover, that request was immediately followed by an inquiry into drugs and weapons."
Lantzsch, 229 Or.App. at 512-13, 214 P.3d 22 (emphasis in original). Ultimately, we determined that an objectively reasonable person in the defendant's position could have believed that the officer had significantly restricted his liberty or freedom of movement:
"We conclude for the following reasons that, in the totality of the circumstances in this case, a reasonable person in defendant's position could have believed that the deputy had exercised authority over his freedom of movement when the deputy asked defendant to get out of his vehicle; that was an exercise of authority that implicated his rights under Article I, section 9, and, accordingly, must have been based on a reasonable suspicion that he had committed or was about to commit criminal conduct. Hall, 339 Or. at 15, [115 P.3d 908]. * * *
"At the time the deputy asked defendant to get out of the car, a second deputy had arrived and was standing `a few feet' behind the deputy; defendant was asked not only to get out of the car, but also to walk to the rear of the car to speak with the deputy. According to the deputy's testimony, he did not tell defendant that he was free to go, and there is no evidence in the record showing that the deputy made defendant aware that he was being approached simply as part of the deputy's investigation of the driver. Indeed, the deputy said nothing to defendant to indicate that he himself was not the target of a criminal investigation. Thus, if defendant believed that he was not free to leave when the deputy asked him to get out the car, that belief was reasonable."
Lantzsch, 229 Or.App. at 515-16, 214 P.3d 22.
The present case is similar in several respects. First, as we noted in Lantzsch, an officer's unexpressed reasons for approaching and questioning someone are "simply not *859 relevant" when the question is whether a reasonable person in the defendant's position could have believed that an officer had significantly restricted his or her liberty or freedom of movement. Id. at 513, 214 P.3d 22 (citing Ainsworth, 310 Or. at 621, 801 P.2d 749). Thus, although in the present case, it appears that Manzella had a valid reason related to the traffic stop for asking defendant to step out of the car (because Manzella intended to have it towed), that reason was not expressed to defendant or the driver at the time defendant was asked to step out, and therefore, on this record, does not inform what a reasonable person in defendant's situation would have thought.
Second, in this case, as in Lantzsch, there was a second officer on the scene. Third, as in Lantzsch, defendant was not told he was free to leave. Finally, as in Lantzsch, the officer immediately questioned defendant about contraband, rather than pursuing further inquiry or taking further action related to the traffic stop. The factual difference that defendant here was questioned about contraband immediately upon stepping out of the car, whereas the defendant in Lantzsch was asked to step to the back of the car first is a minor distinction, at best, that has little bearing on whether a reasonable person in defendant's position could feel that his liberty had been significantly restricted. We thus conclude, as we did in Lantzsch, that the "objective" inquiry under the Holmes formulation leads to the conclusion that a person in defendant's position could have believed that his liberty and freedom of movement had been restricted and that that belief was objectively reasonable under the circumstances.
In Lantzsch, we were obliged to remand the case because the trial court had not made the requisite factual finding concerning the subjective prong of the Holmes test. Lantzsch, 229 Or.App. at 516-17, 214 P.3d 22. Here, by contrast, the trial court specifically found that defendant subjectively believed that his liberty and freedom of movement had been restricted. Given our conclusion that defendant's subjective belief was objectively reasonable, we conclude that the trial court erred in denying defendant's motion to suppress.[1]
We emphasize that our inquiry is into the totality of the circumstances that surrounded defendant's encounter with the police. There is no bright-line rule as to whether an officer's request that a person step out of a vehicle in the context of a traffic stop constitutes a seizure for purposes of Article I, section 9. Such a request is merely one of the factors that is part of the totality of the circumstances that must be evaluated.
Reversed and remanded.
NOTES
[1] The state appears to take the position that, although defendant argued in the trial court that he was entitled to suppression, defendant's failure to make an argument pursuant to State v. Hall, 339 Or. 7, 115 P.3d 908 (2005), that there was no attenuation between the illegality and the evidence he sought to suppress, precludes suppression. The state is incorrect. "After a defendant shows a minimal factual nexus between unlawful police conduct and the defendant's consent, then the state has the burden to prove that the defendant's consent was independent of, or only tenuously related to, the unlawful police conduct." Id. at 34-35, 115 P.3d 908 (emphasis added). The state makes no argument that it has demonstrated attenuation here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261106/ | 223 F. Supp. 1011 (1963)
EXECUTIVE PROPERTIES, INC., an Arizona corporation, Plaintiff,
v.
Max SHERMAN and Louis B. Tishler, Jr., solely as Trustee under Trust Agreement dated April 1, 1959, known as Maryland Plaza Trust, and Louis B. Tishler, Jr., Defendants.
Civ. No. 4863.
United States District Court D. Arizona.
November 5, 1963.
*1012 Foster G. Mori and David Dietz, Phoenix, Ariz., for plaintiff.
Charles L. Hardy, Kramer, Roche, Burch & Streich, Phoenix, Ariz., for defendants.
EAST, District Judge.
The defendants have moved for an order dismissing the complaint and cause of plaintiff on the main ground of a "lack of jurisdiction over the persons of the defendants" in these diversity proceedings removed from the Superior Court of the State of Arizona for the County of Maricopa.
The plaintiff's complaint alleges in substance that the defendants Max Sherman and Louis B. Tishner, Jr., as Trustees on behalf of their trust, and the defendant Louis B. Tishner, Jr., individually, executed a written contract dated on or about December 19, 1962, and delivered in Phoenix, Arizona, whereby the plaintiff, an Arizona corporation, at all times doing business within the State of Arizona, was authorized to procure a purchaser for real property situate within the State of Arizona and where the defendants agreed to pay the plaintiff for such service the sum of $30,000.00;
Further, that the plaintiff did find and present to the defendants a willing and able purchaser for the real property and did otherwise fully perform the contract on its part to be performed, but that the defendants did repudiate the agreement and have failed to perform as agreed; and
Further, that during some of the negotiations culminating in the contract aforesaid, the defendant Max Sherman, acting for himself and as agent for the defendant Louis B. Tishner, Jr., was *1013 personally present in the State of Arizona.
It appears from defendants' petition for removal herein that during all of the pertinent times herein each of the defendants have been and are nonresidents of the State of Arizona and have been and are residents and citizens of the State of Illinois.
It appears from an affidavit of mailing filed in the aforesaid state proceedings that service of summons and complaint in the cause upon the defendants was had by enclosing a copy thereof "in a securely sealed envelope with postage prepaid thereon, sent by registered mail, return receipt requested, to * * *" each of the following named persons:
"Mr. Max Sherman "Mr. Louis B. Tishner, Jr.
2701 West Chase and Ressman & Tishner
West Rogers Park Attorneys at Law
Chicago, Illinois" Suite 620, 110 S. Dearborn St.
Chicago 3, Illinois."
And, further, that the affiant "received the return receipt attached hereto signed by Max Sherman" and "by J. Borowshi for L. Tishner."
In personam jurisdiction of this Court "depends on whether the service [of summons and complaint as aforesaid] was sufficient to give the [Arizona] state court jurisdiction." Curtis Publishing Co. v. Cassel, 302 F.2d 132, 134 (10th Cir. 1962.)
It seems that service in the Arizona court was had pursuant to Rule 4(e) (2) of the Arizona Rules of Civil Procedure, 16 A.R.S. Cum. pocket part 8, 1962 (Rule 4):
"When the defendant * * * is a person, partnership, * * * which has caused an event to occur in this state out of which the claim which is the subject of the complaint arose, service may be made as herein provided, and when so made shall be of the same effect as personal service within the state."
"(a) Registered mail. When the whereabouts of a defendant outside the state is known, the serving party may deposit a copy of the summons and complaint in the post office, registering it with a return receipt requested. Upon return through the post office of the registry receipt, he shall file an affidavit with the court showing the circumstances warranting the utilization of the procedure * * *. This affidavit shall be prima facie evidence of personal service of the summons and complaint * * *."
The theory of the defendants' contention of lack of jurisdiction over the persons of the defendants is that the service of summons and complaint as had in the state court pursuant to Rule 4 is not sanctioned under the Constitution of the State of Arizona in that Article VI, § 13, A.R.S., thereof limits the process of the Superior Court "to all parts of the state."
And, further, that to assert "in personam" jurisdiction upon the defendants through such service of summons and complaint violates the due process clause of the Constitution of the United States.
These theories of lack of jurisdiction over the persons and failure of federal due process in the Arizona court are each untenable and must fail.
I suggest that the defendants confuse the concept of "process" as used in the Arizona Constitutionbeing the court's process or power to enforce its valid judgments and orderswith the concept of "notice of process." As for the constitutional concept of "process," Arizona Rule 4 purports to give to the Arizona court the same procedure to enforce its subject matter jurisdiction to *1014 finally adjudicate claims (local or transitory causes of action) arising out of "an event" occurring within the state against all persons, be they residents or nonresidents of Arizona. This is a procedure to aid the Court in entering a valid judgment,[1] and I conclude that Rule 4 does not purport to extend the process of the Arizona court beyond the "parts of the state," contra to Article VI, § 13.
Of course, notice of process must sometimes extend beyond geographic jurisdictional limitations of a court to meet the "reasonable notice" requirements of due process. Pennoyer v. Neff, ante, 95 U.S. 714, 24 L. Ed. 565 (1877) is the classic teacher of this concept. In this regard, personal service or receipt of the summons and complaint is the epitome of reasonable notice, as it then becomes actual unless one voluntarily turns his back. Rule 4 contemplates that "personal service of the copy of the summons and the complaint" will be had, and only provides that compliance with it "shall be prima facie evidence of personal service * * *." In any event, any suggested lack of "reasonable notice" to the defendants of the state proceedings is moot, for their petition for removal acknowledges they received the copies of summons and complaint as mailed to them, respectively.
Our inquiry now extends to whether the Arizona court, or this Court for that matter, in proceeding under the procedural Rule 4 to adjudicate a valid in personam judgment against the nonresident defendants, does violence to the due process guarantee under the Federal Constitution. It seems that the Supreme Court of Arizona has not dealt with either the state or federal constitutionality of Rule 4, and it would appear that comity between state and federal exercise of adjudication might dictate abstention here, with a deference to the Arizona state court for decision. City of Meridian v. Southern Bell Tel & Tel Co., 358 U.S. 639, 79 S. Ct. 455, 3 L. Ed. 2d 562 (1959); Harrison v. N. A. A. C. P., 360 U.S. 167, 19 S. Ct. 1025, 3 L. Ed. 2d 1152 (1959)[2].
However, since I conclude that Rule 4 is not ambiguous or ill-defined, "fairly open to interpretation" or susceptible to serious challenge under the Arizona Constitution, I am under obligation to face up to and deal with the federal constitutional question here presented. United States v. Bureau of Revenue of the State of New Mexico, 291 F.2d 677, 679 (10th Cir. 1961).[3]
Rule 4 was drafted by the Committee on Rules of Civil Practice and Procedure of the Arizona State Bar Association. The Committee's comment as to the rule's intended constitutional scope is enlightening:
"The choice of the general phrase used in the amendment is intended to give to Arizona residents the maximum privileges which the Constitution of the United States permits them to have, * * *." 16 A.R.S. Cum. Pocket Part 8 (1962).
The "maximum privileges" under the Federal Constitution as to acquiring in *1015 personam jurisdiction over nonresident defendants has been redefined in recent years by three landmark Supreme Court cases: International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), and Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958).
The basic principle of extending a forum's jurisdiction over nonresidents was laid down in International Shoe, 326 U.S. at p. 316, 66 S.Ct. at p. 158, 90 L. Ed. 95, where the court recalled and reasoned that:
"Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733 [24 L. Ed. 565].
"But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'"
In McGee, the court acknowledges the teaching of International Shoe and notes that:
"Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over * * * nonresidents. * *" 355 U.S. 222, 78 S. Ct. 200, 2 L. Ed. 2d 223,
and then held that the State of California had the minimum contacts necessary to exercise in personam jurisdiction over a Texas insurance company when that company's only contacts with California were:
1) The insurance policy was delivered in California;
2) Premiums were mailed from California;
3) The insured died in California; and
4) The beneficiary resided in California.
Hanson acknowledged the International Shoe doctrine of "minimum contacts" but failed "to find such contacts in the circumstances of this case * * *" as "the record discloses no solicitation of business in that State either in person or by mail." And, further "* * * [t]he cause of action in this case is not one that arises out of an act done or transaction consummated in the forum State." [Italics supplied.] 357 U.S. 251, 78 S. Ct. 1238, 2 L. Ed. 2d 1283.
This language from Hanson lends great significance to the language of Rule 4, which subjects a person who "* * * has caused an event to occur in this state out of which * * * the [cause of action] arose * * *" to in personam jurisdiction.
At least one other state has adopted a statute designed to take advantage of the "minimum contacts" principle enunciated in International Shoe. In 1956, Illinois revised its Civil Practice Act in part as follows:
"§ 17. Act submitting to jurisdiction Process
(1) Any person, whether or not a citizen or resident of this State, who * * * does any of the acts hereinafter enumerated, thereby submits said person, * * * to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of said acts:
(a) The transaction of any business within this State;
(b) The commission of a * * * tortious * * * within this State;
*1016 (c) The ownership, use, or possession of any real estate situated in this State;
(d) Contracting to insure * *." Ch. 110 Ill.Ann.Stat. § 17(1) (1956).
The scope and procedural effect of this statute and Rule 4 are identical. The Illinois statute takes four subsections to accomplish what the Arizona rule does in one inclusive sentence.
Section 17 was held to be constitutionally sound by the Illinois Supreme Court in Nelson v. Miller, 11 Ill. 2d 378, 143 N.E.2d 673 (1957) under the teachings of International Shoe and McGee, supra. The United States Court of Appeals for the Seventh Circuit has on at least two occasions held Illinois § 17 per se to be valid under the Federal Constitution, but in the cases before it failed to find present the necessary and requisite "minimum contacts" by the nonresident defendants within the forum state. Orton v. Woods Oil & Gas Co., 249 F.2d 198 (7th Cir. 1957); and Kaye-Martin v. Brooks, 267 F.2d 394 (7th Cir. 1959).
So, I conclude that Rule 4, per se, is not violative of the due process clause of the United States Constitution and that the maximum privileges permissible to the Arizona court under the rule are to be determined by applying the International Shoe formula to the within-state-contact facts of each case.
As for the case before us, the following in-Arizona contacts appear on the record:
1) Plaintiff, one of the contracting parties, is and was at all pertinent times an Arizona corporation;
2) The nonresident defendants own real estate situate in Arizona, the subject matter of the contracts, and over which the claimed brokerage commission claim held by plaintiff arose;
3) The entire unilateral performance by plaintiff of the contract out of which the claim (cause of action of plaintiff) for a brokerage commission is based was wholly had within Arizona; and
4) The defendants caused their executed documents to be sent into Arizona to be acted upon in Arizona, and one of the defendant trustees was actually present within Arizona at the time of executing escrow instructions with reference to the exchange agreement.
It is from these events, which the defendants "caused * * * to occur in (Arizona), out of which (plaintiff's) claim * * * which is the subject of the complaint arose, * * *" Manifestly, the defendants had more than the requisite "minimum contacts" with Arizona under the formula of International Shoe, supra, in order to affix in personam jurisdiction, and, furthermore:
"It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State." McGee, supra, 355 U.S. p. 223, 78 S.Ct. p. 201, 2 L. Ed. 2d 223.
In view of the events which the defendants have caused to occur, being all things necessary to bring about and establish an obligation on their part, within the State of Arizona, it would indeed offend "traditional notions of fair play and substantial justice" to leave the defendants immune from the orderly procedures of Arizona's court to adjudicate and reduce that obligation to a valid in personam judgment. No longer must the sheriff search out and produce a defendant in person to the forum court. Instead, modern concepts of the orderly administration of justice require of the person who comes or extends himself into a forum's territory and breaches a duty or incurs an obligation therein, that he himself return upon reasonable call and answer in personam. The defendants' motion to dismiss for lack of personal jurisdiction of them should be denied.
The defendants' motion to dismiss on the grounds that the complaint fails to state a claim upon which relief can be granted is patently without merit and should be denied.
NOTES
[1] Heat Pump Equipment Co. v. Glen Alden Corp., 93 Ariz. 361, 380 P.2d 1016 (1963) holds that Rule 4 "relates to procedural matters, within the meaning of Article VI, § 5 of the State Constitution, and is a valid exercise of the rule-making power of this Court."
[2] "Proper exercise of federal jurisdiction requires that controversies involving unsettled questions of state law be decided in the state tribunals preliminary to a federal court's consideration of the underlying federal constitution questions." City of Meridian, supra, 358 U.S. p. 640, 79 S.Ct. p. 456, 3 L. Ed. 2d 562.
"* * * the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them." Harrison, supra, 360 U.S. p. 176, 79 S.Ct. p. 1029, 3 L. Ed. 2d 1152.
[3] Admonishes that where the state statute is clear and leaves no room for construction: "* * * the rule of abstention * * * does not permit the federal district courts to defer to the state courts for decision of federal constitutional questions." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2283102/ | 294 Pa. Super. 544 (1982)
440 A.2d 599
COMMONWEALTH of Pennsylvania,
v.
Richard A. MERCER, Appellant.
Superior Court of Pennsylvania.
Argued January 20, 1981.
Filed January 22, 1982.
*545 Richard W. Berlinger, Glenside, for appellant.
Richard E. Reilly, King of Prussia, for Commonwealth, appellee.
Before HESTER, POPOVICH and Di SALLE[*], JJ.
*546 HESTER, Judge:
This is an appeal from a judgment of sentence and a fine of $3,900.00 imposed upon the appellant, following a finding that the appellant was guilty of operating a vehicle exceeding the maximum permissible weights prescribed by the Pennsylvania Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81, as amended, 75 Pa.C.S.A. Section 4941 et seq. Appellant was originally found guilty of this summary offense before a District Magistrate, which was affirmed, following a de novo hearing before the Court of Common Pleas of Montgomery County.
On January 16, 1980 at 11:55 a.m., Officer John R. Golbreski, a patrolman of the Upper Merion Township Police Department, observed the appellant operating a GMC truck tractor with a Fontaine trailer proceeding Eastbound on the Schuylkill Expressway (Interstate 76). According to Officer Golbreski, the tractor was straining, and the tires of the trailer were "ballooning". Officer Golbreski stopped the tractor-trailer on Interstate 76, Eastbound lane, near the Route 202 exit.
Upon request, appellant furnished Officer Golbreski his bill of lading, which indicated that appellant was hauling a load weighing 58,800 pounds. Appellant was hauling this load, as an independent contractor, for Kreitz Motor Express, a specialized carrier of oversized loads by motor truck. Appellant's trip was from Penn Iron Works in Reading to Warner Swazey Company in King of Prussia. Appellant was paid approximately $300.00 for this trip.
It is undisputed that the load included four pieces of heavy equipment, which were apparently unfinished parts of furnaces known as weldments.
Officer Golbreski directed appellant to follow him to the Township scales where the vehicle was weighed. It is undisputed that the gross weight of the vehicle was 88,340 pounds. On the basis of this weighing, Officer Golbreski issued a citation assessing a fine of $3,900.00 pursuant to the Vehicle Code, 75 Pa.C.S.A. Section 4945(a).
*547 On the day following the issuance of the citation, Kreitz Motor Express produced a permit for appellant's load which purported to authorize the operation of the vehicle at a weight of 90,000 pounds. It is undisputed that said permit was improperly issued, or was issued on the basis of false information, due to the fact that the load in question was divisible. Under the circumstances relevant to this case, the Vehicle Code authorizes a special permit for hauling a load in excess of the maximum weight requirement only if the load is "non divisible". 75 Pa.C.S.A. Section 4961(a)(2). It is also undisputed that the appellant did not comply with the Vehicle Code, 75 Pa.C.S.A. Section 4962(b), which states, "Display of permit Every permit shall be carried in the towing vehicle and shall be open to inspection by any police officer or authorized agent of the issuing agency or any person having an accident involving a permitted vehicle or combination."
Appellant contends that, due to the fact that a special permit had been issued to Kreitz, authorizing a weight up to 90,000 pounds, Subchapter C of Chapter 49 of the Vehicle Code, 75 Pa.C.S.A. Section 4941 et seq., is inapplicable. Appellant admits violating Subchapter D of Chapter 49 of the Vehicle Code, 75 Pa.C.S.A. Section 4961 et seq., since the load in question was divisible and since he did not carry the permit at the time he was stopped by Officer Golbreski.
Appellant further argues that the penalties for exceeding maximum weights, specified by Subchapter C of Chapter 49 of the Code, 75 Pa.C.S.A. Section 4945(a), are not applicable to his offense, since a special permit had been issued pursuant to Subchapter D of Chapter 49. Appellant urges that the fine for his offense is controlled by 75 Pa.C.S.A. Section 4907 which states:
"Any person violating any provision of this chapter [Chapter 49, SIZE, WEIGHT, AND LOAD] for which a penalty is not otherwise provided is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of not less than $50.00 nor more than $100.00."
We disagree.
*548 The permit in question authorized the transportation of "a furnace" up to a maximum weight of 90,000 pounds. "A furnace" would presumably be a non-divisible load, for which the issuance of a special permit is authorized by the Vehicle Code, 75 Pa.C.S.A. 4961(a)(2). Since the load in question was admittedly a divisible load of four separate components, the permit in question was invalid ab initio, since there is no statutory authority for its issuance.[1]
Since the permit in question was invalid, the appellant was properly fined pursuant to 75 Pa.C.S.A. Section 4945(a) for operating a vehicle or combination exceeding the maximum gross weight without a valid permit.[2]
Since the permit was invalid, appellant's offense constitutes a safety violation, rather than a registration violation. Commonwealth v. Smith, 409 Pa. 521, 187 A.2d 267, 270 (1963); Commonwealth v. Dunn, 478 Pa. 35, 385 A.2d 1299, 1307 (1978); Commonwealth v. Tirpak, 271 Pa.Super. 357, 413 A.2d 705, 707 (1979).
Appellant also contends that the fine of $3,900.00 is confiscatory under the circumstances. Appellant admitted at trial that he had no idea how much weight he was carrying until Officer Golbreski weighed him at the township scale. We find that the fine in question is a proper exercise of the police power of the Commonwealth, to preserve the safety of the travelling public and to maintain the roads of the Commonwealth in a suitable condition. The load in question could have, and should have, been transported in two separate loads. The fact that it was not constitutes *549 a violation of Chapter 49, Subchapter C of the Vehicle Code, 75 Pa.C.S.A. Section 4941 et seq.[3]Smith, supra.
Appellant also contests whether Officer Golbreski had probable cause to stop him and whether Officer Golbreski, a township police officer, has the authority or jurisdiction to arrest him on a ramp of Interstate 76.
It is undisputed that the appellant was arrested within the territorial limits of Upper Merion Township.
The Vehicle Code, 75 Pa.C.S.A. Section 4981(a) states:
"Any police officer is authorized to require the driver of any vehicle or combination to stop and submit the vehicle or combination to be measured and weighed. . . ."
The Vehicle Code, 75 Pa.C.S.A. Section 6109(a) also states:
"The provisions of this title [Title 75] shall not be deemed to prevent the department on State-designated highways and local authorities on streets or highways within their physical boundaries from the reasonable exercise of their police powers."
(Emphasis supplied).
Under the circumstances, Officer Golbreski's conduct represents a reasonable exercise of the police power of the township, in avoiding a safety hazard to the travelling public, in protecting township roads and in enforcing the laws of the Commonwealth of Pennsylvania.
Officer Golbreski testified "the vehicle was straining, the tires ballooning."
Under these circumstances, he had probable cause to stop the truck and require that it be weighed. Commonwealth v. Caporiccio, 210 Pa.Super. 230, 232 A.2d 42 (1967); Commonwealth v. Mentz, 3 D. & C.3d 257 (1975).
Judgment of sentence affirmed.
NOTES
[*] Decision was rendered prior to Di SALLE, J. leaving the bench of the Superior Court of Pennsylvania.
[1] The permit in question was apparently secured from the Pennsylvania Department of Transportation as a result of information conveyed to the Department via telephone. While not passing judgment on this lenient practice, under these circumstances, the permitee would have the burden of establishing that the correct information was conveyed to the Department and that the issuance of the permit is authorized by the Vehicle Code.
[2] We do not reach the issue whether the failure to display a valid permit in violation of 75 Pa.C.S.A. Section 4962(b), under other circumstances, would solely compel the invalidation of the permit.
[3] Appellant also testified that he was aware that the maximum permitted weight of his truck, trailer and merchandise was 73,280 pounds without a permit. He also estimated that the weight of the truck and trailer was approximately 30,000 pounds. The bill of lading which appellant supplied to Officer Golbreski showed that the weight of his load was 58,800 pounds. Therefore, with any degree of diligence, appellant should have required a special permit before agreeing to carry the load. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320466/ | 234 Ga. 248 (1975)
215 S.E.2d 251
BYRD
v.
HOPPER.
129809.
Supreme Court of Georgia.
Argued April 14, 1975.
Decided April 22, 1975.
James C. Bonner, Jr., Thomas M. West, for appellant.
Arthur K. Bolton, Attorney General, Lois Oakley, Assistant Attorney General, for appellee.
NICHOLAS, Chief Justice.
Petitioner is presently confined under a five-year sentence imposed for motor vehicle theft. He did not appeal his conviction. His petition for habeas corpus relief complained solely of a portion of the convicting court's charge to the jury that recent possession by petitioner of the goods taken "if not satisfactorily explained, raise[s] the presumption of guilt and it would authorize you to identify the defendant as the guilty party and to convict him of the crime as charged. The presumption of guilt, however, is one of evidence and not of law, and may be rebutted by proof satisfactory to the jury." There was no separate, general instruction on circumstantial evidence. After a hearing, the habeas corpus court denied relief and remanded petitioner to the custody of the respondent warden. Petitioner contends that this portion of the charge was violative of due process in that it shifted the burden of proof to him.
The threshold issue is whether petitioner may attack the validity of his confinement by way of habeas corpus on the basis of an allegedly unconstitutional jury charge. This court in Shoemake v. Whitlock, 226 Ga. 771 (177 SE2d 677), reiterated the well-settled principle that habeas corpus cannot be used as a substitute for appeal to correct errors of law. The decision held that even though an allegedly erroneous charge is challenged on due process grounds, the issue is not cognizable in habeas proceedings. It does not necessarily follow, however, that a constitutionally defective charge cannot so pervade the entire proceedings at the trial level as to render the conviction thereunder itself a violation of due process and therefore cognizable in a habeas corpus proceeding under the Habeas Corpus Act of 1967. While making no reference to the Shoemake decision, this court in two subsequent cases reached the merits of due process attacks based on jury charges but upheld the orders remanding the petitioners to custody. Jacobs v. Caldwell, 231 Ga. 600 (203 SE2d 188); Sneed v. Caldwell, 229 Ga. 507 (192 SE2d 263).
In addressing the question of whether an erroneous *249 jury charge can reach constitutional proportions, the U. S. Supreme Court in Cupp v. Naughten, 414 U. S. 141, 146 (94 SC 396, 38 LE2d 368), said: "In determining the effect of this instruction on the validity of respondent's conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U. S. 104, 107 (1926). While this does not mean that an instruction by itself may never rise to the level of constitutional error, see Cool v. United States, 409 U. S. 100 (1972), it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.
"The Court of Appeals [Ninth Circuit] in this case stated that the effect of the instruction was to place the burden on respondent to prove his innocence. But the trial court gave, not once but twice, explicit instructions affirming the presumption of innocence and declaring the obligation of the State to prove guilt beyond a reasonable doubt. The Court of Appeals, recognizing that these other instructions had been given, nevertheless declared that 'there was no instruction so specifically directed to that under attack as can be said to have effected a cure.' 476 F2d, at 847. But we believe this analysis puts the cart before the horse; the question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." The court then held that a charge to the effect that witnesses are presumed to speak the truth did not so impinge upon the principle of reasonable doubt and the presumption of innocence as to render the conviction constitutionally invalid.
It is necessary to determine, therefore, whether the portion of the charge complained of here, even if erroneous, was of such dimension as to render the *250 conviction itself violative of due process.
In the recent decision in Barnes v. United States, 412 U. S. 837 (93 SC 257, 37 LE2d 380), the U. S. Supreme Court upheld a charge which made clear to the jury that recent unexplained possession raised only a permissible inference that the defendant knew the goods had been stolen. The court held that the burden of proving the elements of the crime beyond a reasonable doubt remained on the government. Because the charge satisfied the reasonable doubt standard, there was no violation of due process. The court said, at p. 846, n. 11: "It is true that the practical effect of instructing the jury on the inference arising from unexplained possession of recently stolen property is to shift the burden of going forward with evidence to the defendant. If the Government proves possession and nothing more, this evidence remains unexplained unless the defendant introduces evidence, since ordinarily the Government's evidence will not provide an explanation of his possession consistent with innocence. In Tot v. United States, 319 U. S. 463 [63 SC 1241, 87 LE 1519] (1943), the Court stated that the burden of going forward may not be freely shifted to the defendant. See also Leary v. United States, 395 U. S. 6, 44-45[89 SC 1532, 23 LE2d 57] (1969). Tot held, however, that where there is a `rational connection' between the facts proved and the fact presumed or inferred, it is permissible to shift the burden of going forward to the defendant. Where an inference satisfied the reasonable-doubt standard, as in the present case, there will certainly be a rational connection between the fact presumed or inferred (in this case, knowledge) and the facts the Government must prove in order to shift the burden of going forward (possession of recently stolen property)."
It has long been settled in this state that recent unexplained possession of stolen property permits the jury to infer that the accused committed the theft. See Aiken v. State, 226 Ga. 840 (2) (178 SE2d 202); Gravitt v. State, 114 Ga. 841 (40 SE 1003); Davis v. State, 76 Ga. 16, 17; Lundy v. State, 71 Ga. 360, 361; Daniel v. State, 65 Ga. 199, 200. It should be emphasized that the recent unexplained possession creates only a permissible *251 inference of guilt of a "presumption of fact," in terms of Code § 38-113, which the jury may or may not draw. Lewis v. State, 120 Ga. 508 (48 SE 227); Barber v. State, 61 Ga. App. 578 (2) (6 SE2d 797); Gravitt v. State, supra. Whether the charge is fashioned in the language of "inferences" or "presumptions," the technical import of the charge is the same, especially where the "presumption" is expressly qualified in the charge as one of evidence and not of law. See Gravitt v. State, supra; Griffin v. State, 86 Ga. 257 (12 SE 409); Sellers v. State, 81 Ga. App. 84 (57 SE2d 877); Brown v. State, 74 Ga. App. 98 (3) (38 SE2d 871). Read in the light of the entire charge to the jury, including full charges on reasonable doubt, the state's burden of proof and the presumption of innocence, that portion of the charge complained of here cannot be said to have either reduced the state's burden of proving guilt or shifted to the petitioner the burden of proving his innocence. The charge, taken as a whole, left the burden of persuasion on the state. This is true even though the isolated portion of the charge stated that the presumption "may be rebutted by proof satisfactory to the jury," and may have had the practical effect of shifting to the petitioner the burden of going forward with evidence. See Barnes v. United States, supra; Brown v. State, supra. Language of similar import was upheld by this court in Jacobs v. Caldwell, supra.
This is not to say, however, that this court would, in a proper case, approve the language used in the present charge. Such language has been strongly criticized in decisions of the Court of Appeals as having the possible effect of confusing or misleading the jury. See Hawkins v. State, 80 Ga. App. 496 (1) (56 SE2d 315); Barber v. State, supra; Cook v. State, 49 Ga. App. 86 (174 SE 195). It would unquestionably be better practice to couch the charge in terms of permissible inference instead of presumption. However, for the purposes of this habeas corpus petition, the error committed, if any, in this isolated portion of the charge did not so infect the entire proceedings as to render the resulting conviction void on due process grounds.
Accordingly, the judgment remanding the petitioner to the custody of the respondent warden must be affirmed.
Judgment affirmed. All the Justices concur, except Hall, J., who concurs specially and Gunter and Ingram, *252 JJ., who dissent.
INGRAM, Justice, dissenting.
I do not agree that due process is satisfied by a charge to the jury that unless the defendant satisfactorily explains his recent possession of stolen goods the jury may presume he is guilty of the theft. The possession is but a circumstance. "If it is recent, it is, when unexplained, a very strong circumstance tending to show the guilt of the possessor ..." Gravitt v. State, 114 Ga. 841, 842 (40 SE 1003). But it still is just circumstantial evidence and by itself does not necessarily prove the defendant is guilty.
There was no charge on circumstantial evidence in this case. The jury was told only that the presumption of guilt could be rebutted by proof satisfactory to the jury presented by the defendant. I believe the result of all this was to place the burden of proving he was not guilty on the defendant so that if he offered no explanation of his recent possession, or one the jury thought unsatisfactory for any reason, the jury was duty bound to find him guilty.
This charge goes too far in my judgment and either compromised the burden of proving the guilt of the defendant beyond a reasonable doubt, which the Constitution places on the state, or it left the jury with confusion as to the essential burden in the case. In either event, the error is of constitutional magnitude and, under the Georgia Habeas Corpus Statute, requires a new trial free of this due process difficulty. There is a meaningful difference between a permissible inference and a presumption of guilt which I believe we cannot overlook. I would apply this due process standard to cases involving both the principal theft and those dealing with receiving stolen goods knowing them to have been stolen. See Gaskin v. State, 119 Ga. App. 593 (168 SE2d 183) and its *253 progeny, and particularly the specially concurring opinion of Judge Pannell, beginning at p. 595 of Gaskin.
I am authorized to state that Justice Gunter joins me in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320470/ | 602 P.2d 1046 (1979)
Gene Kevin STARR, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-77-696.
Court of Criminal Appeals of Oklahoma.
November 15, 1979.
Frank Muret, Oklahoma City, for appellant.
Jan Eric Cartwright, Atty. Gen., David W. Lee, Asst. Atty. Gen., Brad Heckenkemper, Legal Intern, for appellee.
*1047 OPINION
CORNISH, Presiding Judge:
Gene Kevin Starr, has appealed his conviction of Uttering a Forged Instrument, After Former Conviction of a Felony, in the District Court of Oklahoma County, Case No. CRF-77-326. His punishment was fixed at thirty-three (33) years in the State penitentiary.
At trial, the State proved that an unknown person broke into the Sunshine Laundry and Swan Towel and Linen Service and stole some checks. It was then shown that the appellant cashed two of the stolen checks at different grocery stores. An Oklahoma City police detective testified that during interrogation the appellant admitted cashing the two checks, introduced into evidence as State's Exhibit No. 1 and 2.
*1048 The appellant raises seven assignments of error. The first is that the trial court erred in admitting evidence of other crimes: The appellant was only charged with forging one of the stolen checks, but evidence of two stolen checks was presented. The trial court allowed introduction of the other check under the common scheme exception to the general rule barring evidence of other crimes.
Concerning the common scheme exception, we said in Atnip v. State, Okl.Cr., 564 P.2d 660 (1977):
"... A common scheme or plan contemplates some relationship or connection between the crimes in question. North v. State, Okl.Cr., 518 P.2d 896 (1974). The word, `common' implies that although there may be various crimes, all said crimes must come under one plan or scheme whereby the facts of one crime tend to establish the other such as where the commission of one crime depends upon or facilitates the commission of the other crime, or where each crime is merely a part of a greater overall plan. In such event, the crimes become connected or related transactions, and proof of one becomes relevant in proving the other. However, evidence of other offenses should never be admitted under this exception when it shows that the accused committed crimes wholly independent of that charged. English v. State, Okl.Cr., 480 P.2d 279 (1971)." (Emphasis added)
Under this rule, it is plain that the evidence concerning the second check should not have been admitted.
Clearly, the evidence of the burglary of the laundry which is not challenged on appeal does fit the common scheme exception. It is apparent that the break-in was part of an overall plan to obtain money: A plan involving both the theft of the checks and the cashing of them. However, the evidence of the other check does not fit within the exception. Proof that the appellant had cashed one check does not tend to prove that he cashed another. In the language of Atnip v. State, supra, the cashing of one check does not depend upon or facilitate the cashing of the other. The probative value of the second check is minimal, and the danger of prejudice in a situation such as this is great.
Nevertheless, the State's case against the appellant was solid. We have no doubt that if there was a second trial with the improper evidence omitted a verdict of guilty would again be returned. We, therefore, will not reverse the conviction. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). However, because the irrelevant evidence may have contributed to the length of the sentence, the error is grounds for modification.
Secondly, the appellant complains that the trial court erred in failing to give a requested instruction on intoxication as a defense. Title 21 O.S. 1971, § 153, provides that voluntary intoxication is not a defense to a criminal act. However, 21 O.S. 1971, § 1592, under which the appellant was convicted, requires the specific intent to defraud. The appellant argues that a suitable instruction should have been given because there was evidence that he was intoxicated and, thereby, unable to form the required intent. The only evidence in this regard, however, was the cashier's statement that at the time he cashed the check the appellant smelled of alcohol and had bloodshot eyes. This is insufficient evidence of intoxication to justify an instruction regarding intoxication and its affect on the ability to form intent. See West v. State, Okl.Cr., 581 P.2d 1318 (1978). The jury was instructed that the element of intent must be proved beyond a reasonable doubt, and that was sufficient under the facts of the case.
During closing argument, the defense attorney stressed the evidence of intoxication and argued that there was doubt about the appellant's intent. Thereafter, the prosecutor stated in the second half of his closing argument that the jury could consider the intoxication "in the punishment stage" of the proceedings. In the appellant's third assignment of error, he claims that the prosecutor's comment was a violation of 22 O.S. 1971, § 860. That section provides that when a person is being *1049 tried for a second or subsequent offense, no mention shall be made of any prior offenses during the first stage of the trial. The prosecutor's comment cannot be read as making any mention of a prior offense. The statute neither permits nor prohibits telling the jury that there will be a further proceeding in which they will assess punishment. We do not believe that the appellant was injured by the comment made.
The fourth assignment of error is that the trial court denied the appellant's request for an in camera hearing before an in court identification was made. In Buchanan v. State, Okl.Cr., 483 P.2d 1180 (1971), we said that under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the trial courts must permit in camera hearings when they are requested to ascertain extrajudicial identification. Such a hearing is required only when there is some reason to believe that the identification may be tainted, as when the right to counsel was violated, or the pretrial identification procedures were unduly suggestive. We further held in Buchanan that in the absence of any evidence of extrajudicial identification, the denial of a defendant's request for an evidentiary hearing is harmless error. In this case, no reason for the in camera hearing was given, and defense counsel failed to raise the subject of how the witness identified the appellant other than at trial. We therefore find this argument to be without foundation.
Next, the appellant alleges that he is entitled to a reversal because there was an unauthorized communication with the jury after they had retired to deliberate. The incident cited as error occurred after the jury had retired to consider a verdict in the section portion of the trial. Following deliberations, the jury called the bailiff and inquired what to do after informing her they had first signed the wrong verdict form and then signed the correct one.
After conferring with the trial judge, the bailiff told the jury foreman to mark the forms void and said new verdict forms would be issued. The judge then conducted a formal proceeding in the presence of both attorneys, in which the bailiff and the judge explained on the record what had transpired. Although it would have been proper under 22 O.S. 1971, § 894, to call the jury back into the courtroom, the trial judge took steps to insure that the appellant was in no way prejudiced by the incident. We find no error requiring reversal.
Sixth, the appellant complains of the prosecutor's closing argument in the second stage of the trial, because he made repeated references to the State's pardon and parole procedures. The State argues that the comments were invited error. In presenting his case during the second stage, the appellant called a character witness who mentioned that he had helped the appellant get paroled.
It is true that an appellant cannot complain of error which he invited by first raising the subject. Luker v. State, Okl.Cr., 504 P.2d 1238 (1972). However, when the situation has required it, we have nevertheless considered the merits of issues, even though they were first broached by the defendant. See, for instance, Goodrich v. State, Okl.Cr., 553 P.2d 219 (1976). A witness' passing comment does not give the District Attorney an unrestricted license to say anything at all. In the present case, the first half of the prosecutor's closing argument is five paragraphs long. In three of those paragraphs he referred to the appellant's parole, and in one other paragraph he talked about the evidence of the other check, which we have already held was improperly admitted. While the guilt of the appellant had already been determined, we think it is probable that the prosecutor's comments led the jury to assess a greater punishment than they might otherwise have done. For that reason we will modify the sentence.
The final assignment of error is a cumulative-error argument. We have found no error necessitating reversal, and, therefore, the appellant's conviction is AFFIRMED; but, because of the errors discussed above, the sentence is MODIFIED from thirty-three (33) years' imprisonment to twenty (20) years' imprisonment.
*1050 BRETT, J., concurs in results.
BUSSEY, concurs in part and dissents in part.
BUSSEY, Judge, concurring in part and dissenting in part.
I would affirm the Judgment and Sentence without modification. I believe that the evidence of the second check was admissible as an exception to the general rule. Compare with Vanderpool v. State, Okl.Cr., 501 P.2d 871 (1971) and Lott v. State, Okl. Cr., 491 P.2d 337 (1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320472/ | 685 S.E.2d 562 (2009)
CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY, Duke University Medical Center, Mission Hospitals, Inc. Moses Cone Health System, North Carolina Baptist Hospital, Wakemed Medical Center, Plaintiffs,
v.
NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, its Division of Medical Assistance, and Carmen Hooker Odom, Mark T. Benton, Carleen Massey, and Geoff Elting in their Official Capacities; Defendants.
No. COA09-9.
Court of Appeals of North Carolina.
November 17, 2009.
*564 Ott Cone & Redpath, P.A., by Thomas E. Cone, Greensboro, for plaintiffs-appellants.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Gerald K. Robbins and Assistant Attorney General Brenda Eaddy, for defendants-appellees.
JACKSON, Judge.
Charlotte-Mecklenburg Hospital Authority; Duke University Medical Center, Mission Hospitals, Inc.; Moses Cone Health System, North Carolina Baptist Hospital; and Wake Medical Center (collectively, "plaintiffs") appeal from a declaratory judgment order granting summary judgment in favor of North Carolina Department of Health and Human Services ("NCDHHS"); its Division of Medical Assistance ("DMA"); and Carmen Hooker Odom, Mark T. Benton, Carleen Massey, and Geoff Elting in their official capacities (collectively, "defendants"). For the reasons set forth below, we affirm.
The material facts of the case sub judice are not in dispute. Plaintiffs operate not-for-profit hospitals in North Carolina and provide medical services to North Carolina Medicaid recipients pursuant to contractual agreements with defendants. Plaintiffs also provide medical services to Medicare recipients pursuant to contractual agreements with the federal Medicare program.
NCDHHS is an administrative agency of the State of North Carolina and is responsible for meeting the human service needs of portions of North Carolina's population. NCDHHS supervises the administration of North Carolina's Medicaid program. DMA is a division of NCDHHS and is responsible for administering the State's Medicaid program.
In 2005, defendants contracted with Health Management Systems, Inc. ("HMS") to identify hospital services which had been billed to and paid for by Medicaid, but for which potential third-party payment sources, including Medicare, also were available.
On 26 October 2005, DMA mailed to plaintiffs lists compiled by HMS of accounts for which Medicaid had been billed and paid, but which were eligible for payment by Medicare. The letters advised plaintiffs to review their records, to submit bills to Medicare, and to send a refund to DMA within sixty days. If plaintiffs failed to bill Medicare or to advise HMS of the reasons for which plaintiffs could not recover payments from Medicare, DMA would recoup funds it had paid through Medicaid that Medicare should have paid or could pay.
Plaintiffs objected to reviewing their records and submitting bills to Medicare as an alternative means of payment for the accounts identified by the HMS lists. On 19 December 2005, plaintiffs filed an action seeking a declaratory judgment to declare defendants' actions to be contrary to law, *565 null, and void. On 30 July 2008 and 31 July 2008, plaintiffs and defendants, respectively, filed motions for summary judgment accompanied by supporting affidavits and discovery. On 17 September 2008, the trial court entered a declaratory judgment order in defendants' favor and granted defendants' motion for summary judgment. From the trial court's order, plaintiffs appeal.
Previously, we have held that "summary judgment is an appropriate procedure in a declaratory judgment action." Montgomery v. Hinton, 45 N.C.App. 271, 273, 262 S.E.2d 697, 698 (1980) (citations omitted). See also Hejl v. Hood, Hargett & Assocs., ___ N.C.App. ___, ___, 674 S.E.2d 425, 427 (2009). In reviewing an order for summary judgment, this Court must make a two-step determination as to whether "(1) the relevant evidence establishes the absence of a genuine issue as to any material fact, and (2) either party is entitled to judgment as a matter of law." Guthrie v. Conroy, 152 N.C.App. 15, 21, 567 S.E.2d 403, 408 (2002) (citing Von Viczay v. Thoms, 140 N.C.App. 737, 738, 538 S.E.2d 629, 630 (2000), aff'd 353 N.C. 445, 545 S.E.2d 210 (2001) (per curiam)). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2007). By submitting cross-motions for summary judgment, the parties have effectively conceded that there is no genuine issue of material fact. See Erie Ins. Exch. v. St. Stephen's Episcopal Church, 153 N.C.App. 709, 711, 570 S.E.2d 763, 765 (2002). Therefore, we need only determine which party is entitled to judgment as a matter of law.
On appeal, plaintiffs argue that the trial court erred in concluding that DMA has the authority to recoup money from hospitals when the underlying Medicaid claims properly had been billed and paid and that the trial court erred in concluding that the hospitals bear the responsibility for pursuing payment from Medicare as a third-party payor after properly accepting Medicaid as payment in full as required by State and federal law. We disagree. Because plaintiffs' arguments require analysis of substantially interrelated rules, we address together both questions presented.
"`[A]n administrative agency is a creature of the statute creating it and has only those powers expressly granted to it or those powers included by necessary implication from the legislature [sic] grant of authority.'" Boston v. N.C. Private Protective Services Bd., 96 N.C.App. 204, 207, 385 S.E.2d 148, 150-51 (1989) (quoting In re Williams, 58 N.C.App. 273, 279, 293 S.E.2d 680, 685 (1982)). In performing its function, the power of an agency to interpret a statute that it administers is limited by the actions of the legislature. See, e.g., Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694, 703 (1984); see also Watson Industries v. Shaw, Comr. of Revenue, 235 N.C. 203, 211, 69 S.E.2d 505, 511 (1952). If the legislature unambiguously expressed its intent in the statute, then the agency administering that statute must give effect to that intent. See N.C. Comm'r of Labor v. Weekley Homes, L.P., 169 N.C.App. 17, 22-23, 609 S.E.2d 407, 412 (2005) (citing Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82, 81 L.Ed.2d at 703). But, if the legislature was silent or ambiguous on the specific issue, then the agency has room to construe the statute. See id. "`Although the interpretation of a statute by an agency created to administer that statute is traditionally accorded some deference by appellate courts, those interpretations are not binding.'" Martin v. N.C. Dep't of Health & Hum. Servs., ___ N.C.App. ___, ___, 670 S.E.2d 629, 632 (2009) (quoting Total Renal Care of N.C., L.L.C. v. N.C. Dep't of Health & Hum. Servs., 171 N.C.App. 734, 740, 615 S.E.2d 81, 85 (2005)). "`The weight of [an administrative agency's] interpretation in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.'" Id. (quoting Total Renal Care of N.C., L.L.C. v. N.C. Dep't of Health & Hum. Servs., 171 N.C.App. 734, 740, 615 S.E.2d 81, 85 (2005)).
*566 Under Medicare Part A, the federal government makes payments to "providers of services" for services provided to Medicare beneficiaries. 42 U.S.C. § 1395f(a) (2000). A "provider of services" is a statutorily defined term that includes hospitals and other specified medical facilities. 42 U.S.C. § 1395x(u) (2000). Section 1395f(a)(1) delegates to the Secretary of Health and Human Services ("the Secretary") the authority to determine who may file claims under such agreements:
Except as provided in subsections (d) and (g) and in section 1395mm ..., payment for services furnished an individual may be made only to providers of services which are eligible therefore under section 1395cc of this title and only if
(1) written request ... is filed for such payment in such form, in such manner, and by such person or persons as the Secretary may by regulation prescribe. ...
42 U.S.C. § 1395f (a)(1) (2000).
Federal regulations promulgated by the Secretary require that all initial claims for payment for medical services pursuant to Part A of the Medicaid program be submitted by the providers of those services. 42 C.F.R. § 424.33 (2005). The Secretary has defined "provider" as follows:
Provider means a hospital, a [critical access hospital], a skilled nursing facility, a comprehensive outpatient rehabilitation facility, a home health agency, or a hospice that has in effect an agreement to participate in Medicare, or a clinic, a rehabilitation agency, or a public health agency that has in effect a similar agreement but only to furnish outpatient physical therapy or speech pathology services, or a community mental health center that has in effect a similar agreement but only to furnish partial hospitalization services.
42 C.F.R. § 400.202 (2005). The requirement applies whether payment is sought in the first instance pursuant to Medicare or whether payment is sought pursuant to Medicare for claims that previously were paid by Medicaid.
At times relevant to the actions in the case sub judice[1], North Carolina General Statutes, section 108A-54 gave NCDHHS broad authority to enact rules, regulations, policies and procedures to effectuate the purpose of the Medicaid program, and to direct how payments are to be made. See N.C. Gen. Stat. § 108A-54 (2005). DMA has been empowered by State regulation to establish "methods and procedures to ensure the integrity of the Medicaid program." 10A N.C. Admin. Code 22F.0101 (2004). The DMA's program integrity section periodically conducts post-payment reviews or audits of claims submitted by Medicaid providers to DMA and reviews payments made to Medicaid providers. See 10A N.C. Admin. Code 22F.0102, .0103, .0105 (2004).
The Social Security Act, the enabling statute for medical assistance programs, mandates that State Medicaid agencies ascertain the liability of third parties and seek reimbursement for such assistance. 42 U.S.C. § 1396a(a)(25)(A),(B) (2000). "Thus, on its face, [the Social Security Act] seeks to protect the Medicaid program from paying for health care in situations where a third party has a legal obligation to pay for the care." Wesley Health Care Ctr., Inc. v. DeBuono, 244 F.3d 280, 284 (2d Cir.2001).
Additionally, federal regulations mandate that each State Medicaid program set up procedures to assess "[t]he legal liability of third parties to pay for services provided under the plan[.]" 42 C.F.R. § 433.135(a) (2005). A third party is broadly defined as "any individual, entity or program that is or may be liable to pay all or part of the expenditures for medical assistance furnished under a State plan." 42 C.F.R. § 433.136 (2005). In North Carolina, the DMA's third party recovery section is responsible for carrying out this requirement. This section's purpose is to ensure that Medicaid covers medical expenses only after all other available medical insurance has been applied and exhausted. This is because Medicaid is a "payor of last resort." Duke Univ. Med. Ctr. v. Bruton, 134 N.C.App. 39, 44, 516 S.E.2d 633, 636 (1999) (quoting Virginia, Inc. v. *567 Kozlowski et al., 42 F.3d 1444, 1448 (4th Cir.1994)).
However, federal regulations also require "state agencies [to] pay the full Medicaid benefits when [p]robable [third-party] liability is not established or benefits are not available at the time the claim is filed." Bruton, 134 N.C.App. at 49, 516 S.E.2d at 639 (citing 42 C.F.R. § 433.139(c)) (internal quotation marks omitted). "`If the probable existence of third party liability cannot be established or third party benefits are not available to pay the recipient's medical expenses at the time the claim is filed, the agency must pay the full amount allowed under the agency's payment schedule.'" Id. (quoting 42 C.F.R. § 433.139(c)).
In the case sub judice, the regulations, by their plain terms, require that any claim for payment under Medicare Part A be submitted by the provider of services. 42 C.F.R. § 424.33 (2005). Other sources within the Medicare statute support this requirement. The statutory section that authorizes the Secretary to establish the claims-filing procedures for Part B services furnished by providers, see 42 U.S.C. § 1395n (2000), is titled "Procedure for payment of claims of provider of services." Id. (emphasis added). This heading reflects Congress's intent that the power to file a claim for payment belongs to the provider and, thus, may be filed only by the provider. See 42 U.S.C. § 1395f(a) (2000); 42 U.S.C. § 1395n (2000); 42 C.F.R. § 400.202 (2005); 42 C.F.R. § 424.33 (2005). Similarly, the statute directs that a Part A payment must be made to the provider, 42 U.S.C. § 1395f (a) (2000), and that such payment may not be made to any other person under an assignment or power of attorney, except in specific circumstances inapplicable to the case sub judice. See 42 U.S.C. § 1395g(c) (2000). Accordingly, the claim must be filed by the provider.
Such regulations are a reasonable interpretation of the Medicare statutes pursuant to an explicit congressional delegation of rule-making authority. See 42 U.S.C. § 1395f(a)(1) (2000) (stating "by such person or persons as the Secretary may by regulation prescribe"). Because the agency's interpretation was "a reasonable and permissible construction of the statute[,]" we give deference to the agency's interpretation. See N.C. Comm'r of Labor, 169 N.C.App. at 22, 609 S.E.2d at 412 (citation omitted).
However, plaintiffs contend that United States Code, Title 42, section 1396a (a)(25)(B), a provision within the Medicaid statutes, overrides the Medicare claims-filing requirements and obligates DMA to file claims with the Secretary upon discovery that Medicare initially should have paid a claim previously paid by DMA. See 42 U.S.C. § 1396a(a)(25)(B) (2000). Section 1396a(a)(25)(B) of the Medicaid statute provides,
in any case where [third-party] legal liability is found to exist after medical assistance [pursuant to the Medicaid statutes] has been made available on behalf of the individual and where the amount of reimbursement the State can reasonably expect to recover exceeds the costs of such recovery, the State or local agency will seek reimbursement for such assistance to the extent of such legal liability[.]
Id.
Plaintiffs' argument is unpersuasive because nothing in this provision suggests that Congress intended to authorize the States to override the claims-filing requirements of Medicare. If Congress had intended this result, we must presume it would have used stronger and more explicit language than "seek reimbursement" to indicate clearly that the State should seek reimbursement directly from the Secretary. Congress could have expressed its intent to override the claims-filing requirements of Medicare and other third parties with explicit language, which it used in other provisions. See 42 U.S.C. § 1395y(b)(2)(B)(vi) (Supp.2004) (authorizing Medicare to recover its conditional payments from a primary employer group health plan within a three year period "[n]otwithstanding any other time limits ... for filing a claim" established by such plan). Congress also could have provided the States with the same independent right of recovery available to the United States under the Medical Care Recovery Act. See 42 U.S.C. § 2651(a) (2000) ("[T]he United States shall have a right to recover (independent of the rights of the *568 injured or diseased person) from said third person, or that person's insurer. ..."). However, no such indication of legislative intent can be found within section 1396a (a)(25)(B).
Furthermore, when viewed in conjunction with similar provisions found elsewhere in the Medicaid statute, section 1396a (a)(25)(B) mandates the conclusion that its concern is not with overriding claims-filing requirements of the Medicare program or other third parties, but rather with ensuring that the rights of Medicaid beneficiaries are subrogated to the States. See 42 U.S.C. § 1396a (a)(25)(B) (2000). In particular, section 1396a (a)(25)(B) must be read in conjunction with section 1396k (a)(1)(A), which requires each Medicaid recipient "to assign the State [his or her] rights" to payment for medical care from a third party as a condition of eligibility for medical assistance under a State Medicaid plan. See also 42 U.S.C. §§ 1396a (a)(25)(H), 1396a (a)(45) (2000). The most logical reading of these two sections is not that they authorize the States to override the claims-filing requirements of Medicare and other third parties, but rather that their provisions merely require the States to "stand in the shoes" of their recipients; that is, to seek reimbursement from liable third parties in accordance with whatever rights the recipients would have had to obtain such reimbursement. See Commonwealth v. Philip Morris, Inc., 942 F.Supp. 690, 695 n. 5 (D.Mass.1996) ("What Title XIX requires is that States take steps to stand in the legal shoes of Medicaid recipients who have valid claims for medical expenses against third parties."). See also Michigan Dep't of Soc. Servs. v. Shalala, 859 F.Supp. 1113, 1121 (W.D.Mich.1994) ("DSS, as subrogee, obtained no greater rights than the beneficiaries, and may obtain reimbursement [from Medicare] only upon timely filed claims.").
The interplay between the Medicare and Medicaid statutes as they apply to dual-eligibles[2] and the applicable regulations make clear that only providers of services can submit Medicare reimbursement claims on behalf of Medicaid recipients later determined to be eligible for Medicare. Since DMA does not meet the statutory or regulatory definition of "provider of services," it cannot submit claims pursuant to Medicare Part A. See 42 U.S.C. § 1395x(u) (2000); 42 C.F.R. § 400.202 (2005).
However, as the Director of the Department of Health & Human Services, Center for Medicaid and State Operations explained in State Medicaid Director Letter # 03-004,
neither the Medicare nor Medicaid statute, nor [D]HHS's regulations or policies prohibit any state from recouping its Medicaid payment from providers in the situation where: ... (2) a ... state (as the beneficiary's subrogee) timely requests the provider to file a claim with Medicare and the provider fails to submit timely a claim to Medicare for the service at issue. ...
State Medicaid Director Letter, # 03-004 (2003). Additionally, the Medicare statute that specifies the contents of provider agreements, states in relevant part that a Medicare provider must agree
not to charge ... any individual or any other person for items or services for which such individual is entitled to have payment made under [Medicare] (or for which he would be so entitled if such provider of services had complied with the procedural and other requirements under or pursuant to [the Medicare statute]).
42 U.S.C. § 1395cc(a)(1)(A) (2000).
Where, as here, a State determines that it has paid for services for which Medicare coverage is available, it can request the provider to submit a claim for payment under Medicare. If the fiscal intermediary approves the claim, the provider then will be obligated pursuant to its Medicare provider agreement to refund the Medicaid payment to the State. See, e.g., Conn. Dep't of Social Servs. v. Leavitt, 428 F.3d 138, 142 (2d Cir. 2005) ("When Medicare covers services already paid for by Medicaid, Medicare pays the provider for the services, and then Medicaid can seek reimbursement from the provider *569 for Medicaid's initial erroneous payment.").
Since DMA is not a "provider of services," it may not file a claim with Medicare. Instead, the statutory and regulatory framework requires that Medicare claims be submitted by the providers of services. Consequently, summary judgment in favor of defendants was appropriate in this matter because defendants proved that an essential element of plaintiffs' claim that DMA must recover third party payment for claims directly from Medicare is not consistent with applicable law. See Guthrie, 152 N.C.App. at 21, 567 S.E.2d at 408.
Plaintiffs also argue that the responsibility for pursuit of third-party payments falls to the State. Plaintiffs and defendants have ratified the "payor of last resort" concept in the contractual agreement these hospitals signed in order to become Medicaid providers in the North Carolina Medicaid program. Specifically, in paragraph A.8 of each provider's Medicaid participation agreement, each plaintiff agreed to "[d]etermine responsibility and bill all appropriate third parties prior to billing the Medicaid Program." The North Carolina State Medicaid Plan sets forth how DMA, in conjunction with assistance from Medicaid providers upon their initial payment request submission to DMA, identifies third-party resources. State regulations allow DMA to recover improper payments as appropriate, 10A N.C. Admin. Code 22F, et seq., and the North Carolina Medicaid Participation Agreement signed by Medicaid providers allows DMA to recover overpayments.
In many instances, as in the case sub judice, the third-party payor does not pay the Medicaid recipient's bill for medical services before DMA applies Medicaid funds to the medical bill. The "payor of last resort" rules require that all other available insurance should be identified, applied, and exhausted before Medicaid's final responsibility for payment for medical services is established. Therefore, it would not be unusual for a Medicaid provider to pay back Medicaid funds it received on a claim to DMA. Plaintiffs' contention that, once plaintiffs are paid, plaintiffs cannot return funds to DMA, is contrary to both federal and State regulation as well as the program integrity mandate.
Accordingly, we hold that the trial court did not err in concluding that DMA has the authority to recoup money from hospitals when the underlying Medicaid claims properly had been billed and paid and that the hospitals bear the responsibility to pursue payment from Medicare as a third-party payor after properly accepting Medicaid as payment in full as required by State and federal law.
Next, plaintiffs contend that the trial court erred in concluding that plaintiffs had neither a constitutional nor a contractual cause of action. We disagree.
Pursuant to United States Code, Title 42, section 1983, an injured party has the power to seek redress for a violation of that party's federal rights by a State or a State agent. 42 U.S.C. § 1983 (2000); Gilbert v. N.C. State Bar, 363 N.C. 70, 80, 678 S.E.2d 602, 608 (2009). Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
42 U.S.C. § 1983 (2000). However, the violation of a federal statute alone does not raise a basis for a section 1983 claim. Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569, 581-82 (1997). The violation of federal law also must implicate a federal right possessed by the appellant. Id. The appellant must satisfy a three-part test to show that a federal statute created a federal right. DeBuono, 244 F.3d at 283.
First, Congress must have intended that the provision in question benefit the [appellant]. Second, the [appellant] must demonstrate that the right assertedly protected by the statute is not so vague and *570 amorphous that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States.
Id. at 283-84 (internal citations and quotation marks omitted).
In the case sub judice, the statute at issue is United States Code, Title 42, sections 1396a (a)(25)(A) and (B). Since section 1396a(a)(25) "does not confer a federal right under 42 U.S.C. § 1983 upon health care providers," plaintiffs do not have a viable federal claim cognizable under Title 42, section 1983 of the United States Code. See DeBuono, 244 F.3d at 283. The purpose of the third-party liability provisions of the Medicaid Act was "to protect the Medicaid program from paying for health care in situations where a third party has a legal obligation to pay for the care." Id. at 284. In the instant case, DMA is attempting to ensure that plaintiffs all Medicare and Medicaid providers comply with their obligations to bill Medicare for appropriate claims. DMA is protecting itself from paying for health care when a third party has a legal obligation to pay. Since plaintiffs do not possess a federal right here, their section 1983 claim fails.
Additionally, there was no taking of a property interest. The Medicaid recipient is required to assign his right to medical insurance proceeds to the State. Bruton, 134 N.C.App. at 48, 516 S.E.2d at 639 (citing 42 U.S.C. § 1396k(a)(1)(A) (2000)). This assignment of rights grants the State an interest superior to that of the provider. DeBuono, 244 F.3d at 285. Thus, plaintiffs have no right to hold DMA to the terms of its contracts under North Carolina law.
Accordingly, we hold that the trial court did not err in concluding that plaintiffs had neither a constitutional nor a contractual cause of action.
Finally, plaintiffs argue that the trial court erred by admitting into evidence an affidavit by Diana Pirozzi and related materials. However, at oral argument, counsel for plaintiffs conceded that the contested evidence does not create a genuine issue of material fact. Accordingly, we do not address the issue on appeal.
For the foregoing reasons, the trial court's declaratory judgment order granting summary judgment in defendants' favor is affirmed.
Affirmed.
Judges McGEE and ERVIN concur.
NOTES
[1] We note that the material portions of the provisions cited remain in effect.
[2] People who are beneficiaries under both Medicare and Medicaid are referred to as "dual eligibles." Bruton, 134 N.C.App. at 43, 516 S.E.2d at 636. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320477/ | 685 S.E.2d 731 (2009)
BRANFORD
v.
The STATE.
No. A09A1191.
Court of Appeals of Georgia.
August 31, 2009.
*732 Zell & Zell, Rodney S. Zell, Atlanta, for Appellant.
Paul L. Howard Jr., Dist. Atty., Marc A. Mallon, Asst. Dist. Atty., for Appellee.
BARNES, Judge.
Dennis Branford appeals his conviction for voluntary manslaughter as a lesser-included offense of malice murder, contending that the evidence was insufficient to sustain his conviction, that the State failed to prove venue, and that the trial court erred in charging the jury on voluntary manslaughter, instructing Branford on his right to testify, and failing to fully charge the jury on the issue of justification. We disagree and affirm.
1. Branford contends that the evidence was insufficient to convict him of voluntary manslaughter beyond a reasonable doubt. On appeal, we view the evidence in the light most favorable to the verdict, and Branford no longer enjoys the presumption of innocence. Furthermore, we neither weigh the evidence nor determine witness credibility but only determine the sufficiency of the evidence under the standard announced in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Grant v. State, 195 Ga.App. 463, 464(1), 393 S.E.2d 737 (1990).
Viewed in the light most favorable to the verdict, the evidence shows Branford and the victim got into an argument when the victim told Branford that he had sex with Branford's wife. Branford walked away, and the two called each other "sissy." The victim *733 ran after Branford and hit him. Branford called the victim a "sissy" a second time, and the victim picked up a rock and hit Branford in the face, knocking him down. While Branford was on the ground, the victim beat him and stole Branford's watch. Branford left the scene, and came back with his hands in his pockets, concealing a screwdriver. The victim hit Branford with a stick, and then with a rake. As the victim went to hit Branford a second time with the rake, Branford caught the rake and stabbed the victim in the neck with the screwdriver. The victim ran off down the street, and Branford chased him until the victim collapsed onto the street and died. A witness heard Branford state, "I didn't go to do that."
"As long as there is some competent evidence ... to support each fact necessary to make out the State's case, the jury's verdict will be upheld." (Citation and punctuation omitted.) Stewart v. State, 291 Ga.App. 846, 847, 663 S.E.2d 278 (2008). The elements of voluntary manslaughter are an intentional killing which was unlawful and prompted by
a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.
OCGA § 16-5-2(a). Thus, after reviewing the evidence in the light most favorable to the jury's determination, we conclude that a rational trier of fact could have found Branford guilty of the crime for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, supra.
2. Branford argues that the trial court erred by giving the State's requested charge on voluntary manslaughter over his objection. A charge on voluntary manslaughter should be given where there is some slight evidence of voluntary manslaughter. Washington v. State, 249 Ga. 728, 730(3), 292 S.E.2d 836 (1982).
Branford contends that the evidence warranted either a finding of murder or self-defense and nothing in between, but we disagree. The fact that Branford claimed self-defense did not preclude a charge on the lesser included crime of voluntary manslaughter. Mullins v. State, 270 Ga.App. 271, 276(4), 605 S.E.2d 913 (2004).
Evidence of voluntary manslaughter may be found in a situation which arouses the sudden passion in the person killing so that, rather than defending himself, he wilfully kills the attacker, albeit without malice aforethought, when it was not necessary for him to do so in order to protect himself.
(Citations and punctuation omitted.) Id. A person is justified in using force only if he reasonably believes that it is necessary to prevent death or great bodily injury to himself. Cameron v. State, 262 Ga.App. 296, 297(1), 585 S.E.2d 209 (2003). "Justification provides no defense, however ... unless the person had effectively withdrawn from the encounter and the other person continued or threatened to continue to use unlawful force." Id. See OCGA § 16-3-21(b)(3).
Branford has, in effect, asked us to re-weigh the evidence to give greater credence to his self-defense justification than did the jury. On appeal, we only determine whether the evidence was legally sufficient to authorize the jury to reject Branford's justification defense and to find him guilty of voluntary manslaughter. Accordingly, the trial court did not err in charging the jury on voluntary manslaughter as there was evidence to support the charge.
3. Branford maintains that his constitutional right to testify in his own defense was violated because the trial court directed him to listen to his attorney's advice rather than making his own decision. This assertion is without merit. "[W]hether or not to testify in one's own defense is considered a tactical decision to be made by the defendant himself after consultation with his trial counsel...." (Citation omitted.) Burton v. State, 263 Ga. 725, 728(6), 438 S.E.2d 83 (1994). Our review in this case shows that the trial court properly established that Branford knew he had the right to testify if *734 he wanted to but elected not to after consulting with his attorney. Thus, Branford's constitutional right to testify in his own defense was not violated.
4. Branford also contends that the State failed to prove beyond a reasonable doubt that the crime for which he was convicted was committed in Fulton County. A criminal action must generally be tried in the county where the crime was committed. Ga. Const. 1983, Art. VI, Sec. II, Par. VI; OCGA § 17-2-2(a). Venue is an essential element of a criminal charge and must be proved by the State beyond a reasonable doubt. Starling v. State, 242 Ga.App. 685, 530 S.E.2d 757 (2000). The State is permitted to establish it by both direct and circumstantial evidence. Jones v. State, 272 Ga. 900, 902-903(3), 537 S.E.2d 80 (2000). On appeal, we determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that Branford was indicted and tried in the county in which the crime was committed. Casey v. State, 231 Ga.App. 701, 702, 500 S.E.2d 613 (1998).
In the present case, both the sole eyewitness and the responding police officer testified that the incident took place in the city of Atlanta, Fulton County. Branford concedes that the evidence showed the fight was instigated in Fulton County, but he contends that the State failed to establish that the victim died on a street located in Fulton County. But the officer testified he responded to a call that a person had been injured and he found the victim lying on the sidewalk around the 840 block of Dill Avenue, which was in Fulton County. This evidence is sufficient to establish venue beyond a reasonable doubt.
5. Branford further enumerates as error that the trial court failed to recharge the jury on the issue of justification in its entirety. Our review of the record reveals that after the trial court charged the jury on justification, among other issues, the jury deliberated and then asked the court to reread the definitions of aggravated assault, voluntary manslaughter, and justification. The trial court complied and defined those three concepts for the jury. Branford contends on appeal that the court committed harmful error in failing to recharge the entire suggested pattern jury charge on justification. "When a jury requests a recharge on a particular point, the trial court has the discretion to recharge in full or only as to the points requested." (Citations and punctuation omitted.) McNeil v. State, 284 Ga. 586, 589(4), 669 S.E.2d 111 (2008). "[O]ur review is limited to determining whether that discretion was abused, taking into account the sensitive nature of the judge's responsibility at this stage of the trial and the duty of the trial judge to provide impartial and effective guidance on the law for the jury to follow in its deliberations." (Citation and punctuation omitted.) Taylor v. State, 169 Ga.App. 842, 844(2), 315 S.E.2d 661 (1984). Furthermore, the Supreme Court of Georgia has held that on recharge, it is not necessary to "cover the subject in toto." Creamer v. State, 229 Ga. 704, 709(4), 194 S.E.2d 73 (1972). Here, the jury asked the court to redefine justification, not to repeat the entire charge on justification. Branford does not contend that the trial court instructed the jury contrary to law in either the original charge or in the recharge given after the jury had begun its deliberations. After reviewing the recharge and the charge as a whole, we conclude that Branford was not prejudiced as a result and the trial court did not abuse its discretion in recharging the jury on justification. Creamer, supra; Taylor, supra.
Judgment affirmed.
MILLER, C.J., and ANDREWS, P.J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320479/ | 685 S.E.2d 367 (2009)
300 Ga. App. 375
PECK
v.
The STATE.
No. A09A1493.
Court of Appeals of Georgia.
October 7, 2009.
*368 Anne L. Watson, Travis A. Williams, for Appellant.
Lee Darragh, Dist. Atty., Wanda L. Vance, Asst. Dist. Atty., for Appellee.
SMITH, Presiding Judge.
Jerry Peck appeals from his conviction for sexual exploitation of a child and distributing obscene material. He contends that insufficient evidence supports his convictions because the State failed to prove venue. He also asserts that the trial court erred by admitting evidence of prior difficulties between himself and the victim, permitting the victim to testify in violation of the privilege against spousal testimony, and denying his motion for a mistrial after allowing improper impeachment evidence. Because the State failed to prove venue, we must reverse this case for a new trial.
1. The State charged Peck with sexual exploitation of children by knowingly possessing and controlling photographs that depicted a 17-year-old minor exposing her breasts and touching a penis. The State also charged Peck with distributing obscene material by giving and disseminating the same photographs to the drug store that developed them. The only evidence of venue presented in this case is the name of the road where the drug store was located and an investigating police officer's testimony that he worked for the Gainesville Police Department. This evidence fails to establish venue in Hall County. Quezada-Barrera v. State, 295 Ga.App. 747, 673 S.E.2d 126 (2009). While we must therefore reverse Peck's convictions,
[w]e note that if a criminal conviction is reversed because of an evidentiary insufficiency concerning the procedural propriety of laying venue within a particular forum, and not because of an evidentiary insufficiency concerning the accused's guilt, retrial is not barred by the Double Jeopardy Clause.
(Citation and punctuation omitted.) McKinney v. State, 294 Ga.App. 366, 370(4), 670 S.E.2d 147 (2008).
Because some of the evidentiary issues raised in this appeal may arise in another trial, we will address them.
2. Peck asserts the trial court erred by admitting evidence of the victim's history of drug use as "prior difficulty evidence."
[E]vidence of prior difficulties between the defendant and the alleged victim must have some probative connection with the incident giving rise to the case being tried, some link of association, something which draws together the preceding and subsequent acts, something which gives color of cause and effect to the transaction, and sheds light upon the motive of the parties.
(Citation and punctuation omitted.) Carr v. State, 267 Ga. 701, 706-707(4), 482 S.E.2d 314 (1997). Peck correctly points out that the victim's history of drug use was not relevant to prove a material issue in dispute and failed to show any prior difficulties between Peck and the victim. As a result, the trial court should not have admitted it as prior difficulty evidence. See id.
3. Peck asserts the trial court erred by concluding that the victim, whom he subsequently married, could be compelled to testify against him in violation of the privilege against spousal testimony embodied in OCGA § 24-9-23. This Code section provides:
(a) Husband and wife shall be competent but shall not be compellable to give *369 evidence in any criminal proceeding for or against each other.
(b) The privilege created by subsection (a) of this Code section or by corresponding privileges in paragraph (1) of Code Section 24-9-21 or subsection (a) of Code Section 24-9-27 shall not apply in proceedings in which the husband or wife is charged with a crime against the person of a minor child, but such person shall be compellable to give evidence only on the specific act for which the defendant is charged.
(Emphasis supplied.) Peck asserts that the crimes with which he was charged do not qualify as crimes "against the person of a minor child" within the meaning of subsection (b).
"In determining the scope of this statutory privilege, we must look diligently for the intention of the General Assembly. OCGA § 1-3-1. Where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden." (Citation and punctuation omitted.) State v. Peters, 213 Ga.App. 352, 354, 444 S.E.2d 609 (1994). We therefore must first examine the offenses with which Peck was charged to determine if they fall within the meaning of "crime against the person of a minor child."
OCGA § 16-12-80 (distributing obscene materials) prohibits a person from disseminating "obscene material of any description" and the definition of obscene material makes no reference to minor. As a result, we cannot construe it as a crime "against the person of a minor child" within the plain meaning of OCGA § 24-9-23(b).
The portion of OCGA § 16-12-100 (sexual exploitation of children) with which the State indicted Peck prohibits knowing possession or control of "any material which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct." OCGA § 16-12-100(b)(8). While this subsection prohibits knowing possession, the material possessed must depict minors engaged in sexually explicit conduct.
"[T]he cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose." (Citations and punctuation omitted.) Hollowell v. Jove, 247 Ga. 678, 681, 279 S.E.2d 430 (1981). In Hamilton v. State, 210 Ga.App. 398, 399(1), 436 S.E.2d 522 (1993), we concluded that "[o]ur legislature has determined that the public policy of protecting this State's children against crimes outweighs the policy of protecting the harmony and unity of marriage."
In this case, the pictures show a minor personally engaged in sexually explicit conduct. Based upon the public policy expressed in OCGA § 24-9-23(b), the particular pictures involved in this case, and the specific subsection of OCGA § 16-12-100 with which Peck was charged, we find that Peck's charge of sexual exploitation of children qualifies as a crime against the person of a minor. Consequently, the trial court did not err by concluding that the victim could be compelled to testify against her husband with regard to that charge.
4. Peck's remaining enumeration of error is rendered moot by our holding in Division 2.
Judgment reversed.
PHIPPS and BERNES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2214770/ | 891 N.E.2d 673 (2008)
WALSH & KELLY, INC.
v.
INTERNATIONAL CONTRACTORS, INC.
No. 64A03-0712-CV-618.
Court of Appeals of Indiana.
July 31, 2008.
RILEY, J.
Disposition of case by unpublished memorandum decision. Affirmed.
BAKER, C.J. Concurs.
ROBB, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2214772/ | 891 N.E.2d 39 (2008)
MADISON STATE HOSP.
v.
FERGUSON.
Supreme Court of Indiana.
February 22, 2008.
Transfer denied. All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320495/ | 215 S.E.2d 168 (1975)
26 N.C. App. 168
Obie G. HILL
v.
David Ray JONES and H. R. Jones Tool & Supply Company.
No. 7518DC180.
Court of Appeals of North Carolina.
June 4, 1975.
*169 Hubert E. Seymour, Jr., Greensboro, for plaintiff.
Henson, Donahue & Elrod by Joseph E. Elrod, III, and Kenneth R. Keller, Greensboro, for defendants.
CLARK, Judge.
G.S. § 6-21.1 provides as follows:
"In any personal injury or property damage suit, . . . instituted in a court of record, where the judgment for recovery of damages is two thousand dollars ($2,000.00) or less, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the litigant obtaining a judgment for damages in said suit, said attorney's fee to be taxed as a part of the court costs."
The statute creates an exception to the general rule that attorney's fees are not allowable as part of the costs in civil actions. City of Charlotte v. McNeely, 281 N.C. 684, 190 S.E.2d 179 (1972). "The obvious purpose of this statute is to provide relief for a person who has sustained injury or property damage in an amount so small *170 that, if he must pay his attorney out of his recovery, he may well conclude that is not economically feasible to bring suit on his claim. . . . This statute, being remedial, should be construed liberally to accomplish the purpose of the Legislature and to bring within it all cases fairly falling within its intended scope." Hicks v. Albertson, 284 N.C. 236, 239, 200 S.E.2d 40, 42, aff'g, 18 N.C.App. 599, 197 S.E.2d 624 (1973).
Under the statute the judge presiding in the court which enters the judgment for recovery "may, in his discretion, allow a reasonable attorney fee." Neither the judge presiding at the first trial nor the Court of Appeals on appeal has authority to allow the fee because no final judgment for recovery has been entered. If the judge presiding in the court where judgment for recovery was entered has no authority to award a reasonable attorney fee for services rendered in the first trial and on appeal to the Court of Appeals, the obvious purpose of the statute would be defeated; the payment by the plaintiff of his attorney out of his recovery of $379.24 for services rendered in the first trial and on appeal would not be "economically feasible". Annot., 18 A.L.R. 3d 1074, 1104 (1968).
Though generalizations are difficult in view of varying state statutory provisions providing for compensation of attorneys, it is generally held that the presiding judge may award compensation for legal services rendered on appeal. See Annot., 18 A.L. R.3d 1074, 1096 (1968).
Where the statute provides for the award of "a reasonable attorney fee" the court has a large measure of discretion in fixing or recommending the amount to be paid. Hicks v. Albertson, supra; Annot., 18 A.L.R. 3d 1074, 1104 (1968).
While it may be inferred that the District Court based its award of the attorney fee on the written motion filed by plaintiff's attorney wherein he requested payment for services rendered in the first trial, on appeal, and in the second trial, expending over thirty hours of time, the judge presiding made no findings of fact upon which the determination of the requisite reasonableness could be based. We have required such findings by the courts in determining reasonable counsel fees in domestic relations cases, Rickenbaker v. Rickenbaker, 21 N.C.App. 276, 204 S.E.2d 198 (1974); Austin v. Austin, 12 N.C.App. 286, 183 S.E.2d 420 (1971), and also in condemnation cases. Redevelopment Comm. v. Weatherman, 23 N.C.App. 136, 208 S.E.2d 412 (1974); Redevelopment Comm. v. Hyder, 20 N.C.App. 241, 201 S.E.2d 236 (1973).
We hold that in awarding reasonable counsel fees under G.S. § 6-21.1, the judge presiding must make some findings of fact to support the award. Since the statute determines the nature of action and limits the amount involved, the findings of fact may be limited to the quantity and quality of all the services rendered by the attorney for his client until the final determination of the action for which the judge presiding, in his discretion, allows an attorney fee. In this case, if the judge presiding in the Guilford County District Court awarded the fee to plaintiff's attorney for his services in the preparation of pleadings, preparation for trial and jury trial at the 17 September 1973 Session of the District, for his preparation of appeal records and brief and his argument on his appeal to the Court of Appeals after the District Court granted defendants' motion for directed verdict, and for preparation for trial and jury trial at the 23 September 1974 Session of District Court, all of which services were skillfully and efficiently performed, then the judge presiding should have made such findings of fact to support the award.
Further, we hold that the judge presiding in the Guilford County District Court may, in his discretion, allow a fee to plaintiff's attorney for his services rendered to his client on this appeal. If so, he should find facts to support the award.
This cause is remanded to the District Court of Guilford County for findings of *171 fact and the award of an attorney fee to plaintiff's attorney consistent with this opinion.
The judgment is
Modified and Remanded.
MARTIN and ARNOLD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320510/ | 685 S.E.2d 711 (2009)
In the Matter of Wade Gunnar ANDERSON.
No. S09Y1594.
Supreme Court of Georgia.
September 28, 2009.
Reconsideration Denied November 9, 2009.
William P. Smith III, General Counsel State Bar, Paula J. Frederick, Assistant General Counsel State Bar, Atlantic, for State Bar of Georgia.
Wilson, Morton & Downs, James E. Spence, Jr., Decatur, for Anderson.
PER CURIAM.
This disciplinary matter is before the Court on the Report and Recommendation of the Review Panel approving the recommendation of the special master, Jefferson C. Callier, that Respondent Wade Gunnar Anderson be given a one-year suspension with conditions for reinstatement for his violations of Rules 1.15(I) and 1.15(II) of the Georgia Rules of Professional Conduct, see Bar Rule 4-102(d). The State Bar filed exceptions to the special master's and Review Panel's report, in which it did not object to the special master's findings of fact and conclusions of law, but objected only to the level of discipline and asked for disbarment, which is the maximum punishment for both violations. Anderson filed an exception to the Review Panel's addition of satisfying the judgment against him as another condition for reinstatement. Both the State Bar and Anderson filed responses in this Court. Under the facts of these underlying cases and Anderson's past disciplinary history, and after consideration of all pleadings filed in this matter, we agree with the State Bar that disbarment is the appropriate sanction.
This matter arises out of State Disciplinary Board Docket numbers 5081, 5084, 5085, 5141 and 5181, plus an additional matter *712 known as the "Moore 2" closing, which was not previously addressed in the filed actions. The parties agreed that all proceedings could be consolidated and the special master and Review Panel each issued one report addressing all of them. The cases arose out of Anderson's handling of his real estate trust account. The following facts were stipulated:
Anderson is a real estate closing attorney approved by First American Title Insurance Company ("FATIC"). In Spring 2005 several of his key employees quit and he assigned to his remaining employee a college student the task of sending wire transfers of funds from the closings. That employee mistakenly double wired funds from a single closing, meaning that the recipients were paid twice, and then the employee quit. As Anderson had no employees left to assist him, FATIC recommended Whatley as a "qualified closing assistant" so he hired Whatley. Within a two-week period, however, Whatley double wired funds on nine separate closings and when questioned about her actions, Whatley quit. As a consequence of the double wires, Anderson's trust account became overdrawn by approximately $2,300,000 and the recipients did not immediately return the mis-wired funds, so numerous other trust account checks began bouncing. As a result, a temporary restraining order was issued and a receiver was appointed to take over Anderson's law practice.
The Moore 2 Closing
This matter arose from Anderson's practice of creating a paper trail by writing a check drawn on the trust account for deposit directly back into the same trust account showing the funds from the closing (FATIC confirmed that this is a recognized practice). Instead of putting the check for the Moore 2 closing in the trust account, however, Whatley added it to the funds for deposit to the operating account and the funds were spent before the mistake was noticed. As Anderson was unable to satisfy obligations due to his trust account being overdrawn, FATIC satisfied some of the debts and now has a judgment against Anderson for $301,128.14.
SDB Docket No. 5081
Here, Anderson conducted a closing for a client and received more in certified funds from his client than was required to conduct the closing, so he gave the client an escrow account check for the difference of $6,289.60. The check was returned for insufficient funds. The client received a full refund after the receiver was appointed.
SDB Docket No. 5084
In this case a client entered into a contract to buy a condominium and paid earnest money that went into Anderson's escrow account. The contract fell through and the parties agreed the earnest money should be returned to the client. By then Anderson had transferred all escrowed funds he held to a new law firm, about which he advised the client, who received her refund from the new firm.
SDB Docket Nos. 5181 and 5085
These matters were based on reports from the Trust Account Notification Program that approximately 63 checks totaling over $76,000 drawn on Anderson's account were presented against insufficient funds. The checks were made good by the receiver.
We agree that in Nos. 5081, 5085 and 5181, Anderson violated Rule 1.15(I), that he violated Rule 1.15(II) in the Moore 2 matter, and that no disciplinary rule was violated in No. 5084.
SDB Docket No. 5141
This matter does not arise from the double wiring of funds. It concerns Bradbary, who owned a penthouse condominium that a buyer Anderson was assisting wanted to purchase. It was alleged that the hot tub in the condo had leaked and caused damage to the building and other units in the building. Bradbary arrived at the closing expecting to receive the full amount of the funds due without deduction for the potential damage as he had a letter from the condo's law firm stating there was no damage claim. Anderson and the buyer had a letter from the same firm stating that the potential damage claim was $75,052.27. With FATIC's advice and consent, the parties agreed that Anderson would act as an escrow agent and withhold funds from Bradbary's proceeds to *713 satisfy the possible damage claim. Anderson drafted an escrow agreement that the parties executed, and the closing was completed. Anderson felt, however, that Bradbary was being dishonest in attempting to close without setting aside funds for the damage claim and he testified that he personally was subject to risk as any damages paid by FATIC could be the source of an action by FATIC against Anderson. Anderson thus worked to resolve the clouds on the title and reduce the amount of the damage claims, and then paid himself $30,000 from the escrowed funds without Bradbary's knowledge or consent. The damage claim ultimately was determined to be $19,452.39, which FATIC paid (and its judgment against Anderson includes this amount). It is unclear what happened to the rest of the escrowed funds. There still should have been $45,052.27 in the account for Bradbary even after Anderson paid himself but those funds have not been accounted for; Anderson states the funds were there when the receiver took over. Bradbary requests return of $55,599.88 ($75,052.27-$19,452.39). Under the escrow agreement he drafted himself, Anderson was not entitled to any of the escrowed funds as fees and it was his duty to safeguard those funds for Bradbary. By this conduct, Anderson violated Rules 1.15(I) and 1.15(II).
We find that the double wiring of funds took place without Anderson's direction or advance knowledge, but although Anderson took steps to remedy the situation, he admits that he failed to adequately supervise his staff and the operation of his practice. The double wiring did not benefit Anderson and he did not receive any proceeds from the double wiring. While we are troubled by Anderson's failure to properly supervise his staff and manage his accounts, we are more troubled by the Bradbary matter as, despite Anderson's explanations, the escrow agreement clearly provides that the agent shall not charge for his services and that in the event of dispute, the disputed funds must be deposited into the court. If Anderson wished to be paid for his services, he should have obtained Bradbary's consent. We find that Anderson acted in bad faith by unilaterally paying himself from the Bradbary funds without consent, see In the Matter of Kunin, 252 Ga. 310, 313 S.E.2d 697 (1984).
Violations of Rules 1.15(I) and 1.15(II) may be punished by disbarment. In aggravation of discipline we note Anderson's two prior Formal Letters of Admonition and we apply Bar Rule 4-103, which allows for disbarment for a third or subsequent disciplinary infraction. Under all the circumstances in this case we find disbarment with conditions prior to petitioning for reinstatement to be an appropriate sanction, see In the Matter of McFarland, 275 Ga. 815, 573 S.E.2d 56 (2002). Accordingly, it hereby is ordered that the name of Wade Gunnar Anderson be removed from the rolls of attorneys authorized to practice law in the State of Georgia. Before he may petition for reinstatement, Anderson must (1) satisfy the judgment in favor of FATIC in the amount of $301,128.14; (2) to the extent not covered by the FATIC judgment, make restitution to Bradbary of $55,599.98 plus interest at the legal rate applicable to liquidated damages from April 11, 2005 through the date of repayment; (3) successfully complete the Law Practice Management Program of the State Bar; and (4) participate in and complete the first Ethics School administered by the State Bar after reinstatement. Anderson is reminded of his duties under Bar Rule 4-219(c).
Disbarred with conditions for reinstatement.
All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320506/ | 685 S.E.2d 369 (2009)
300 Ga. App. 372
JACKSON
v.
The STATE.
No. A09A1399.
Court of Appeals of Georgia.
October 7, 2009.
*370 David C. Butler, Atlanta, for Appellant.
Patrick H. Head, Dist. Atty., John R. Edwards, Asst. Dist. Atty., for Appellee.
SMITH, Presiding Judge.
Andrea Deon Jackson appeals from his convictions for armed robbery, aggravated assault, theft by receiving, and possession of a firearm during the commission of a felony.[1] Jackson contends insufficient evidence supports his armed robbery, aggravated assault, and possession of a firearm by a convicted felon convictions.[2]
Viewed in the light most favorable to the verdict, the record shows that a man entered a convenience store, pointed a gun at the cashier's head, and took approximately $500 to $600 from the cash register. An eyewitness, who also worked in the convenience store, testified that while he did not see the robber's face, a surveillance camera recorded the robbery. The cashier who was robbed did not testify at trial; the eyewitness testified that the cashier may have returned to his home in Pakistan.
A witness who worked at a restaurant across the street from the convenience store testified that he heard a gunshot while he was outside during a break. He turned around and saw someone run out of the store wearing a black hoodie and jump into the passenger seat of a truck. The witness called 911 and told the dispatcher what he had seen.
At the start of a shift change, patrol officers received a dispatch to look for a white truck with a gold or orange stripe that was involved in an armed robbery. A lieutenant saw a truck matching the description as soon as he exited the police department headquarters. When the truck ran through a stop sign, several officers in three patrol cars activated their blue lights and attempted to stop the truck. The truck failed to halt, and the police officers pursued it at high speeds. When the truck lost control and stopped, the lieutenant saw the passenger jump out and run in front of his patrol car. The lieutenant looked at the passenger's face and identified Jackson as the passenger in a photographic lineup and at trial.
Other officers captured the driver, Johnny Andrews, when he also tried to escape. The officers found a black handgun on the driver's side floorboard of the truck. Ballistics testing revealed that the gun matched a shell casing found near the check-out counter of the convenience store. The police were not able to lift any fingerprints from the gun. Andrews "had some matches" to fingerprints lifted from the truck. The eyewitness who called 911 identified the truck driven by Andrews *371 as the one he saw leaving the convenience store.
The police also found several pieces of clothing, including a black baseball cap and a black hooded sweatshirt, near where the truck stopped. Andrews had $224 in his possession. When the police arrested Jackson the next day, they found $326 in his possession.
Based upon a previous tip from a confidential informant about a different armed robbery, the police obtained a search warrant the next day for an apartment occupied by Jackson, his brother, and Andrews. During an interview with Jackson's brother, the police learned that Jackson and Andrews had been driving around in a rental truck that they parked across the street in another apartment complex. The brother also told the police that he received a phone call from Jackson shortly after the time of the robbery, and Jackson told him "that he was running from the police and that he needed to lay low for a little bit." Jackson also told his brother "that he didn't know what had happened to [Andrews], he believed the police may have gotten him." The brother "thought they were just running because the car was probably stolen . . . I thought it was just panic because the car was reported stolen and they didn't have no license, you know."
The brother also told police that Jackson knocked on his window at 4:00 a.m., several hours after the robbery, and later told him "that the police had gotten behind him, that they had gotten [Andrews]. And that at one point when the police were behind him, [Jackson] told [his brother] that he was going to shoot at the police, but [Andrews] had grabbed the gun and ran away."
Andrews pled guilty in a separate proceeding and testified in Jackson's trial that the confidential informant, not Jackson, was the passenger in the truck who went inside the store and robbed the cashier. During cross-examination, Andrews admitted that a few days before he had claimed under oath that he did not know the name of the person who committed the robbery with him. Jackson testified and claimed that he was with his girlfriend (who did not testify) at the time of the robbery.
He contends on appeal that the evidence against him is insufficient because both he and Andrews denied that he was involved in the robbery and assault. We disagree. "The jury was authorized to credit the State's witnesses, and was not required to believe the . . . witness who testified that someone other than [Jackson] committed the crime[]." (Citations omitted.) Wells v. State, 281 Ga. 253, 254(1), 637 S.E.2d 8 (2006). Jackson also asserts, mistakenly, that fingerprints were found on the gun and that these fingerprints belonged to Andrews. The record, however, shows that no fingerprints were found on the gun; Andrews' prints were found only on the stolen truck.
The State presented evidence showing that the passenger in the truck driven by Andrews robbed the store at gunpoint, that Jackson was this passenger, that the gun used in the robbery was found in the truck occupied by Jackson, that the truck occupied by Jackson was used in the robbery, that Jackson told his brother that he and Andrews had run from the police, and that Jackson and Andrews together possessed a sum of money consistent with the amount taken in the robbery. We find this evidence sufficient to support Jackson's armed robbery, aggravated assault, and possession of a firearm by a convicted felon convictions under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
Judgment affirmed.
PHIPPS and BERNES, JJ., concur.
NOTES
[1] The jury acquitted Jackson of possessing cocaine.
[2] After reviewing Jackson's enumerations of error and entire supporting brief we conclude that he is contesting only his armed robbery, aggravated assault, and possession of a firearm by a convicted felon convictions. Because he makes no argument and cites no authority with regard to his conviction for theft by receiving, we will not consider the sufficiency of the evidence to support it. See Court of Appeals Rule 25(c)(2); Mayo v. State, 277 Ga.App. 282, 284(1)(b), 626 S.E.2d 245 (2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1304997/ | 540 P.2d 95 (1975)
Derek Alvin McCALL, Appellant,
v.
The STATE of Nevada, Respondent.
No. 8200.
Supreme Court of Nevada.
September 17, 1975.
Morgan D. Harris, Public Defender, Las Vegas, for appellant.
Robert List, Atty. Gen., Carson City, George E. Holt, Dist. Atty., Las Vegas, for respondent.
OPINION
PER CURIAM:
Convicted of burglary, robbery, second degree kidnapping, rape, and infamous crime against nature, appellant appeals his conviction and an order denying his motion for new trial.
At trial, garments worn by appellant and prosecutrix were admitted without objection into evidence for identification purposes. During deliberations, the jury asked whether they could consider a substance on certain garments as evidence of sexual intercourse, even though it had not been pointed out at trial. The court informed counsel that it proposed to answer this question by instructing the jury: "The garments are in evidence."
Appellant's counsel not only failed to object to this instruction, but agreed to it. The failure to object or to request special instruction to the jury precludes appellate consideration. State v. Fouquette, 67 Nev. 505, 221 P.2d 404 (1950); Clark v. State, 89 Nev. 392, 513 P.2d 1224 (1973); Cook v. State, 77 Nev. 83, 359 P.2d 483 (1961).
*96 Appellant attempts to cast the jury's actions as "misconduct." In light of appellant's agreement to the instruction given by the court, we deem this contention without merit.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4516191/ | FILED
Mar 13 2020, 9:30 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Steven P. Lammers Benjamen W. Murphy
Mandel Horn & Rauch, P.C. Griffith, Indiana
Carmel, Indiana C. Anthony Ashford
Ashford Law Group
Valparaiso, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Staff Source, LLC, March 13, 2020
Appellant-Plaintiff, Court of Appeals Case No.
19A-PL-1569
v. Appeal from the Lake Superior
Court
Christine A. Wallace, Milan The Honorable Calvin D.
Kesic, Slobodan Kesic, The Hawkins, Judge
Resolve Group, LLC, and Trial Court Cause No.
Resolve HR, LLC, 45D02-1804-PL-32
Appellees-Defendants.
Brown, Judge.
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 1 of 29
[1] Staff Source, LLC (“Staff Source”), appeals the trial court’s order granting the
motion for attorney fees filed by Milan Kesic, Slobodan Kesic, the Resolve
Group, LLC, Resolve HR, LLC, and Christine Wallace (collectively,
“Defendants”), and the order finding that Defendants were entitled to a certain
amount of fees. Defendants request appellate attorney fees. We affirm the
orders of the trial court, grant Defendants’ request for appellate attorney fees,
and remand.
Facts and Procedural History
[2] In a letter dated June 20, 2005, Mirko Marich of Staff Source wrote to Christine
Wallace, referenced Wallace’s vast industry experience and proposed an
“Independent Contractor working relationship whereby [she] essentially will
work without any Supervision from the Staff Source office.” Exhibits Volume
II at 83.
[3] In a memo dated June 2, 2006, Christian Flores of Staff Source wrote Wallace,
thanked her for her hard work, and outlined a compensation package including
a base salary and commission. Wallace worked as an employee for about a
year or less until Staff Source moved an internal person into that role.
[4] On June 19, 2007, Staff Source and Wallace signed a document titled
“Employment Agreement” which provided in part:
1. EMPLOYER hereby employs EMPLOYEE in the capacity of
SALES or such other capacity as EMPLOYER shall direct; and
EMPLOYEE hereby accepts such employment upon the terms
and conditions hereinafter set forth.
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 2 of 29
2. The parties jointly acknowledge their relationship as one of
employment-at-will, and that this Agreement does not confer or
infer any rights to continued employment. EMPLOYER or
EMPLOYEE may terminate this relationship at any time with or
without cause.
*****
9. In consideration of the services to be rendered by
EMPLOYEE, EMPLOYER shall pay EMPLOYEE
compensation as set forth in Exhibit A “EMPLOYEE
Compensation” attached hereto and forming a part hereof.[ 1]
This compensation may change or be modified, at the sole
discretion of EMPLOYER, whenever EMPLOYER deems
necessary.
*****
15. The nature of the system and methods in EMPLOYER’s
business is such that EMPLOYEE will be placed in a close
business and personal relationship with the customers of
EMPLOYER and be privy to confidential customer usage and
rate information. Accordingly, during the term of this
Agreement and for a period of one (1) year immediately
following the termination of EMPLOYEE’s employment, for
any cause whatsoever, so long as EMPLOYER continues to
carry on the same business, said EMPLOYEE shall not, for any
reason whatsoever, directly or indirectly, for himself or on behalf
of, or in conjunction with, any other person, persons, company,
partnership, corporation or business entity:
(i) Call upon, divert, influence or solicit or attempt to call
upon, divert, influence or solicit any employee, customer
or customers of EMPLOYER;
1
Wallace testified that Exhibit A was never attached to the Employment Agreement.
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 3 of 29
(ii) Divulge the names and addresses of any information
concerning any customer of EMPLOYER;
(iii) Disclose any information or knowledge relating to
EMPLOYER, including but not limited to,
EMPLOYER’s system or method of conducting business
to any person, persons, firms, corporations or other entities
unaffiliated with EMPLOYER, for any reason or purpose
whatsoever;
(iv) Own, manage, control, be employed by, participate in
or be connected in any manner with the ownership,
management, operation or control of the same, similar or
related line of business as that carried on by EMPLOYER
within a radius of twenty-five (25) miles from
EMPLOYEE’s home office or within a radius equivalent
to EMPLOYEE’s defined territory, whichever is greater.
The time period covered by the covenants contained herein shall
not include any period(s) of violation of any covenant or any
period(s) of time required for litigation to enforce any covenant.
If the provisions set forth in Paragraph 15 are determined by a
court of competent jurisdiction to be too broad to be enforceable,
then the parties agree the area and/or length of time shall be
reduced to such areas and times as the court shall deem
enforceable.
The covenants as set forth in this Paragraph 15 shall be construed
as an agreement independent of any other provision in this
Agreement and the existence of any potential or alleged claim or
cause of action of EMPLOYEE against EMPLOYER, whether
predicted [sic] on this Agreement or otherwise, shall not
constitute a defense to the enforcement by EMPLOYER of the
covenants contained herein. An alleged or actual breach of the
Agreement by EMPLOYER shall not be a defense to
enforcement of the provisions of Paragraph 15.
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 4 of 29
Exhibits Volume II at 12-13 (some capitalization omitted).
[5] Staff Source provided Wallace a 1099 Form listing her nonemployee
compensation for years 2014, 2015, 2016, and 2017.
[6] In April 2017, Wallace became the subject of an IRS audit related to 2015 and
2016 and an issue arose regarding her status as an independent contractor of
Staff Source.
[7] At some point, Staff Source and Wallace signed a document titled “Working
Agreement” which provided in part:
In an effort to formally define the terms of our working
relationship, we submit the following:
Position: Independent Sales Contractor
Regardless of the title used to define your association with Staff
Source, your position will be as an independently contracted
Sales Representative. As such, Staff Source will not be
responsible for payroll deductions, unemployment liability,
workman’s compensation insurance, nor contribute to social
security or Medicare.
Commission:
In consideration of any contracts Staff Source secures as a result
of your sales efforts, Staff Source will pay as a commission the
following . . . .
*****
The relationship hereby established is that of an Independent
Sales Representative. The Representative is neither an employee
of Staff Source nor a legal representative and may not assume
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 5 of 29
any obligation of any kind (without prior approval of Staff
Source), implied or expressed on behalf of Staff Source.
Staff Source will reimburse for pre-approved marketing related
expenses. Also, an auto allowance of $350.00/month and a
$50.00/month mobile phone reimbursement will be paid
monthly for the prior month’s expenses.
Either party may terminate this agreement at any time without
notice.
Id. at 15 (italics omitted). The document listed a handwritten date of June 19,
2007, after the signatures of Kari Marich of Staff Source and Wallace.
According to Wallace, the IRS auditor asked Staff Source to provide
documentation, she signed the document without dating it in 2017 during the
course of the audit, and the dates were subsequently added by Kari. 2
[8] Beginning in December 2016, Wallace began to have issues in her arrangement
with Staff Source under the new ownership of Mirko. In an email from Kari to
Wallace on November 30, 2017, Kari wrote in part: “You’re an independent
contractor and I cannot dictate to you how much time you should spend at the
office.” Id. at 169.
[9] In a letter dated January 5, 2018, Wallace informed Mirko and Kari that day
would be her last as an independent sales contractor for Staff Source. On
2
When Mirko was asked if the testimony that the document was backdated was correct, he answered: “Was
that it was dated, but it was part of the original agreement, but it was dated.” June 6, 2019 Transcript 156.
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 6 of 29
January 23, 2018, Mirko sent Wallace an email which stated she was in breach
of Paragraph 15. Wallace replied stating “per legal counsel consulted prior to
resignation,” the signed contract containing Paragraph 15 was null and void
because she was an independent contractor and not an employee and she would
“not ‘go after’ accounts of Staff Source.” Id. at 187. Mirko responded and
stated he was “well aware of the Independent Contractor status and well aware
of the terms of the Employment Agreement which specifically states you are
‘referred’ to as an ‘EMPLOYEE’.” Id. at 188. He also stated that “neither
document exudes [sic] the terms of the other, rather they collectively address all
the terms.” Id.
[10] On April 9, 2018, Staff Source filed a Complaint for Preliminary and
Permanent Injunction and Damages against Wallace, Milan, Slobodan, and the
Resolve Group, LLC and alleged: Count I, breach of contract; Count II,
violation of the Indiana Uniform Trade Secrets Act; Count III, tortious
interference with a contract; Count IV, tortious interference with business
relationships; Count V, damages arising from civil conspiracy; Count VI, unjust
enrichment; and Count VII, preliminary and permanent injunction.
[11] A letter dated April 13, 2018, from Staff Source’s counsel to Wallace, Milan,
Slobodan, and the Resolve Group, LLC, referred to the June 19, 2007
document titled “Employment Agreement,” Id. at 11, as the “Non-Compete,
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 7 of 29
Non-Solicitation and Confidentiality Agreement.” 3 Id. at 79. The letter stated
in part: “We understand Ms. Wallace will attempt to claim that the Agreement
is unenforceable because she is referred to as ‘employee’ in the Agreement,
however, Ms. Wallace signed the Agreement and agreed to its terms.” Id. It
also asserted that “the fact that Ms. Wallace was an independent sales
contractor for Staff Source does not make the covenants in the Agreement
unenforceable.” Id.
[12] On May 30, 2018, Milan, Slobodan, and the Resolve Group, LLC filed an
answer and requested that Staff Source “be liable for paying said defendants’
attorney fees and costs.” Appellant’s Appendix Volume II at 97. On June 11,
2018, Wallace filed her answer and requested that Staff Source be liable for
paying her attorney fees.
[13] On June 14, 2018, the court granted Staff Source’s motion for leave to file an
amended complaint. On June 15, 2018, Staff Source filed a Motion for
Clarification and to Further Amend Complaint by Interlineation. That same
day, Staff Source filed a Motion to Inspect Wallace’s Laptop Computer and
Smart Phone. On June 19, 2018, the court granted Staff Source’s motion to
further amend the complaint by interlineation. Specifically, the court ordered
that “Plaintiff’s Amended Complaint for Preliminary and Permanent
3
During the direct examination of Wallace, Staff Source’s counsel referred to Paragraph 15 of the
Employment Agreement as the “non-compete, non-solicitation, confidentiality agreement.” July 23, 2018
Transcript at 30.
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 8 of 29
Injunctions and Damages filed June 13, 2018 is hereby AMENDED BY
INTERLINEATION such that Count I of the Amended Complaint includes
the allegation that Defendant, Christine A. Wallace, breached the terms of the
subject Non-Compete, Non-Solicitation and Confidentiality Agreement with
Plaintiff due to her actions with the Resolve Group, LLC and/or Resolve HR,
LLC.” Id. at 180. That same day, the court granted Staff Source’s motion to
inspect Wallace’s computer and phone.
[14] On June 27, 2018, Wallace filed a Motion for Emergency Hearing on Plaintiff’s
Request for Preliminary Injunctive Relief and asserted “Staff Source’s baseless
claims are effectively doing what the alleged Employment Agreement cannot
do: restraining [her] ability to earn a livelihood via frivolous litigation based
upon an alleged Employment Agreement governing an admittedly non-existent
employment relationship.” Id. at 183. That same day, the court granted
Wallace’s motion and scheduled a hearing for July 2, 2018. On June 28, 2018,
Staff Source filed an Emergency Motion to Continue July 2, 2018 Hearing and
to Compel Discovery Responses and to Compel Defendant Wallace’s
Cooperation with Inspection and Copying of her Smart Phone and Laptop
Computer. On July 2, 2018, the court entered an order continuing the July 2,
2018 hearing and compelling Wallace’s cooperation with the June 19, 2018
order.
[15] Meanwhile, on June 29, 2018, Milan, Slobodan, and the Resolve Group filed
an answer to Staff Source’s amended complaint. They requested that Staff
Source “be liable for paying said defendants’ attorney fees and costs.” Id. at
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 9 of 29
222. On July 10, 2018, Wallace filed an answer to Staff Source’s amended
complaint for preliminary and permanent injunction and damages and
requested that Staff Source be ordered to pay her attorney fees.
[16] On July 11, 2018, the court entered an agreed scheduling order which set a
hearing on Staff Source’s claims for injunctive relief for July 23, 2018. On July
16, 2018, Staff Source filed an Injunction Hearing Brief. That same day, Milan,
Slobodan, the Resolve Group, LLC, and Resolve HR, LLC, filed a Pre-Hearing
Brief Respecting Plaintiff’s Requests for Injunctive Relief.
[17] On July 23, 2018, the court held a hearing. Wallace indicated she had twenty-
five years of experience in the staffing business before becoming an independent
contractor with Staff Source in 2005, she began a partial salaried employment
position with Staff Source in June 2006 that involved managing employees, she
returned to being an independent contractor, and she did not receive additional
compensation with respect to entering into the Employment Agreement. She
stated she began having issues in her contractor arrangement with Staff Source
in 2016. When asked if she took any property from Staff Source from the time
she decided she was leaving until the time she left, she answered, “Absolutely
not.” July 23, 2018 Transcript at 84. When asked about Exhibit EE, a prospect
list, she stated she obtained the information for the prospect list by phone or by
research or possibly by the leads that may have been given to her by the
recruiters. With respect to Exhibit FF, a prospect list, she ensured she had not
received a commission for any of the prospects listed before sending the
prospect email. She testified that when she began working with Resolve HR,
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 10 of 29
she, Milan, and Dan 4 worked together to ensure she was not “going after actual
clients that [she] worked with Staff Source” as a matter of professional courtesy.
Id. at 86.
[18] The court admitted her non-employee compensation 1099 forms for years 2014
through 2017. Wallace testified that she never received a W-2 as an employee
at any point from 2014 through 2017. With respect to the June 19, 2007
Employment Agreement, Wallace testified that she did not become an
employee following the agreement, she never received an Exhibit A referenced
in the agreement, she was not an employee in 2017, 2016, 2015, or 2014, and
had not been an employee since 2006.
[19] At the end of the hearing, Staff Source’s counsel stated that Staff Source agreed
to dismiss Count VII with prejudice and intended to proceed to a jury trial on
the remaining counts. That same day, the court granted the dismissal of Count
VII of Staff Source’s complaint with prejudice.
[20] On July 30, 2018, the court entered a case management order providing that all
discovery be completed by January 8, 2019, all dispositive motions be filed by
February 8, 2019, and scheduling a jury trial for May 20, 2019 as the primary
date and April 8, 2019 as the secondary date. 5
4
On appeal, Staff Source refers to Slobodan as Dan.
5
The court’s order states: “This matter is set for JURY trial as follows: 2nd – APRIL 8, 2019; PRIMARY –
MAY 20, 2019 at 8:30 a.m.” Appellant’s Appendix Volume III at 48.
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 11 of 29
[21] In February 2019, Staff Source’s counsel emailed Defendants’ counsel a
proposed stipulation and order of dismissal. Defendants’ counsel returned the
stipulation after deleting a sentence that stated each party would bear their own
attorney fees.
[22] On March 4, 2019, Staff Source filed a “Trial Rule 41(A) Stipulation to
Voluntary Dismissal of Plaintiffs’ Claims, With Prejudice” asserting that all
parties “stipulate and agree to the Plaintiff’s voluntary DISMISSAL of ALL of
its claims against all Defendants, WITH PREJUDICE.” Appellant’s Appendix
Volume III at 49 (some capitalization omitted). On March 5, 2019, the court
entered an order dismissing Staff Source’s claims against Defendants with
prejudice.
[23] On May 6, 2019, Defendants filed a joint motion for attorney fees pursuant to
Ind. Code § 34-52-1-1. On May 8, 2019, Staff Source filed a response. On May
30, 2019, Defendants filed a reply which was struck as untimely.
[24] On June 6, 2019, the court held a hearing on the motion for attorney fees. After
some discussion, the court stated that “[i]t was obvious that Ms. Wallace was
not an employee.” June 6, 2019 Transcript at 122. The court went on to hear
testimony.
[25] On June 10, 2019, the court entered an order granting the motion for attorney
fees. Specifically, the court stated:
As a preliminary matter, the Court finds that because all of
Plaintiff’s claims were dismissed with prejudice, Defendants were
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 12 of 29
the prevailing parties pursuant to I.C. 34-52-1-1(b). See Northlake
Nursing & Rehab. Ctr., L.L.C. v. Ind. Dep’t of Health, 34 N.E.3d 268,
274 (Ind. Ct. App. 2015) (a dismissal with prejudice is a dismissal
and judgment on the merits); See also Ilagan v. McAbee, 634
N.E.2d 827, 829 (Ind. Ct. App. 1994) (a voluntary dismissal with
prejudice operates as a common law retraxit, wherein the plaintiff
openly and voluntarily renounces its suit court; such a dismissal
is “on the merits”, is conclusive of the rights of the parties; and
operates as res judicata to all issues that could have been litigated);
See also D.S.I. v. Natare Corp., 742 N.E.2d 15[] (Ind. Ct. App.
2000) (A party may be construed as prevailing for purposes of
I.C. 34-52-1-1(b), under an agreed entry or stipulation, so long as
it resolved the dispute generally in the favor of the one requesting
attorney fees and altered the litigants’ legal relationship in a way
favorable to the requesting party)[, reh’g denied, trans. denied].
This Court further finds that Defendants’ Joint Motion was
timely made, as a claim for attorney fees under I.C. 34-52-1-1
does not accrue until the party “prevails”, and Indiana Courts
have consistently held that the “standard procedure” for seeking
attorney fees is to petition the court after the case is resolved on
its merits. Storch v. Provision Living, LLC, 47 N.E.3d 1270, 1275
(Ind. Ct. App. 2015[]) Furthermore, the Supreme Court has held
that there is no strict time limit for filing a request for fees after
judgment, although it is “in some sense an equitable petition, and
it might be that an extremely tardy request should fall on deaf
ears due to lack of notice or staleness.” R.L. Turner Corp. v. Town
of Brownsburg, 963 N.E.2d 453 (Ind. 2012). Notably, Plaintiff has
offered no explanation of any prejudice incurred by Defendants’
filing the Joint Motion 60 days after Dismissal opposed to say 45
days after Dismissal.
Plaintiff suggests that perhaps it would not have dismissed its
case at all had it realized Defendants intended to seek attorney
fees following dismissal. However, Defendants’ response to such
suggestion is well-taken. Plaintiff sought to dismiss all of its
claims on the eve of the jury trial setting, with prejudice.
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 13 of 29
Assuming that the claims were groundless and/or frivolous,
which is required for an award of attorney fees, should the
Defendants have refused the offer and demanded that the jury
trial over such claims be had? Here, the Defendants were in a
position to mitigate the damages caused by a purported
groundless and/or frivolous lawsuit by stipulating to the
dismissal with prejudice of all claims, while refusing to agree that
the parties would pay their own attorney fees. It is undisputed
that Plaintiff originally requested the stipulation provide that the
parties would pay their own attorney fees, and that Defendants
refused to agree to that provision, and it was removed.
Furthermore, there were no settlement agreements or releases
requested or negotiated prior to dismissal. Moreover, the
suggestion that Plaintiff was prejudiced because it may have
persisted with its purportedly groundless and/or frivolous claims
to trial is equally unavailing. Accordingly, Joint Motion was
timely and properly made.
Defendants’ Entitlement to Attorney Fees Based Upon a
Groundless and Frivolous Complaint
Defendants presented evidence and testimony to support its
claim for attorney fees. By stipulation of the parties, certain
exhibits from the Injunction Hearing were again admitted into
evidence on Defendants’ Joint Motion. The testimony, as well as
documentary evidence established the following facts:
*****
15. Accordingly, all of Plaintiff[’]s claims based upon the
purported breach of the Employment were groundless as “no
facts exist which support the legal claim relied on and presented
by the losing party”, Plaintiff. See Kahn v. Cundiff, 533 N.E.2d
164, 170 (Ind. Ct. App. 1989), summarily aff’d by 543 N.E.2d 627
(Ind. 1989).
16. Furthermore, Plaintiff attempted to breath[e] life into its
groundless claims by making material misrepresentations of fact
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 14 of 29
and fabricating an exhibit to the Complaint. Although the
“Working Agreement” was admittingly signed by Wallace in
2017 after an audit, Plaintiff admittingly backdated the document
ten years earlier to June of 2007, for the sole purpose of claiming
that the Employment Agreement and the independent contractor
“Working Agreement” were part of the same contract. Plaintiff’s
counsel continued to argue the same at the Injunction Hearing
and even at the hearing on Defendants’ Joint Motion.
Accordingly, Plaintiff[’]s Complaint was not only groundless, but
also fraudulent.
17. Moreover, Plaintiff’s claims were frivolous as it appears that
they were made “primarily for the purpose of harassing or
maliciously injuring” Wallace, as follows:
a. Plaintiff is in the staffing business, and despite their
attempts to muddy the same, its principals were well-
aware of the difference between an employment and
independent contractor relationship. In fact, their industry
is based upon that difference.
b. Prior to her resignation, the principals of Plaintiff
readily acknowledged Wallace status as independent
contractor.
c. Several [m]onths prior to filing its lawsuit, Wallace
made clear to Plaintiff’s principals that the Employment
Contract was “null and void” because she was an
independent contractor, however, she would avoid
personally “going after” Plaintiff’s customers as a
courtesy.
d. Despite the same, and even after acknowledging his
understanding that Wallace was an independent
contractor, Mirko Marich threatened “severe financial
consequences” if she continued to do business with his
former business partners.
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 15 of 29
e. Plaintiff filed a seven-count Complaint against
defendants on April 12, 2018, and thereafter, sent
defendants a “Cease and Desist” letter, essentially
demanding that Wallace immediately be removed from
her position with Resolve Group. However, the “Cease
and Desist Letter” also conspicuously includes a footnote
stating “We understand that Ms. Wallace will attempt to
claim that the Agreement is unenforceable because she is
referred to as an [‘]employee[’] in the Agreement,
however, Ms. Wallace signed the Agreement and agreed
to its terms”.
f. In response to the “Cease and Desist Letter”, counsel for
Defendants advised counsel for Plaintiff, in writing, that
all defendants disputed the enforceability of the terms of
the Employment Agreement, as Wallace had been
removed from her employment position with Plaintiff
prior to 2008, and remained an independent contractor for
Plaintiff for ten years prior to moving on with her career.
g. During the Injunction Hearing, this Court made clear
that Employment Agreement was conditioned upon an
employment relationship, and therefore the Covenants
could not extend more than one year following the end of
the employment relationship between Plaintiff and
Wallace.
h. Accordingly, Plaintiff dismissed the claim for injunctive
relief but refused the request of Wallace’s attorney to
dismiss the claim for breach of contract, and the case was
set for a jury trial.
i. On February 19, 2019, less than two months prior to the
trial setting, Plaintiff’s counsel sent an email finally
offering to dismiss all claims with prejudice.
j. Only after Defendants filed their Joint Motion did
Plaintiff finally identify what it claimed to be “protected
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 16 of 29
trade secrets” that were purportedly misappropriated by
Wallace. At [the] hearing, the evidence showed that there
was no factual basis for the misappropriation of trade
secret claim, either, The “Prospect List” was nothing more
than a list of potential customers, compiled and prepared
by Wallace as an independent contractor of Plaintiff on
her home computer and thereafter emailed to Plaintiff in
order to invite those “prospects” to an open house. Not
only was there no basis to the claim that this was a
“protected trade secret”, the document was
unquestionably Wallace’s own work product for which she
was never paid by Plaintiff.
18. In the interim, all Defendants were forced to retain counsel to
defend against a groundless seven-count, seventeen page
Complaint; to cooperate with intrusive discovery that included
turning over and forensically copying the contents of Wallace’s
private laptop and cell phone; and to appear for hearing and
defend against Plaintiff[’]s groundless claims for injunctive relief.
19. Furthermore, this Court has been compelled to waste
valuable judicial time and resources dealing with Plaintiff[’]s
claims, which were clearly groundless and frivolous at their
filing.
20. While this Court is hesitant to award attorney fees pursuant
to 34-52-1-1(b), this is precisely the type of situation that calls for
an award of attorney fees, as Defendants were forced to defend
against a seven-count Complaint that was entirely groundless,
frivolous and even fraudulent at its inception. See Charles Downey
Family Ltd. P’ship v. S & V Liquor, Inc., 880 N.E.2d 322, 328-329
(Ind. Ct. App. 2008)[, trans. denied].
Conclusions of Law and Order
After weighing the evidence presented to this Court at hearing,
Defendants have established their burden of proof that
Plaintiff[’]s Complaint and all of its corresponding claims were
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 17 of 29
both groundless and frivolous, and this Court hereby Orders that
Defendants shall be entitled to an award of reasonable attorney
fees. Defendants shall have up to and including July 1, 2019 to
provide this Court with a factual basis for the amount of attorney
fees and costs claimed.
Appellant’s Appendix Volume III at 158-165 (some bold and underlining
omitted).
[26] On August 21, 2019, the court held a hearing. That same day, the court entered
an order finding that Milan, Slobodan, the Resolve Group, LLC, and Resolve
HR, LLC were entitled to an award of attorney fees and costs in the amount of
$51,135, and Wallace was entitled to an award of attorney fees and costs in the
amount of $25,128.38.
Discussion
I.
[27] The first issue is whether the trial court abused its discretion in ordering Staff
Source to pay Defendants’ attorney fees. Ind. Code § 34-52-1-1 provides:
(a) In all civil actions, the party recovering judgment shall
recover costs, except in those cases in which a different provision
is made by law.
(b) In any civil action, the court may award attorney’s fees as part
of the cost to the prevailing party, if the court finds that either
party:
(1) brought the action or defense on a claim or defense that
is frivolous, unreasonable, or groundless;
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 18 of 29
(2) continued to litigate the action or defense after the
party’s claim or defense clearly became frivolous,
unreasonable, or groundless; or
(3) litigated the action in bad faith.
(c) The award of fees under subsection (b) does not prevent a
prevailing party from bringing an action against another party for
abuse of process arising in any part on the same facts. However,
the prevailing party may not recover the same attorney’s fees
twice.
[28] In discussing a prior version of the statute, the Indiana Supreme Court stated
that the statute “strikes a balance between respect for an attorney’s duty of
zealous advocacy and ‘the important policy of discouraging unnecessary and
unwarranted litigation.’” 6 Mitchell v. Mitchell, 695 N.E.2d 920, 924 (Ind. 1998)
(quoting Kahn v. Cundiff, 533 N.E.2d 164, 170 (Ind. Ct. App. 1989), adopted by
543 N.E.2d 627, 629 (Ind. 1989)). “Subsections (b)(1) and (b)(2) of the statute
focus on the legal and factual basis of the claim or defense and the arguments
supporting the claim or defense.” Id. “In contrast, subsection (b)(3) – ‘litigated
the action in bad faith’ – by its terms requires scrutiny of the motive or purpose
of the non-prevailing party.” Id. The Indiana Supreme Court held:
6
The Court was examining Ind. Code § 34-1-32-1, which similarly provided:
(b) In any civil action, the court may award attorney’s fees as part of the cost to the
prevailing party, if it finds that either party:
(1) brought the action or defense on a claim or defense that is frivolous,
unreasonable, or groundless;
(2) continued to litigate the action or defense after the party’s claim or
defense clearly became frivolous, unreasonable, or groundless; or
(3) litigated the action in bad faith.
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 19 of 29
More precisely,
bad faith is not simply bad judgment or negligence.
Rather, it implies the conscious doing of a wrong because
of dishonest purpose or moral obliquity. It is different
from the negative idea of negligence in that it contemplates
a state of mind affirmatively operating with furtive design
or ill will.
Id. (quoting Watson v. Thibodeau, 559 N.E.2d 1205, 1211 (Ind. Ct. App. 1990)
(quoting Young v. Williamson, 497 N.E.2d 612, 617 (Ind. Ct. App. 1986), reh’g
denied, trans. denied)). The Court also explained:
This Court has observed in related contexts that the legal process
“must invite, not inhibit, the presentation of new and creative
argument” to enable the law to grow and evolve. Orr v. Turco
Mfg. Co., 512 N.E.2d 151, 153 (Ind. 1987) (setting forth standard
for punitive sanctions for frivolous appellate claims). To be sure,
application of the statutory authorization for recovery of
attorney’s fees . . . must leave breathing room for zealous
advocacy and access to the courts to vindicate rights. Kahn, 533
N.E.2d at 170. Courts must be sensitive to these considerations
and view claims of “frivolous, unreasonable, or groundless”
claims or defenses with suspicion.
Id. at 925.
[29] Ind. Code § 34-52-1-1(b) “places an obligation on litigants to investigate the
legal and factual basis of the claim when filing and to continuously evaluate the
merits of claims and defenses asserted throughout litigation.” Landmark Legacy,
LP v. Runkle, 81 N.E.3d 1107, 1116-1117 (Ind. Ct. App. 2017) (quoting Gen.
Collections, Inc. v. Decker, 545 N.E.2d 18, 20 (Ind. Ct. App. 1989)). “A claim is
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 20 of 29
‘frivolous’ if it is made primarily to harass or maliciously injure another; if
counsel is unable to make a good faith and rational argument on the merits of
the action; or if counsel is unable to support the action by a good faith and
rational argument for extension, modification, or reversal of existing law.”
Kitchell v. Franklin, 26 N.E.3d 1050, 1057 (Ind. Ct. App. 2015) (citing Wagler v.
W. Boggs Sewer Dist., Inc., 980 N.E.2d 363, 383 (Ind. Ct. App. 2012), reh’g denied,
trans. denied, cert. denied, 571 U.S. 1131, 134 S. Ct. 952 (2014)), trans. denied. “A
claim is ‘unreasonable’ if, based on the totality of the circumstances, including
the law and facts known at the time, no reasonable attorney would consider the
claim justified or worthy of litigation.” Id. “A claim is groundless if no facts
exist which support the legal claim relied on and presented by the losing party.”
Purcell v. Old Nat. Bank, 972 N.E.2d 835, 843 (Ind. 2012). “However, the law is
settled that a claim is neither groundless nor frivolous merely because a party
loses on the merits.” Kitchell, 26 N.E.3d at 1057. “Bad faith is demonstrated
where the party presenting the claim is affirmatively operating with furtive
design or ill will.” Id.
[30] “The trial court’s decision to award attorney’s fees under § 34-52-1-1 is subject
to a multi-level review: the trial court’s findings of facts are reviewed under the
clearly erroneous standard and legal conclusions regarding whether the
litigant’s claim was frivolous, unreasonable, or groundless are reviewed de
novo.” Purcell, 972 N.E.2d at 843 (citing R.L. Turner Corp. v. Town of
Brownsburg, 963 N.E.2d 453, 457 (Ind. 2012)). “[T]he trial court’s decision to
award attorney’s fees and any amount thereof is reviewed for an abuse of
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discretion.” Id. “A trial court abuses its discretion if its decision clearly
contravenes the logic and effect of the facts and circumstances or if the trial
court has misinterpreted the law.” Id. “Covenants not to compete are in
restraint of trade and are not favored by the law.” Harvest Ins. Agency, Inc. v.
Inter-Ocean Ins. Co., 492 N.E.2d 686, 688 (Ind. 1986). “They are strictly
construed against the covenantee and enforced only if reasonable.” Id.
[31] To the extent Staff Source argues that the court adopted Defendants’ proposed
findings and conclusions wholesale, we observe that “[w]hen a trial court
accepts verbatim a party’s proposed findings of fact and conclusions thereon,
that practice ‘weakens our confidence as an appellate court that the findings are
the result of considered judgment by the trial court.’” Cty. of Lake v. Pahl, 28
N.E.3d 1092, 1100 (Ind. Ct. App. 2015) (quoting In re Marriage of Nickels, 834
N.E.2d 1091, 1096 (Ind. Ct. App. 2005) (quoting Cook v. Whitsell-Sherman, 796
N.E.2d 271, 273 n.1 (Ind. 2003))), reh’g denied, trans. denied. It is not
uncommon or per se improper for a trial court to enter findings that are
verbatim reproductions of submissions by the prevailing party. Id. Although
we by no means encourage the wholesale adoption of a party’s proposed
findings and conclusions, the critical inquiry is whether such findings, as
adopted by the court, are clearly erroneous. Id. We also note, while Staff
Source asserts that the trial court entered its August 21, 2019 order verbatim
from Defendants’ counsel, the two documents are not identical. The proposed
order in the Appellant’s Appendix differs from the court’s order in some
respects including that the proposed order requested fees of $52,560 and
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$27,103.38 and the court’s order awarded fees in the amount of $51,135 and
$25,128.38. See Appellant’s Appendix Volume III at 204-208.
[32] Staff Source argues that: (A) Defendants were not prevailing parties; (B) it was
unfairly prejudiced by Defendants’ motion for attorney fees filed sixty-two days
after dismissal; (C) its claims were not frivolous, unreasonable, or groundless;
and (D) Defendants presented insufficient evidence regarding their fees. 7
A. Prevailing Parties
[33] In D.S.I. v. Natare Corp., 742 N.E.2d 15, 24 (Ind. Ct. App. 2000), reh’g denied,
trans. denied, the Court held that “a party is a ‘prevailing party’ within the
meaning of IC § 34-52-1-1, if that party successfully prosecutes its claim or
asserts its defense,” “the requisite successful litigation must culminate in a
judgment,” and “the judgment . . . may take the form of an agreed entry or
stipulation, so long as it resolved the dispute generally in the favor of the one
requesting attorney fees and altered the litigants’ legal relationship in a way
favorable to the requesting party.”
[34] The record reveals the parties’ attorneys filed a stipulation to dismiss Staff
Source’s claims with prejudice, and the court entered an order approving the
dismissal and dismissing the claims with prejudice. “We have held that ‘a
7
Staff Source argues that the trial court improperly considered caselaw cited in Defendants’ May 30, 2019
Reply that was struck by the court for being untimely. Staff Source cites McGill v. Ling, 801 N.E.2d 678, 683
(Ind. Ct. App. 2004), reh’g denied, trans. denied, which stated that “practitioners of the law know the effect of a
trial court’s decision to grant [a motion to strike]: any materials stricken, whether arguments or evidence, will
not be considered by either the trial court or this court on appeal.” We cannot say McGill precludes a trial
court from considering caselaw merely because it was included in a brief which was struck by the court.
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 23 of 29
dismissal with prejudice constitutes a dismissal on the merits and is therefore
conclusive of the rights of the parties and res judicata as to the questions that
might have been litigated.’” Northlake Nursing & Rehab. Ctr., L.L.C. v. State Dep’t
of Health, 34 N.E.3d 268, 274 (Ind. Ct. App. 2015) (quoting Baker & Daniels, LLP
v. Coachmen Indus., Inc., 924 N.E.2d 130, 135 n.5 (Ind. Ct. App. 2010), trans.
denied; and citing Ilagan v. McAbee, 634 N.E.2d 827, 829 (Ind. Ct. App. 1994)).
The dismissal with prejudice in this case was a judgment on the merits and
resolved the dispute generally in favor of Defendants and altered the litigants’
legal relationship in a way favorable to Defendants. We conclude under the
circumstances of this case that Defendants are prevailing parties. 8 See id.
(“Consequently, the dismissal with prejudice was a judgment rendered on the
merits.”); Kahn v. Cundiff, 543 N.E.2d 627, 629 (Ind. 1989) (affirming the grant
of attorney fees under Ind. Code § 34-1-32-1 after the plaintiff moved to dismiss
the case).
B. Prejudice
[35] Staff Source argues it was unfairly prejudiced by Defendants’ petition for
attorney fees filed sixty-two days after dismissal because there was not sufficient
notice by Defendants to seek fees.
8
To the extent Staff Source cites Reuille v. E.E. Brandenberger Const., Inc., 888 N.E.2d 770 (Ind. 2008), we note
that Reuille did not address Ind. Code § 34-52-1-1, but addressed an issue of contract interpretation.
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 24 of 29
[36] “[T]rial courts must use their discretion to prevent unfairness to parties facing
petitions for fees.” R.L. Turner Corp., 963 N.E.2d at 460. “A request for
attorneys’ fees almost by definition is not ripe for consideration until after the
main event reaches an end.” Id. “Entertaining such petitions post-judgment is
virtually the norm.” Id. “To be sure, a request for fees is in some sense an
equitable petition, and it might be that an extremely tardy request should fall on
deaf ears due to lack of notice or staleness.” Id.
[37] In their May 30, 2018 answer and June 29, 2018 answer to the amended
complaint, Milan, Slobodan, and the Resolve Group requested that Staff Source
be liable for paying their attorney fees. In Wallace’s June 11, 2018 answer, she
requested that Staff Source be liable for paying her attorney fees. In her July 10,
2018 answer to the amended complaint, Wallace again requested that Staff
Source be ordered to pay her attorney fees. In Wallace’s June 27, 2018 motion
for emergency hearing, she asserted “Staff Source’s baseless claims are
effectively doing what the alleged Employment Agreement cannot do:
restraining [her] ability to earn a livelihood via frivolous litigation based upon
an alleged Employment Agreement governing an admittedly non-existent
employment relationship.” Appellant’s Appendix Volume II at 183. Staff
Source states Defendants’ counsel returned the stipulation dismissing the case
and deleted a sentence stating that each party would bear the party’s own
attorneys’ fees. Under these circumstances, we cannot say Defendants’ petition
for attorney fees came as a shock to Staff Source. See R.L. Turner Corp., 963
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N.E.2d at 460 (holding that, in light of the record, “the Town’s renewed
petition for attorneys’ fees could hardly have come as a shock to Turner”).
C. Claims Frivolous, Unreasonable, or Groundless
[38] Staff Source asserts its claims were not frivolous or groundless. Without
citation to the record, it asserts there was a factual dispute of whether Wallace
was an employee when she signed the applicable agreement and whether her
compensation as an independent contractor was attached to the applicable
agreement. Defendants argue all of Staff Source’s claims except for Count II,
violation of the Indiana Uniform Trade Secrets Act, were based upon a
purported breach of the Employment Agreement.
[39] Even assuming that the “Employment Agreement” was effective in 2007,
Paragraph 15 limited the time of the agreement by providing that “during the
term of this Agreement and for a period of one (1) year immediately following
the termination of EMPLOYEE’s employment . . . .” Exhibits Volume II at 12.
Wallace testified that her employment relationship with Staff Source ended
many years prior to 2018. The record contains 1099 forms for 2014, 2015,
2016, and 2017, which indicate Staff Source listed her compensation as
nonemployee. Wallace testified she was exclusively a 1099 independent
contractor for at least nine tax years prior to leaving Staff Source as an
independent contractor. She also testified that the Working Agreement she
signed in 2017 had nothing to do with the Employment Agreement she signed
in 2007. Mirko testified that he could not find the Working Agreement in Staff
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 26 of 29
Source’s records and that Wallace asked somebody from Staff Source to sign it
during her IRS audit, which indicates that the Working Agreement was
backdated by Staff Source.
[40] The record and the court’s findings support that the Employment Agreement
had expired years prior to Wallace’s termination of her relationship with Staff
Source and that Staff Source backdated the Working Agreement. We conclude
that Staff Source’s claims regarding breach of the Employment Agreement and
tortious interference by Milan, Slobodan, and the Resolve Group with Staff
Source’s contractual relationship and business relationship with Wallace were
frivolous, unreasonable, or groundless. The trial court did not abuse its
discretion by ordering Staff Source to pay Defendants’ attorney fees.
D. Sufficient Evidence of Fees
[41] Staff Source argues that Defendants did not submit the required evidence of the
nature of legal services and reasonableness of the fee. It asserts the Defendants
provided no third-party objective evidence of the nature of legal services and the
reasonableness of the fee requested. It also asserts the court erred in awarding
fees incurred after the March 5, 2019 dismissal.
[42] In support of their claim for attorney fees, Defendants submitted the Attorney
Fee Request for Milan, Slobodan, the Resolve Group, LLC, and Resolve HR,
LLC, which contained the affidavits of two attorneys including the amounts of
billable time and a description of the work, and the Attorney Fee Request for
Wallace containing the affidavits of two attorneys and billing sheets. This
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evidence was sufficient to support the trial court’s determination of the amount
of the attorney fees award. We note that the awarded fees are equal to the
amounts requested in the Attorney Fee Request for Defendants Milan,
Slobodan, the Resolve Group, LLC, and Resolve HR, LLC, and the Attorney
Fee Request for Wallace, and do not include the supplemental fees mentioned
in the supplemental affidavits of Defendants’ counsel. We cannot say the court
abused its discretion.
II.
[43] With respect to Defendants’ request for appellate attorney fees, Ind. Appellate
Rule 66(E) provides that this Court “may assess damages if an appeal, petition,
or motion, or response, is frivolous or in bad faith. Damages shall be in the
Court’s discretion and may include attorneys’ fees.” Our discretion to award
attorney fees under Ind. Appellate Rule 66(E) is limited to instances when “an
appeal is permeated with meritlessness, bad faith, frivolity, harassment,
vexatiousness, or purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346
(Ind. Ct. App. 2003). To prevail on a substantive bad faith claim, a party must
show that the appellant’s contentions and arguments are utterly devoid of all
plausibility. Id. Procedural bad faith occurs when a party flagrantly disregards
the form and content requirements of the rules of appellate procedure, omits
and misstates relevant facts appearing in the record, and files briefs written in a
manner calculated to require the maximum expenditure of time both by the
opposing party and the reviewing court. Id. at 346-347. In light of Staff
Source’s appellate briefs and arguments, we conclude that Defendants are
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entitled to appellate attorney fees, and we remand to the trial court to determine
the proper amount of the attorney fees.
[44] For the foregoing reasons, we affirm the trial court’s orders, grant Defendants’
request for appellate attorney fees, and remand for a determination of their
reasonable appellate attorney fees.
[45] Affirmed and remanded.
Baker, J., and Riley, J., concur.
Court of Appeals of Indiana | Opinion 19A-PL-1569 | March 13, 2020 Page 29 of 29 | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1321419/ | 279 S.C. 167 (1983)
303 S.E.2d 855
The STATE, Respondent,
v.
Glen A. JEFFCOAT and William Hutchinson, Appellants.
21934
Supreme Court of South Carolina.
June 6, 1983.
*168 Kerry W. Koon and O. Grady Query, Charleston, and Frederick A. Gertz and Alice S. Moore, Columbia, and Deputy Appellate Defender David W. Carpenter, of S.C. Com'n of Appellate Defense, Columbia, for appellants.
Atty. Gen. T. Travis Medlock, Retired Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. William K. Moore and C. Richard Kelly, Columbia, for respondent.
June 6, 1983.
NESS, Justice:
*169 Appellants Jeffcoat and Hutchinson were convicted of five counts of obtaining property or signatures by false pretenses and one count of conspiracy to obtain property or signatures by false pretenses. Jeffcoat was also convicted of three counts of breach of trust with fraudulent intent. Jeffcoat was fined and sentenced to a total of fifteen years; Hutchinson was fined and sentenced to three months actual confinement and five years probation. We affirm.
In April 1979, appellant Jeffcoat contracted to purchase certain land from Gibson-Wall Partnership for $2,030,000.00. The contract called for a $50,000.00 deposit, payment of 8.5% interest on the remaining $1,980,000.00 on September 15, 1979, with closing soon thereafter. Immediately after signing the sale contract, appellants began selling residential lots to individual purchasers.
Appellants failed to pay the interest due on September 15th, and Gibson-Wall declared the contract breached in late October. The contract being breached, appellants could not obtain title to convey to those who purchased from them. Nevertheless, appellants continued to accept installment payments from purchasers pursuant to the sales contracts.
Appellants first contend the trial judge erred in denying their motions for directed verdicts on the charges of obtaining property or signatures by false pretenses because (1) the State failed to prove the elements of the crime, and (2) the proof varied from the allegations contained in the indictments.
The indictments allege appellants falsely pretended the land was unencumbered, and that the land was suitable for installation of septic tanks. At trial, the State presented evidence the appellants held themselves out as owning the land, and did not disclose to purchasers that they did not have legal title. Additionally, the record establishes appellants, although aware the water table was too high and that the Department of Health and Environmental Control prohibited septic tanks on subdivisions of more than forty lots, told purchasers they could place septic tanks on the lots.
Other than complete lack of ownership, we know of no greater encumbrance to a land transfer than lack of legal title. We hold that a seller's failure to disclose his lack of legal title can constitute a false pretense. See State v. Johnson, 20 S.C. 387 (1883); State v. Stanley, 116 Kan. 449, 227 *170 P. 263 (Kan. 1924); 35 CJS, False Pretenses, § 8. We see no material variance warranting a directed verdict.
Appellant Jeffcoat contends the State failed to prove he made any misrepresentations, since his sales agent, appellant Hutchinson, handled the sales. However, the record reveals Jeffcoat furnished Hutchinson with restrictive covenants and contracts of sale which contained the misrepresentations, and obviously intended that these documents be given to the purchasers. Jeffcoat's bookkeeper and another salesman testified they were instructed by Jeffcoat to tell purchasers the lots were suitable for septic tanks. The evidence sufficiently establishes Jeffcoat's guilt as a principal. See State v. Thompkins, et al., 220 S.C. 523, 68 S.E. (2d) 465 (1951); State v. Blackwell, et al., 220 S.C. 342, 67 S.E. (2d) 684 (1951).
Appellants next assert the trial judge erred in denying their motions for directed verdict on the conspiracy charge as the State failed to prove a conspiracy.
S.C. Code Ann. § 16-17-410 (1976) defines a conspiracy as "... a combination between two or more persons for the purpose of accomplishing a criminal or unlawful object or an object neither criminal nor unlawful by criminal or unlawful means." Conspiracy may be proved by circumstantial evidence. State v. Oliver, 275 S.C. 79, 267 S.E. (2d) 529 (1980).
The record reveals that each knew of the other's wrongful acts, yet neither objected. The crime could not have been committed in the manner it was, had there not been at least a tacit understanding, as each needed the other's cooperation. The evidence adequately supports the conspiracy convictions.
Appellant Jeffcoat next asserts the trial court erred in admitting into evidence two groups of checks because they were irrelevant and improperly authenticated.
We see no authentication problem, as Jeffcoat's signature on the checks was identified by his bookkeeper. The State demonstrated the checks were relevant, as purchasers' money had gone into the accounts on which the checks were written. The determination of relevancy is largely within the discretion of the trial judge. Hankins v. Foye, 263 S.C. 310, 210 S.E. (2d) 305 (1974). We find no error.
Next, Jeffcoat argues the trial court erred in denying his motion for a directed verdict on the breach of trust charges.
*171 The sales contracts contained an itemized charge for paving roads in the subdivision, even though the purchasers' lots were already on paved roads. When the purchasers questioned this charge, they were told the money would be used to pave the roads over the entire subdivision. Despite these representations, the record reveals the so-called "paving funds" were commingled with general corporate funds, and were used in part to pay Jeffcoat's personal expenses. The evidence reasonably supports the breach of trust convictions.
Jeffcoat further argues that one of the breach of trust indictments is duplicitous because it charges two separate breach of trust offenses. The trial judge concluded that even though there were two separate contracts involved, the money due under both contracts was paid by the same person, and thus there was but one breach of trust offense alleged. The evidence amply substantiates this conclusion.
Finally, both appellants contend the trial judge abused his discretion by giving them excessive sentences.
We will not disturb a sentence within statutory limits absent a showing of prejudice. Wood v. State, et al., 257 S.C. 179, 184 S.E. (2d) 702 (1971); State v. Mayfield, 235 S.C. 11, 109 S.E. (2d) 716 (1959). Both sentences are well within statutory limits, and the trial judge stated appropriate reasons for the length of the sentences at trial. As appellants can demonstrate no prejudice, we find no abuse of discretion.
Affirmed.
LEWIS, C.J., and LITTLEJOHN, GREGORY and HARWELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261249/ | 223 F.Supp. 663 (1963)
John CATTO, Jr. and Roxana Catto, his wife,
v.
UNITED STATES of America.
Civ. A. No. 3060.
United States District Court W. D. Texas, San Antonio Division.
September 30, 1963.
*664 Gordon G. Hawn and Ralph G. Langley, Foster, Lewis, Langley & Onion, San Antonio, Tex., for plaintiff.
Louis F. Oberdorfer, Asst. Atty. Gen., Washington, D. C., and Ernest Morgan, U. S. Atty. for Western Dist. of Texas, for the Government.
SPEARS, Chief Judge.
The above-entitled action was brought by Plaintiffs against Defendant for the recovery of income taxes and interest thereon heretofore assessed against and collected from Plaintiffs by Defendant. After the Defendant answered, the Plaintiffs and Defendant made and entered into stipulations of fact. There being no dispute as to any material fact, and the suit involving a question of law, the case came on for trial on the 3rd day of May, 1963, for oral argument and submission to the Court. The Court having considered the Stipulations of Facts entered into between the Plaintiffs and Defendant, the briefs submitted to the Court by the parties, and the arguments of counsel, upon the entire record, now makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
(1) All the material facts herein have been stipulated and the Stipulations of Facts entered into between Plaintiffs and Defendant are hereby found as stipulated and are incorporated herein.
(2) This action is for the recovery of income taxes and interest heretofore assessed against and collected from Plaintiffs by Defendant and is brought under Title 28, U.S.C., Section 1346(a) (1) as amended and under the Internal Revenue Code of 1954.
(3) Plaintiffs are husband and wife and at all times material hereto were residents of Bexar County, City of San Antonio, State of Texas.
(4) During the years 1954 and 1955 (the years involved in this proceeding) and for many years prior thereto, Plaintiffs were engaged in the ranching business. In connection therewith Plaintiffs owned and operated two ranches in West Texas. One ranch, which is located in Brewster County, is known as the Marathon Ranch and consists of approximately 173,000 acres. The other ranch, which is located in Presidio County, is known as the Marfa Ranch and consists of approximately 20,000 acres.[1]
(5) The ranching business conducted by Plaintiffs consisted of breeding and raising cattle for the production and *665 sale of calves. Customarily the animals sold by the Plaintiffs are sent to the Midwest by purchasers for fattening and ultimate sale for beef or slaughter purposes. In connection with the ranching business Plaintiffs maintained a breeding herd of Hereford cattle. As circumstances required, Plaintiffs purchased bulls and cows for addition to their breeding herd, to increase the herd, improve the quality and prevent inbreeding. Also, as circumstances required, the Plaintiffs selected certain calves produced from the breeding herd and added the same thereto. The number of animals to be retained in the breeding herd was determined on the basis of range conditions, rainfall, costs of operation and other factors. When required by age, disease and other circumstances, the Plaintiffs culled from the breeding herd and sold animals which were unfit for breeding stock or which for some other reason could not be retained. Calves produced by the breeding herd and not added to the breeding herd were sold in the due course of business.
(6) For each of the years here involved, Plaintiffs kept their books and records and filed their federal income tax returns on the accrual (inventory) and calendar year basis, and used the unit-livestock-price method of valuing inventory. Plaintiffs, either as members of a partnership operating the ranches or as sole proprietors, have been using the accrual (inventory) method for keeping their books and records and valuing inventory under the unit-live-stock-price method since 1938.[2]
(7) Under Treasury Regulation 1.471.6(f), (and its predecessors), a taxpayer valuing inventory under the unit-livestock-price method is required to include raised breeding animals as well as animals held for sale in the ordinary course of business in inventory at a unit value. Under said Treasury Regulation (and its predecessors) as such animals advance in age the taxpayer is required to increase the unit values thereof.[3]
(8) For each of the years here involved, as well as for each of the years prior thereto, Plaintiffs, as required by the Treasury Regulations, included their raised breeding animals in their inventory along with animals raised and held for sale in the ordinary course of business and valued such raised breeding animals under the unit-livestock-price method in accordance with the Treasury Regulations.
(9) For each of the years here involved as well as for each of the years prior thereto, the inclusion of raised breeding animals in Plaintiffs' livestock *666 inventory as required by the Treasury Regulations, and the valuation thereof under the unit-livestock-price method as provided in the Treasury Regulations, resulted in increasing Plaintiffs' ordinary income for each of such years in an amount equal to the unit value assigned to each new raised breeding animal included in inventory for the first time, plus an amount equal to the annual increase in unit value for the raised breeding animals previously included in inventory.[4] If Plaintiffs were subject to ordinary income tax in that year, it resulted in increasing the ordinary income tax paid by them. On the other hand, in the year such animals were sold the amount of profit from the sale that was entitled to capital gain treatment was reduced because Plaintiffs were required to deduct, as the cost basis, the accrued inventory value from the sales price in order to compute the amount of profit to which the capital gain rate would apply.
(10) During the years involved herein, and prior and subsequent thereto up to and including the present time, the Commissioner of Internal Revenue did not, and does not, require ranchers who maintain breeding herds and file their Federal tax returns on the cash receipts and disbursements basis, to include raised breeding herd animals in inventory.
(11) In each of the years here involved, as well as in the previous years, Plaintiffs culled and sold from their breeding herd, animals (including raised animals) which had been held and used by them for breeding purposes and had been held by them for more than twelve months before the date of such sales but which were unfit for breeding purposes or which for other reasons were not suitable or desirable for retention in their breeding herds.
(12) In filing their Federal income tax returns for each of the years here involved, the Plaintiffs, in determining the amount of gain from the sale of raised animals which had been held and used by them for breeding purposes and had been held by them for more than twelve months before the date of such sales, used the accrued unit inventory value assigned to such animals as the basis. In filing said returns, Plaintiffs, also in accordance with the applicable Treasury Regulations, included new raised breeding herd animals in inventory at a unit value and increased the unit value of raised breeding herd animals in inventory.
(13) The Commissioner of Internal Revenue caused Plaintiffs' Federal income tax returns for the years here involved to be examined and determined that there was a deficiency in income taxes due from Plaintiffs; said deficiency was attributable to adjustments presently not in controversy in this proceeding. On October 17, 1960, Plaintiffs paid to the District Director of Internal Revenue at Austin, Texas, the said deficiency plus statutory interest thereon.
(14) Thereafter, Plaintiffs duly filed claims for refund in due and proper form with the District Director of Internal Revenue at Austin, Texas, for the recovery of income taxes overpaid for the years involved herein. Said claim was neither rejected nor paid and after the expiration of six months Plaintiffs filed the complaint in this proceeding.
(15) During the years involved herein Plaintiffs did not file a request to change from the accrual (inventory) method of accounting to the cash receipts and disbursement method with the Commissioner of Internal Revenue. During such years the Commissioner would not consider a request of a rancher or farmer to change from the accrual (inventory) method of accounting to the cash receipts and disbursements.
*667 (16) In their claims for refund and in this proceeding Plaintiffs claim:
1. That Treasury Regulation Section 1.471-6(f), and its predecessor, requiring Plaintiffs to include raised breeding herd animals in inventory, are contradictory to Section 1231 of the Internal Revenue Code of 1954 which provides that livestock held for draft, dairy or breeding purposes constitutes property used in the trade or business, and that they are, therefore, invalid and of no force and effect.
2. That Plaintiffs are entitled to remove from inventory raised breeding animals included in inventory in compliance with the said Treasury Regulation in order to correct an error caused by the Regulation.[5]
3. That Plaintiffs are entitled to use zero as the basis of breeding animals sold during such years rather than the accrued unit value assigned to such animals in determining the amount of gain under the provisions of Section 1231 of the Internal Revenue Code of 1954.
4. That the correction of the error caused by the invalid Treasury Regulation does not constitute a change of accounting method, and therefore, Plaintiffs were not, and are not, required to obtain the consent of the Commissioner.
5. That even if a change of accounting method is involved, the law does not require a taxpayer to do a useless thing by applying to the Commissioner to change an item when the Commissioner arbitrarily refuses to consider and act upon such applications.
6. That the decision of the United States Court of Appeals for the Fifth Circuit in the case of Scofield v. Lewis, 251 F.2d 128, holding the Regulation in question invalid is controlling in this case.
(17) All findings of facts deemed conclusions of law are hereby adopted as conclusions of law.
CONCLUSIONS OF LAW
From the foregoing facts the Court concludes as follows:
(1) This Court has jurisdiction of the subject matter of this action and the parties.
(2) In filing their Federal income tax returns for the years here involved, Plaintiffs erroneously, but in compliance with the provisions of Treasury Regulation Section 1.471-6(f), included within their inventory of livestock raised breeding animals which constituted a part of the breeding herd and which were held for breeding purposes. Scofield v. Lewis, 251 F.2d 128 (5th Cir. 1958) affirming the decision of the United States District Court, Western District of Texas, 57-1 U.S.T.C. par. 9251.
(3) Section 1231 of the Internal Revenue Code clearly and unequivocally states that livestock held for breeding purposes is property used in the trade or business of the taxpayer. As to such livestock, the taxpayers were not required to include them in inventory, or to use a unit-livestock-price method to determine the cost basis of animals sold. Scofield v. Lewis, supra, 251 F.2d at page 132.
(4) Treasury Regulation 1.471-6 (f), and specifically the portion thereof requiring the inclusion of breeding herd animals in a ranchman's inventory, is *668 violative of, and is in conflict with Section 1231 of the Internal Revenue Code and is, therefore, invalid; consequently, the Plaintiffs should not have been compelled to include their raised breeding herd animals in inventory. Scofield v. Lewis, supra.
(5) The so-called rule that re-enactment of a statute gives the force of law to a prior regulation interpreting the statute is not applicable in this case (a) because the Defendant has failed to establish that Congress had general or specific knowledge of the portion of the regulations in question;[6] (b) because the portion of the regulations in question was not in fact a construction or interpretation of the statute but was an invalid provision in conflict with the statute, and (c) because the statute in question is clear and unequivocal and therefore the rule of re-enactment is not pertinent.[7]
(6) Plaintiffs are entitled to remove from inventory raised breeding animals included in inventory in compliance with the said Treasury Regulation in the manner claimed in order to correct an error caused by the Regulation. Scofield v. Lewis, supra.
(7) Plaintiffs are entitled to use zero as the basis of breeding animals sold during the years involved herein rather than the accrued unit values assigned to such animals in determining the amount of gain under the provisions of Section 1231 of the Internal Revenue Code of 1954. Scofield v. Lewis, supra.
(8) Section 446(e) of the Internal Revenue Code of 1954 and the Regulations applicable thereto, requiring the consent of the Commissioner of Internal Revenue to any change in accounting method have no application to a situation where a taxpayer seeks to remove from inventory items which, under the statute, qualify as property used in the trade or business, and which were improperly required by an invalid regulation to be included in inventory in the first place. Inasmuch as this removal does not involve a change of accounting method, neither the approval nor the consent of the Commissioner is required. In this situation, methods of accounting are not determinative of the tax liability, and for this reason neither approval nor consent of the Commissioner is required. Scofield v. Lewis, supra.
(9) The decision of the United States Court of Appeals for the Fifth Circuit in Scofield v. Lewis, supra, is controlling here.
(10) Plaintiffs' selection of the accrual (inventory) method of accounting and the unit-livestock-price method of valuing inventory when they commenced operating the ranches as a partnership in 1938 was not a meaningful choice, as at that time the statute did not authorize capital gains treatment on livestock used for draft, dairy or breeding purposes. It was not until 1951 that Congress specifically authorized capital gains treatment on livestock by amending Section 117(j) of the 1939 Code; and it was not until January 20, 1958 that the Court of Appeals for the Fifth Circuit decided the case of Scofield v. Lewis, supra. Thus, in any event, Plaintiffs did not have a knowledgeable choice as to accounting methods when they began operating their ranches as sole proprietorships, or when they filed their income tax returns for 1954 and 1955, and they have validly and timely corrected the error in their inventory practices resulting from the invalid regulation.
(11) Any conclusion of law deemed a conclusion of fact is hereby adopted as a finding of fact.
(12) Judgment shall be entered for the Plaintiffs for the amounts stipulated to be in controversy, together with costs.
NOTES
[1] These ranches were originally owned by Plaintiff-Roxana Catto's father and mother, Mr. and Mrs. A. S. Gage. In 1924 Mrs. Gage died and devised her community one-half interest in the community estate in trust for the benefit of her two daughters (Plaintiff-Roxana Catto and her sister) with her husband as trustee. Thereafter the ranches were operated as an informal partnership by Mr. Gage in his capacity as trustee for his two daughters under Mrs. Gage's will and in his individual capacity. In 1928 Mr. Gage died. Under his will his interest in the ranches was devised, in trusts for ten years for the benefit of his two daughters (Plaintiff-Roxana Catto and her sister). The trustees operated the ranches as a partnership until 1938 when the trusts and partnership were terminated. Thereafter, Plaintiff-Roxana Catto, her sister and their respective husbands operated the ranches as a partnership. On December 31, 1948, the partnership operations at the Marathon Ranch were terminated and equally divided tween the daughters, and thereafter, each daughter owned and operated a separate ranch at Marathon. On December 31, 1951, the partnership operations at the Marfa Ranch were terminated and equally divided between the two daughters who thereafter operated their respective portions separately.
[2] This method was first adopted by Plaintiff-Roxana Catto's father and mother in approximately 1920 and was continued by the various partnerships which operated the ranches until 1938. When Plaintiff-Roxana Catto, her sister and their respective husbands commenced operating the ranches as a partnership they continued to use this method; and when the partnership operations were terminated and the Plaintiffs began operating their part of the ranches as a sole proprietorship at the end of 1948 and 1951 they continued to use this method.
[3] The kinds, classifications, categories and unit values assigned to raised breeding herd animals during the years 1954 and 1955 and prior thereto were as follows:
NON-REGISTERED REGISTERED
Heifer yearlings $25.00 Calves $30.00
Cows, two-year-old 30.00 Heifer yearlings 75.00
Cows, three-year-old 35.00 Cows 100.00
Bulls 100.00 Bulls 100.00
The partnership between Plaintiff-Roxana Catto, her sister and their respective husbands began using these particular unit values on January 1, 1942, and continued to use them throughout the duration of the partnership. When Plaintiffs commenced operating the ranches as a sole proprietorship they used the same unit values.
[4] Under this method the Plaintiffs would include in inventory the yearling heifer at $25.00. This would mean an increase in ordinary income of $25.00. As to the same animal, in the following year the value would be increased to $30.00. This increment created a like amount of ordinary income to the extent of $5.00.
[5] The removal of such animals from inventory would be accomplished by:
(1) Adjusting closing inventory in the years involved eliminating therefrom an amount equal to the accrued unit value of raised breeding animals sold during such years; and,
(2) Adjusting closing inventory in the years involved eliminating therefrom the unit value of those raised breeding herd animals involved in inventory for the first time in such years and not sold, and the increase in the unit value of those raised breeding herd animals in inventory from previous years and not sold during such years.
[6] See Mertens Law of Federal Income Taxation, Vol. 1, Sec. 3.25 Pages 49 and 51.
[7] See Mertens, supra, at page 48, where it is stated that "The doctrine (of statutory re-enactment) has no application where the law itself is plain and needs no administrative construction * * *." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261255/ | 223 F.Supp. 215 (1963)
TIDEWATER OIL COMPANY, a Corporation, Plaintiff,
v.
Ray PENIX, Defendant.
Ray Alfred PENIX and Wauneta Penix, Plaintiffs,
v.
TIDEWATER OIL COMPANY, a Corporation, Defendant.
Civ. Nos. 5220-5225.
United States District Court E. D. Oklahoma.
November 20, 1963.
*216 Gable, Gotwals & Hays, Tulsa, Okl., Cloy D. Monzingo, Houston, Tex., for Tidewater Oil Co.
Luton, Lunn & Ferguson, Muskogee, Okl., for Ray Penix.
BOHANON, District Judge.
Upon the evidence presented, argument of counsel, and Briefs, the Court makes the following Findings of Fact and Conclusions of Law.
Findings of Fact
1. That Ray Alfred Penix and Wauneta Penix, husband and wife, residents of Muskogee County, Oklahoma (hereinafter referred to as "Penix"), are the owners of the surface of the following described property in Muskogee County, Oklahoma, to-wit:
The West Half of the Southeast Quarter (W/2 SE/4) of Section 5, Township 14 North, Range 18 East, Muskogee County, Oklahoma,
having acquired the same in 1956.
2. That Tidewater Oil Company, a Delaware corporation with its principal place of business in California (hereinafter referred to as "Tidewater"), is the owner of a valid oil and gas lease on said property dated September 7, 1912, for the purpose of mining and operating for oil and gas under an agreement to pay for damages caused by it to growing crops on said land; that said lease, along with other leases in this area, is being operated as a waterflood project using secondary methods of oil production.
3. That the defendant Penix contends that waterflooding was unknown to the oil industry and was not contemplated between the lessor and lessee in the Oil and Gas Lease executed on the 7th day of September, 1912, and that the operations on the leased premises for waterflooding secondary recovery of oil and gas amounted to an enlargement of the original Oil and Gas Lease to the extent that the defendant Penix had larger and greater rights than otherwise would be true in oil and gas leases executed between lessors and lessees where waterflooding was a common practice and in the contemplation between lessor and lessee. The Court finds that in 1912 waterflooding was not known and was not a common practice in the oil industry and therefore could not have been in the contemplation of lessor and lessee on the date of the execution of the Oil and Gas Lease in question. The Court finds that in 1956, the year the defendant Penix acquired the surface to the premises in question, secondary recovery of oil by waterflooding was a common practice in the State of Oklahoma. That notwithstanding the fact that waterflooding was not a common practice for secondary recovery of oil in 1912, the Oil and Gas Lease in question did provide for operations broad enough to allow waterflooding, inasmuch as the Oil and Gas Lease provided in part as follows:
"Parties of the first part (lessor) * * * have granted, demised, leased and let, and by these presents do grant, demise, lease and let unto the said second party, its successors or assigns, for the sole and only purpose of mining and operating for oil and gas, and of laying pipe lines and of building tanks, power stations and structures thereon to produce and take care of said products, * * *"
The Lease further provided:
"It is agreed that this lease shall remain in force for the term of five years from this date (7 September 1912), and as long thereafter as oil or gas or either of them is produced *217 therefrom by the party of the second part, its successors or assigns."
The Court finds that by the general terms of the original Oil and Gas Lease, the Lessee not only had a right, but had a duty, to waterflood the premises for the recovery of oil for the benefit of the mineral owners should it be determined by a prudent operator to be profitable. The Court further finds that even though secondary recovery by way of waterflooding was not specifically agreed to between the parties in 1912, the Lease itself is broad enough to authorize the lessee to waterflood the premises for secondary recovery of oil and that such operations must be carried on in a manner not to use any more of the surface than is reasonably necessary.
4. The Court finds that in the early operation of the Oil and Gas Lease in question a number of wells had been drilled and produced for a period of time and thereafter plugged. That the plugging of approximately nine wells was performed in such a way and manner as to probably permit water which was injected into the input wells under pressure to travel up the improperly plugged wells and pollute subsurface fresh water and permit pollution of the surface of the premises by way of salt water and/or oil. That to remedy this situation, it was necessary to clean out the old plugged holes and replug the wells with cement plugs and other modern methods as prescribed by the Corporation Commission of the State of Oklahoma, a state agency having charge of such matters.
5. That Penix refused to allow Tidewater to enter said premises to carry on said waterflood project by washing down and replugging nine old wells, drilling injection wells, and performing other operations which are necessary to such project, thereby endangering the success of the whole project and threatening irreparable injury and loss to Tidewater greatly in excess of $10,000; whereupon, the Court entered a temporary injunction against Penix and the agents, servants, and employees of Penix, enjoining them from obstructing, interfering with, or preventing said operations during the pendency of this suit.
6. That under the temporary injunction issued herein, Tidewater has replugged the nine old abandoned wells, drilled an additional producing well, built necessary roadways, and laid necessary pipelines; that such work was performed in the usual and customary manner according to methods and standards used by reasonable and prudent operators, with only such part of the surface of said land being used as was reasonably necessary; and that Tidewater was not guilty of either negligence or use of more surface than was reasonably necessary in connection with said operations.
7. That Tidewater contemplates the drilling of one additional injection well and the construction of necessary roadways and pipelines appurtenant thereto.
8. Although the waterflood method of secondary recovery was not a common practice at the time the lease here involved was executed, nevertheless, the terms of the lease grant to the lessee the right to mining and operating for oil and gas. The granted right must necessarily include the right to use so much of the surface as may be required reasonably to effectuate the purposes of the grant, including the use of secondary recovery methods of extracting minerals.
9. That no crops were growing on said land at the time of Tidewater's operations; that there was pasture grass standing thereon which was dead at the time; that the surface area used in connection with the replugging and washing down operation has been put back in as good a condition as it was in prior to Tidewater's operations; and that the surface area used in the replugging and washing down operation has been fertilized and sodded and planted with grass; that there has been no appreciable loss of grass; and that any prospective depreciation of the land is purely speculative.
10. That Penix has suffered no damage by reason of the operations of Tidewater on the lease, either to the present *218 value of the real estate or to growing crops; that there is no indication of future loss in value to the land which may result from the present or proposed use of the land by Tidewater Oil Company and that Tidewater did not damage any fences and did not allow any cattle to escape by reason of negligence and did not cause Penix to sell any cattle.
11. The Court finds that Tidewater was not negligent in drilling the two existing wells, did not use more of the surface than was reasonably necessary, did no damage to growing crops, and present or prospective value of the land did not depreciate in value because of said operations.
Conclusions of Law
The Court concludes as a matter of Law:
1. That this case was properly brought in this Court, and the Court has jurisdiction of the subject matter and of the parties.
2. That the right of mining and operating for oil and gas as contemplated by the terms of the lease involved herein includes the right of conducting secondary recovery methods, including but not limited to the necessary reworking, washing down, and replugging of any old wells, and the drilling of new producing or injection wells, the laying of the necessary pipelines, and the building of the necessary roads.
3. That the conducting of secondary recovery operations does not constitute either an unreasonable and unnecessary use of the land by the lessee and does not subject the lessee to any greater liability for damages than primary recovery operations.
4. That in the absence of use of more of the land than is reasonably necessary and in the absence of negligence in conducting its operations, Tidewater is liable for damages only to the extent expressly provided in the lease, such being liability for damages caused to growing crops.
5. That since no more of the surface was used than was reasonably necessary, since Tidewater was not negligent in its operations, and since no damage was done to growing crops, Penix is not entitled to any recovery by reason of any matters contained in the Cross-Petition or otherwise.
6. That since no more of the surface was used in connection with the drilling of the two producing wells than was reasonably necessary, since Tidewater was not guilty of any negligence in connection with the drilling of said wells, and since no damages were done to growing crops in connection with the drilling of said wells, Penix is entitled to no recovery in connection with said operations.
7. That since no damages will be done to growing crops in connection with the drilling of the contemplated injection well and necessary roads and pipelines appurtenant thereto, Penix is entitled to no recovery for crop damages in connection with said operation.
JUDGMENT
Upon the Findings of Fact and Conclusions of Law heretofore made herein,
It is ordered, adjudged and decreed as follows:
1. That Tidewater Oil Company is the owner of a valid and subsisting oil and gas lease providing for the mining and operating for oil and gas upon the following-described property, to-wit:
The West Half of the Southeast Quarter (W/2 SE/4) of Section 5, Township 14 North, Range 18 East, Muskogee County, Oklahoma,
the surface of which property is owned by Ray Alfred Penix, which lease is dated the 7th day of September, 1912; and that said lease entitles the owner thereof to mine and operate for oil and gas, including the right of secondary recovery methods and including waterflooding.
2. That the defendants, Ray Alfred Penix and Wauneta Penix, their agents, servants, and employees, are hereby permanently enjoined from obstructing, interfering with, or preventing Tidewater *219 Oil Company from going on the leased premises in exercise of its rights under the lease or in any other manner hindering, delaying or preventing Tidewater in the exercise of its rights thereunder, and particularly in the exercise of its rights to operate said property for oil and gas, using secondary recovering methods, including waterflooding, and from interfering with the building of the necessary roads and the drilling of the necessary producing and injection wells.
It is further ordered, adjudged and decreed by the Court that the recovery of any damages by Ray Alfred Penix and Wauneta Penix as claimed in their counterclaim or for damages by reason of the operations of the Tidewater Oil Company are hereby denied and the costs of these actions are assessed against Ray Alfred Penix and Wauneta Penix.
It is further ordered that the Court retain jurisdiction of this matter to hear and determine any problems that may develop as between the parties. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261264/ | 130 Cal.Rptr.2d 517 (2003)
106 Cal.App.4th 119
Jack H. SPRAGUE et al., Plaintiffs and Appellants,
v.
COUNTY OF SAN DIEGO, Defendant and Respondent.
No. D038491.
Court of Appeal, Fourth District, Division One.
January 21, 2003.
As Modified February 10, 2003.
Review Denied April 30, 2003.
*518 Louis E. Goebel, San Diego, for Plaintiffs and Appellants.
John J. Sansone, County Counsel, Judith A. McDonough and Miriam E. Brewster, Deputy County Cunsel, for Defendant and Respondent.
NARES, Acting P.J.
Plaintiffs and appellants Jack H. Sprague (Jack Sprague), Jack H. Sprague, Jr., Christopher Sprague and Carolyn Sprague Lee (collectively Sprague) brought an action against respondent County of San Diego (the County) based on the County's denial of Sprague's request for approval of a tentative subdivision map and other related *519 plans and permits related to a proposed 146-unit residential development. Express provisions of the Subdivision Map Act set forth in Government Code[1] section 66499.37[2] require that "[a]ny action" challenging a decision by a legislative body "concerning a subdivision" be commenced, and "service of summons effected," within 90 days of the decision. (Italics added.)
Sprague commenced the subject action in a timely manner, but served the summons 117 days after the County's decision. The court granted the County's motion for judgment on the pleadings on the ground Sprague failed to comply with the 90day period for service of summons set forth in section 66499.37.
Sprague appeals from the judgment of dismissal, contending (1) the court erroneously ruled that the service requirement in section 66499.37 is a statute of limitations; (2) the County made a general appearance when it filed its original answer to the complaint, and thus waived any defect in the service of summons; (3) having generally appeared instead of taking issue with jurisdiction in this matter, the County is estopped to assert failure to timely serve the summons as a defense; (4) the court's insistence on referring to the 90-day service requirement of section 66499.37 as a "statute of limitations" blinded the court to the provisions of Code of Civil Procedure section 473, subdivision (b), which provides that a trial court "shall" vacate a dismissal caused by attorney mistake, inadvertence, surprise or neglect; and (5) Sprague was "sorely prejudiced" by the court's erroneous failure to conduct judicial review of the subject residential development project on the merits. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND[3]
Sprague owns in fee simple about 64 acres of undeveloped rolling hills (hereafter the property) in a developed area of Lakeside. Adjoining properties include a 160-space mobile home park and a condominium complex.
County's decision
In 1987, Sprague submitted to the County an application for approval of a specific plan and related permits for a proposed development of 146 residential units. Sprague revised the project and, in August 1988, submitted to the County requests for approval of a specific plan, tentative map, major use permit, and site plan. County staff requested further site-specific review on issues related to hillside development, *520 grading and erosion, visual effects, and traffic circulation and access.
On August 9, 2000, the County Board of Supervisors denied Sprague's application without a hearing.
Sprague's complaint
On October 6, 2000, about two months after the County issued its decision, Sprague challenged the decision by filing the subject complaint, which included a related petition for writ of administrative mandamus.[4] Sprague filed these pleadings within the 90-day period specified in section 66499.37 (see fn. 2, ante), the statute at issue in the instant appeal. Sprague, however, did not serve the County with a copy of the summons until December 4, 2000, 117 days after the County's August 9 decision, and 27 days after the statutory 90-day time limit for service of summons expired on November 7.
County's amended answer
On January 3, 2001, the County answered the complaint without pleading a statute of limitations affirmative defense. Thereafter, with leave of court, the County filed an amended answer that asserted a statute of limitations defense under section 66499.37. Sprague did not oppose the County's application for leave to amend its answer.
County's first motion for judgment on the pleadings
The County moved for judgment on the pleadings on the ground the action was barred as a result of Sprague's failure to serve the summons on the County within the 90-day period specified in section 66499.37. In a telephonic ruling issued on March 16, 2001, the court granted the motion, finding that the 90-day limitations period set forth in section 66499.37 is mandatory and "has nothing to do with jurisdiction." The court also found that Sprague "[had] failed to effect service of summons within 90-days ... of the [County's] decision."
During oral argument on the motion, Sprague's counsel requested leave to amend the complaint to allege facts related to an excuse for Sprague's failure to comply with the service of summons limitation provision of section 66499.37. Specifically, counsel indicated that one of his clients was on medication, had shingles, and was unable to participate in the discovery process.
The court repeatedly expressed skepticism about counsel's "offer of proof as to Sprague's ability to plead around the time limitation provisions of section 66499.37, observing that the proffered excuse had "nothing to do with serving the complaint almost a month late." The court also observed that Sprague's counsel "could have come into court and gotten leave of court to have things stayed or put on hold or slowed down while [the client] recovered," and the court did not "see a connection between the plaintiffs disability and complying with the statute of limitations."
Over the County's objection, the court granted Sprague's request for leave to amend the complaint, but stated that it could have taken the position that Sprague had waived the contemplated excuse for the failure to timely serve the summons by not raising the excuse in the original complaint and had again waived the excuse by not raising it in opposition to the County's motion for judgment on the pleadings. The court modified its telephonic ruling to allow Sprague to file an amended complaint, *521 but limited the amendment to "the excuse relative to the statute of limitations [issue]."
Sprague's amended complaint
Sprague timely filed the combined first amended complaint and first amended petition for administrative mandamus (hereafter the amended complaint)[5] that is the subject of the instant appeal. Sprague added the following new allegations (among others) in the amended complaint relating to an excuse for Sprague's failure to timely serve the summons and complaint within the 90 day limitations period set forth in section 66499.37:
Jack Sprague, acting on behalf of himself and his children, retained Louis E. Goebel as their counsel in this matter and turned over to him all of their information related to the case;
In September 2000, Jack Sprague was regularly feeling ill and debilitated, at an increasingly more severe level, and at the end of that month he was diagnosed as suffering from "shingles;"
Shortly before October 6, 2000, Jack Sprague reviewed and signed the complaint and returned it to Goebel, and Goebel advised him it was in proper order and ready to be filed;
By October 6, 2000, Jack Sprague's physical condition "worsened to severely limit his mobility, energy, and concentration," and it "continued at a severe level through the remainder of the year 2000";
In early October 2000, Jack Sprague was the defendant in "two other quasi-criminal cases initiated by the [County] which were active and required such attention as he was able to give them";
During the period from October 6, 2000, to December 31, 2000, Jack Sprague was physically and mentally unable to participate in any stressful activity, and thus unable to participate in the instant case or the other two cases;
Goebel never advised Sprague that the summons and complaint would not be served as required by law, and Sprague never authorized Goebel to refrain from effecting such service;
Goebel was solely responsible for the failure to serve the summons on the County within 90 days of the County's decision on August 9, 2000; and
Without notice to Sprague, Goebel failed to serve the summons in a fashion consistent with the provisions of section 66499.37.
County's second motion for judgment on the pleadings
The County answered the amended complaint, again asserting the affirmative defense that the action was barred by section 66499.37. Concurrently, the County renewed its motion for judgment on the pleadings, again asserting the amended complaint failed to state facts sufficient to constitute a cause of action because the action was barred as a result of Sprague's failure to serve the summons within the 90-day period specified in section 66499.37.
In its supporting memorandum of points and authorities, the County argued that Sprague's allegations regarding Jack Sprague's disability could not overcome Sprague's failure to timely serve the summons and complaint within the 90-day period specified by section 66499.37. The County also asserted that Sprague's new allegations concerning Goebel's "mistake *522 and inadvertence" as Sprague's counsel did not constitute a basis for relief from dismissal under Code of Civil Procedure section 473, subdivision (b) (discussed, post) because that subdivision does not apply so as to extend the limitations period set forth in section 66499.37.
Sprague opposed the County's renewed motion for judgment on the pleadings, contending the County made a general appearance and waived any defect in the service of summons when it filed its answer to the complaint without taking issue with the late service of summons. Sprague also claimed that the attorney affidavit of mistake provision of Code of Civil Procedure section 473, subdivision (b) mandated relief from dismissal following Sprague's counsel's (Goebel's) acknowledged failure to timely serve the summons in compliance with section 66499.37.
April 20, 2001, the court issued a telephonic ruling granting the County's renewed motion for judgment on the pleadings. The court found that no authority supported Sprague's contention that Code of Civil Procedure section 473, subdivision (b) mandated relief from the dismissal, and the Legislature did not intend to allow such relief. The court stated that Sprague's "failure to timely serve the summons and complaint work[ed] against the public policy to ensure expeditious judicial resolution of subdivision map disputes." The court also ruled that the County did not waive its statute of limitations defense when it filed its answer to the complaint. Following oral argument, the court confirmed its telephonic ruling.
The court thereafter entered a judgment of dismissal and, on May 23, 2001, the County served Sprague with a notice of entry of judgment. Sprague's timely appeal followed.
STANDARD OF REVIEW
A defendant's motion for judgment on the pleadings is equivalent to a belated general demurrer to a plaintiffs complaint and is governed by the same standard of appellate review that applies to such a demurrer. (See Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 989, 94 Cal.Rptr.2d 643.) On a plaintiffs appeal from a judgment on the pleadings (as is the case here), the appellate court thus accepts as true all properly pleaded factual allegations (but not contentions, deductions or conclusions of fact or law) in the challenged complaint and gives them a liberal construction. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516, 101 Cal.Rptr.2d 470,12 P.3d 720; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2001) ¶ 8:148, p. 8-86.3 (rev. # 1 2002).) A trial court's order granting a defendant's motion for judgment on the pleadings "resolves a mixed question of law and fact that is predominantly one of law, viz., whether or not the factual allegations that the plaintiff makes are sufficient to constitute a cause of action. [Citation.]" (Gerawan Farming, Inc., supra, 24 Cal.4th at p. 515, 101 Cal.Rptr.2d 470, 12 P.3d 720.) Accordingly, in evaluating the propriety of a grant of judgment on the pleadings, our review is de novo, and we independently determine whether the complaint states facts sufficient to constitute a cause of action. (Ibid.)
"A trial court's order granting or denying relief under [Code of Civil Procedure] section 473, subdivision (b) is reviewed on appeal for abuse of discretion." (Brown v. Williams (2000) 78 Cal.App.4th 182, 186, 92 Cal.Rptr.2d 634, citing Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 787-790, 59 Cal.Rptr.2d 332.)
*523 DISCUSSION
I. SERVICE OF SUMMONS PROVISION OF SECTION 66499.37
Sprague contends the court erroneously ruled that the 90-day service of summons requirement in section 66499.37 is a statute of limitations. We reject this contention and follow well-reasoned case law that holds the Legislature intended the mandatory 90-day service of summons requirement in section 66499.37 to operate as a statute of limitations.
"`It is axiomatic that in the interpretation of a statute where the language is clear, its plain meaning should be followed.' [Citation.]" (Kirk v. County of San Luis Obispo (1984) 156 Cal.App.3d 453, 459, 202 Cal.Rptr. 606.)
The statute in question here, section 66499.37 provides in part:
"Any action or proceeding to attack, review, set aside, void or annul the decision of [a] ... legislative body concerning a subdivision ... shall not be maintained by any person unless such action or proceeding is commenced and service of summons effected within 90 days after the date of such decision. Thereafter all persons are barred from any such action or proceeding [.] Any such proceeding shall take precedence over all matters of the calendar of the court except criminal, probate, eminent domain and forcible entry and unlawful detainer proceedings."[6] (Italics added.)
In section 66499.37, which is part of the Subdivision Map Act (§ 66410 et seq.),[7] "the Legislature expressly required not only that the action be commenced within 90 days, but also that service of summons be effected within the same 90 days." (Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1108, 85 Cal.Rptr.2d 639, italics added.) The Maginn court explained that "[t]he statutory language makes clear that the service requirement is mandatory. Section 66499.37 provides that any action to which it applies `shall not be maintained' unless the commencement and service requirements are met. It adds that, `[thereafter all persons are barred from any such action....'" (Ibid., italics added.)
The Maginn court referred to section 66499.37, including the provision requiring service of summons within 90 days of the challenged decision, as a statute of limitations, and explained that the general rule of narrowly interpreting statutes of limitations does not apply to an unambiguous statute like section 66499.37 that reflects a policy judgment by the Legislature that "litigation involving the Subdivision Map Act must be resolved as quickly as possible consistent with due process." (Maginn, supra, 72 Cal.App.4th at pp. 1109-1110, 85 Cal.Rptr.2d 639, citing Hensler v. City of Glendale (1994) 8 Cal.4th 1, 23, 32 Cal. Rptr.2d 244, 876 P.2d 1043.[8])
*524 The Court of Appeal in the Kirk case also referred to section 66499.37 as a statute of limitations.[9] (Kirk v. County of San Luis Obispo, supra, 156 Cal.App.3d at p. 459, 202 Cal.Rptr. 606.)
In Presenting Jamul v. Board of Supervisors (1991) 231 Cal.App.3d 665, 282 Cal. Rptr. 564, this court noted the legislative declaration of calendar preference in the last sentence of section 66499.37[10] and explained that the "broad language" the Legislature employed in section 66499.37 governs "[a]ny action or proceeding" challenging a subdivision-related decision of a legislative or advisory entity, or any proceeding, act or determination preceding such a decision:
"Highlighted by a legislative declaration of calendar preference, this provision `manifests "a patent legislative objective that the validity of ... decisions of a local legislative body, or its advisory agency, be judicially determined as expeditiously as is consistent with the requirements of due process of law." [Citations.] ... [¶] The broad language the Legislature employed within section 66499.37 was specifically designed to include any challenge, regardless whether procedural or substantive in character, to any subdivision-related decision of either a legislative or advisory entity, or any of the necessary precedent proceedings, acts or determinations pursued before the making of the challenged decision. [Citation.]" (Presenting Jamul v. Board of Supervisors, supra, 231 Cal. App.3d at pp. 670-671, 282 Cal.Rptr. 564, italics added.)
Because the language of section 66499.37 is clear and unambiguous, we follow the foregoing California case authorities and hold that the 90-day service of summons requirement in section 66499.37 is mandatory and operates as a statute of limitations. To hold otherwise, this court would have to disregard the plain language of section 66499.37 providing that an action governed by this section "shall not be maintained ... unless ... service of summons [is] effected within 90 days after the date of [the subject] decision." Under well-established canons of statutory interpretation, we must follow the plain meaning of clear statutory language such as the foregoing service of summons limitation provision of section 66499.37. (Kirk v. County of San Luis Obispo, supra, 156 Cal.App.3d at p. 459, 202 Cal.Rptr. 606.)
II. WAIVER
Relying on this court's decision in Kriebel v. City Council (1980) 112 Cal. App.3d 693, 169 Cal.Rptr. 342, Sprague contends that the 90-day service of summons requirement in section 66499.37 (discussed, ante) merely imposes "a requirement that [a] summons be served," and that the County made a general appearance and waived any defect in Sprague's untimely service of summons when it filed *525 an answer to the complaint without "[taking] issue with the late service." We conclude the Kriebel case is distinguishable and reject Sprague's contentions.
In Kriebel, a group of homeowners in La Jolla filed a petition for writ of mandate to challenge a decision by the city council of the City of San Diego approving a planned residential development and tentative subdivision map for a 46-unit project. (Kriebel v. City Council, supra, 112 Cal.App.3d at p. 697, 169 Cal.Rptr. 342.) The summons on the petition was not issued or served at any time, and thus it was undisputed that the homeowners failed to comply with the 180-day limitations period then provided by section 66499.37. (Kriebel v. City Council, supra, at p. 699, 169 Cal.Rptr. 342.) The trial court ruled that the homeowners' first cause of action in the writ petition, which alleged the city had failed to follow the requirements of the Subdivision Map Act, was barred because the homeowners had failed to serve the summons on the petition within the limitations period specified in section 66499.37.[11] (Kriebel v. City Council, supra, at p. 698,169 Cal.Rptr. 342.)
On appeal, the homeowners in Kriebel contended that the respondents had appeared generally in the action, within the 180-day limitations period, by (1) executing and permitting to be filed a stipulation extending the time for the hearing on the writ petition to a date that was two days after the expiration of the 180-day period, and (2) by filing their answers to the petition. (Kriebel v. City Council, supra, 112 Cal.App.3d at p. 699, 169 Cal.Rptr. 342.) Referring to section 66499.37 in a heading as "THE SUBDIVISION MAP ACT STATUTE OF LIMITATIONS," this court concluded that the trial court's dismissal of the homeowners' first cause of action was erroneous because "the execution and filing of the stipulation extending time and the filing and service of the answer constitute[d] general appearances by respondents which waived any irregularities as to issuance or service of summons or other process." (Kriebel v. City Council, supra, at p. 700, 169 Cal.Rptr. 342.) In support of this holding, we explained (among other things) that "[a] written stipulation extending the time to appear, answer, demur or otherwise plead reflects an intent to submit to the jurisdiction of the court and constitutes a general appearance. [Citation.]" (Id. at p. 699, 169 Cal. Rptr. 342.) We also emphasized that "the parties stipulated to a continuance of the hearing on the writ. No reservation of any right to contest jurisdiction was stated." (Ibid.)
For purposes of the waiver issue raised in the instant appeal, it is important to note that the respondents in Kriebel made their general appearance and thereby submitted to the jurisdiction of the court by filing both their answer and the executed stipulation within the applicable limitations period provided by former section 66499.37. In other words, the Kriebel respondents generally appeared before the action against them was time-barred under section 66499.37.
The Kriebel case is distinguishable. Here, the County, unlike the respondents in Kriebel, made its initial appearance long after the applicable 90-day limitations period now provided in section 66499.37 expired. The record shows that the County denied Sprague's subdivision map application on August 9, 2000, which is thus the date the 90-day limitations period for commencement of action and service of summons began to run under section 66499.37. That period expired on November 7, 2000. Although the complaint was filed in a timely *526 manner on October 6, 2000, Sprague did not serve the County with a copy of the summons and complaint until December 4, 2000, almost a month after the statutory 90-day time limit for such service expired on November 7. The County filed its answer to the complaint on January 3, 2001, almost two months after the statutory 90day limitations period expired. The record thus shows that Sprague's action was already time-barred under section 66499.37 when the County initially appeared by filing its answer to Sprague's complaint.
We note that although the County's original answer did not plead a statute of limitations affirmative defense under section 66499.37, the County thereafter filed, with leave of court, an amended answer that asserted that defense. Sprague did not oppose the County's application for leave to amend its answer and does not challenge on appeal the court's order granting such leave. In any event, there is no showing that the amendment of the answer unduly prejudiced Sprague. The limitations period under section 66499.37 had already expired when the County filed its amended answer, and there is no indication in the record that any discovery had been conducted.
We reject Sprague's contention that the legal effect of the 90-day service of summons provision in section 66499.37 (discussed, ante) merely imposes "a requirement that [a] summons be served." For reasons already discussed, we have concluded that this provision also constitutes a statute of limitations.
We also reject Sprague's contention that the County waived the right to challenge Sprague's untimely service of summons when it answered the complaint without challenging that late service. A trial court has discretion to permit the amendment of an answer to raise a statute of limitations defense in the furtherance of justice. (Davenport v. Stratton (1944) 24 Cal.2d 232, 252, 149 P.2d 4; accord, Vedder v. Superior Court (1967) 254 Cal.App.2d 627, 629, 62 Cal.Rptr. 222; see also 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 1135, p. 591.) Sprague does not contend on appeal that the court abused its discretion by granting the County leave to plead the statute of limitations defense in its amended answer. For reasons already discussed, Sprague's reliance on Kriebel, supra, 112 Cal.App.3d at page 699, 169 Cal.Rptr. 342, for the proposition that the County "waived any defect in the service of summons" is unavailing because Kriebel is distinguishable.
III. ESTOPPEL
Sprague claims that the County, by filing its original answer without "taking issue with jurisdiction" in this matter, is estopped to assert Sprague's failure to timely serve the summons as a defense. In support of this contention, Sprague quotes Davenport v. Stratton, supra, 24 Cal.2d 232, 243, 149 P.2d 4, for the proposition that "[e]stoppel may be defined to be a bar by which a man is precluded from denying a fact in consequence of his own previous action which has led another to so conduct himself that, if the truth were established, that other would suffer. [Citation.]" Apparently referring to the County's successful ex parte application for leave to amend its answer to plead the statute of limitations defense under section 66499.37, Sprague then asserts that "[i]t is inconsistent for the County to have waived the service of summons requirement by filing the initial Answer, and then to seek ex parte relief to surreptitiously lay the groundwork for nullification of that waiver...."
These claims and assertions are unavailing. Sprague cannot reasonably argue *527 that the failure to serve the summons within the 90-day time frame required by section 66499.37 was in reliance on the County's act of answering the complaint without raising the affirmative defense that the action was barred under section 66499.37 for failure to timely serve the summons. In fact, Sprague pleaded in the first amended complaint that the untimely service of summons resulted from the fact that Jack Sprague was physically and mentally unable to participate in any stressful activity, and thus unable to participate in the instant case or the other two cases.
To the extent Sprague claims the County should be estopped on the ground it waived the 90-day service of summons requirement, we have concluded for reasons already discussed that the County did not waive the right to challenge Sprague's untimely service of summons. Accordingly, we reject Sprague's estoppel claims.
IV. CODE OF CIVIL PROCEDURE SECTION 178, SUBDIVISION (B)
Sprague also contends the court's "insistence" on referring to the 90-day service of summons requirement of section 66499.37 as a statute of limitations blinded it to the provisions of Code of Civil Procedure section 473, subdivision (b), which requires a trial court to vacate a dismissal caused by attorney mistake. We reject this contention.
In 1988, the Legislature amended Code of Civil Procedure section 473 to mandate relief from a default judgment resulting from an attorney's mistake, inadvertence, surprise, or neglect, provided a timely application for relief was accompanied by the attorney's sworn affidavit of fault. (Stats. 1988, ch. 1131, § 1, p. 3631; 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 195, p. 701.)
In 1992, Code of Civil Procedure section 473 was amended, effective January 1, 1993, to add "dismissal" to the matters for which relief is either discretionary or mandatory under that section. (Stats.1992, ch. 876, § 4, pp. 4071-072; Castro v. Sacramento County Fire Protection Dist. (1996) 47 Cal.App.4th 927, 930, 55 Cal.Rptr.2d 193 (Castro).) "The purpose of this amendment was `to put dismissed plaintiffs on the same footing as defaulted defendants.' [Citation.]" (Castro, supra, 47 Cal.App.4th at p. 930, 55 Cal.Rptr.2d 193.)
Code of Civil Procedure section 473, subdivision (b), as amended, currently provides in part that a trial court "shall" vacate "any ... default judgment or dismissal" against a party resulting from an attorney's mistake, inadvertence, surprise, or neglect when the party's application for relief under that section is accompanied by the attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.[12]
In Castro, supra, 47 Cal.App.4th 927, 55 Cal.Rptr.2d 193, the issue presented was whether Code of Civil Procedure section 473, subdivision (b), as amended in 1992, permits relief from a dismissal entered against a plaintiff whose attorney failed to comply with the applicable statute of limitations through the attorney's mistake, inadvertence, *528 surprise or neglect. (Castro, supra, 47 Cal.App.4th at p. 928, 55 Cal. Rptr.2d 193.) Castro involved a personal injury action against a county fire protection district. The plaintiffs counsel, allegedly due to a calendaring error on his part, failed to file the complaint within six months of notice of the rejection of the plaintiffs government tort claim as required by section 945.6, subdivision (a)(1). The trial court sustained without leave to amend the fire district's demurrer, and entered a judgment of dismissal. (Castro, supra, 47 Cal.App.4th at p. 929, 55 Cal. Rptr.2d 193.) The Court of Appeal affirmed and held that the extension of mandatory relief for dismissals resulting from attorney error now codified in Code of Civil Procedure section 473, subdivision (b) is not available when the dismissal is for failure to comply with the applicable statute of limitations. (Castro, supra, 47 Cal. App.4th at p. 930, 55 Cal.Rptr.2d 193.)
The Castro court reasoned that "the Legislature did not intend by its `noncontroversial' 1992 amendments to section 473 to ... create a loophole through which a plaintiff may escape the bar of the statute of limitations. Statutes of limitations are a fundamental aspect of our legal system. They are `"vital to the welfare of society and are favored in the law."' [Citation.] `[S]tatute[s] of limitations traditionally play[ ] a valid role in laying stale causes to rest and providing finality and repose without the need for any court adjudication. [Citations.]' [Citation.] Had the Legislature intended to effect such a radical change in legal procedure as mandatory relief from the operation of the statute of limitations, it would have expressly said so in unambiguous language." (Castro, supra, 47 Cal.App.4th at p. 933, 55 Cal. Rptr.2d 193.)
In support of its decision, the Castro court followed the decision in Hanooka v. Pivko (1996) 22 Cal.App.4th 1553, 1563, 28 Cal.Rptr.2d 70, which held that the extension of mandatory relief for dismissals resulting from attorney error under Code of Civil Procedure section 473 is not available when the judgment of dismissal is for failure to comply with the medical malpractice statute of limitations set forth in section 340.5 of that code. (Castro, supra, 47 Cal.App.4th at p. 933, 55 Cal.Rptr.2d 193.) Citing Kupka v. Board of Administration (1981) 122 Cal.App.3d 791, 794-795, 176 Cal.Rptr. 214, the Hanooka court explained that statutes of limitations are generally regarded as inflexible and are enforced regardless of personal hardship, and although some limitations statutes provide for an extension of the limitations period on a showing of good cause, "[w]here the statute lacks an explicit provision for extension,' ... it must be inferred the Legislature did not intend to permit relief on grounds of good cause or under section 473. [Citation.]'" (Hanooka v. Pivko, supra, 22 Cal.App.4th at p. 1561, 28 Cal.Rptr.2d 70.)
We follow the Castro and Hanooka decisions, which are well-reasoned. As we have already discussed, the statute at issue in the instant appeal, section 66499.37, "provides that any action to which it applies `shall not be maintained' unless the commencement and service requirements are met." (Maginn, supra, 72 Cal.App.4th at p. 1108, 85 Cal.Rptr.2d 639, italics added.) That section unequivocally provides that "[thereafter all persons are barred from any such action...." (§ 66499.37.) The language of section 66499.37 contains no express provision for an extension of the limitations period set forth therein. We hold that the extension of mandatory relief for dismissals resulting from attorney error under Code of Civil Procedure section 473, subdivision (b) is not available when the judgment of dismissal is for failure *529 to comply with the 90-day limitations provisions for commencement of suit and service of summons set forth in section 66499.37.
V. PREJUDICE
Last, Sprague complains that the court's failure to conduct judicial review of the subject residential development project on its merits was erroneous and "sorely prejudiced" Sprague. Citing Hensler v. City of Glendale, supra, 8 Cal.4th 1, 32 Cal.Rptr.2d 244, 876 P.2d 1043, Sprague maintains that "the real purpose of [section 66499.37's] limitations was to limit the time for `NIMBYs' [[13]] and other opposition activists to proceed to attack approvals of subdivision maps and housing projects, not for use as a vehicle for preventing judicial review of denial of such projects[.]" (Original boldface, italics added.)
Sprague appears to contend that the limitations provisions of section 66499.37 do not apply to a denial of an application of a subdivision map because the purpose of that statute is to provide finality where such an application has been approved. We reject this contention.
Existing case law has applied the 90-day limitations provisions of section 66499.37 to the denial of subdivision maps. In the Maginn case, which involved a city's denial of the plaintiffs' application for a tentative parcel map for a proposed subdivision, the Court of Appeal affirmed a judgment of dismissal that the trial court entered after sustaining the city's demurrer on statute of limitations grounds under section 66499.37 where the plaintiffs failed to serve the summons until two days after the 90-day limitations period for such service expired. (Maginn, supra, 72 Cal. App.4th at pp. 1104, 1108, 85 Cal.Rptr.2d 639.) In Soderling v. City of Santa Monica (1983) 142 Cal.App.3d 501, 191 Cal. Rptr. 140, the defendant city denied final map approval for several condominium conversion projects after the plaintiff developer failed to meet certain repair and improvement conditions imposed by the city when it approved the earlier tentative maps for the projects. (Id. at pp. 503-504, 191 Cal.Rptr. 140.) More than two years after the city imposed the subject conditions, the developer brought suit to compel certain city officials to approve the final maps. (Id. at pp. 503, 505, 191 Cal.Rptr. 140.) The Court of Appeal affirmed the judgment denying the developer's petitions for writs of mandate, concluding that his claims were time-barred under section 66499.37. (Soderling v. City of Santa Monica, supra, at p. 505, 191 Cal.Rptr. 140.)
Furthermore, as already discussed, section 66499.37 applies by its own terms to "[a]ny action or proceeding to attack, review, set aside, void or annul the decision of ... [a] legislative body concerning a subdivision...."[14] (Italics added.)
DISPOSITION
The judgment of dismissal is affirmed.
WE CONCUR: McINTYRE and McCONNELL, JJ.
NOTES
[1] All further statutory references are to the Government Code unless otherwise specified.
[2] Government Code section 66499.37 provides in full: "Any action or proceeding to attack, review, set aside, void or annul the decision of an advisory agency, appeal board or legislative body concerning a subdivision, or of any of the proceedings, acts or determinations taken, done or made prior to such decision, or to determine the reasonableness, legality or validity of any condition attached thereto, shall not be maintained by any person unless such action or proceeding is commenced and service of summons [is] effected within 90 days after the date of such decision. Thereafter all persons are barred from any such action or proceeding or any defense of invalidity or unreasonableness of such decision or of such proceedings, acts or determinations. Any such proceeding shall take precedence over all matters of the calendar of the court except criminal, probate, eminent domain and forcible entry and unlawful detainer proceedings." (Italics added.)
[3] Because this action was dismissed after the court granted the County's motion for judgment on the pleadings, the factual background is taken from Sprague's operative first amended complaint and limited primarily to the facts that relate to the County's statute of limitations defense, which is the subject of the instant appeal.
[4] Sprague's complaint alleged claims for administrative mandamus, ordinary mandamus, inverse condemnation, "arbitrary and unlawful government action," violation of federal civil rights, declaratory relief and injunctive relief.
[5] The amended complaint alleged the same seven causes of action set forth in the original complaint (discussed, ante).
[6] The full text of section 66499.37 is set forth in footnote 2, ante.
[7] "Effective March 1, 1975, . . . [the] Subdivision Map Act was placed in the Government Code ([§ ] 66410 et seq.) as Division 2 (Subdivisions) of Title 7 (Planning and Zoning)." (4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, § 44, p. 259.) Section 66499.37 is found in article 3 (Judicial Review) of chapter 7 (Enforcement and Judicial Review) of division 2 of that code. (36D West's Ann. Gov.Code (1997 ed.) § 66499.37, p. 499.)
[8] In Hensler v. City of Glendale, supra, 8 Cal.4th at page 23, 32 Cal.Rptr.2d 244, 876 P.2d 1043, the California Supreme Court concluded that "`[t]he "patent legislative objective" of [section 66499.37] is to ensure that judicial resolution of Subdivision Map Act disputes occurs "as expeditiously as is consistent with the requirements of due process of law. "`[Citation.]"
[9] The pertinent language of the former version of section 66499.37 at issue in the Kirk case was identical to that of the current statute with the exception that it provided for a 180-day limitations period for commencement of suit and service of summons. (See Kirk v. County of San Luis Obispo, supra, 156 Cal.App.3d at p. 459, fn. 4, 202 Cal.Rptr. 606.) The Kirk court noted that "[s]ection 66499.37 was amended in 1980 to reduce the time from 180 days to 90 days." (Ibid.) It is thus clear the Legislature amended section 66499.37 to cut in halffrom 180 days to 90 daysthe time for effecting service of summons in cases (such as the instant case) governed by that section.
[10] As already noted, the last sentence of section 66499.37 provides: "Any such proceeding shall take precedence over all matters of the calendar of the court except criminal, probate, eminent domain and forcible entry and unlawful detainer proceedings." (Italics added.)
[11] See footnote 9, ante.
[12] Code of Civil Procedure section 473, subdivision (b) provides in part: "[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any ... resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect."
[13] We presume the term "NIMBY" means "Not In My Back Yard."
[14] See text of section 66499.37 at footnote 2, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261268/ | 223 F.Supp. 871 (1963)
LOWRY & CO., Inc., Libellant,
v.
S.S. NADIR, her engines, boilers, etc.
v.
Faik ZEREN, Claimant-Respondent.
United States District Court S. D. New York.
November 18, 1963.
Bigham, Englar, Jones & Houston, New York City, for libellant, John W. R. Zisgen, New York City, of counsel.
Lester M. Levin, New York City, for respondent.
COOPER, District Judge.
This is a motion, pursuant to 9 U.S.C. § 3, for an order staying libellant from proceeding in this action until the outcome of an arbitration of its claims in Hamburg, Germany.
Respondent's claim for arbitration of this dispute arises from a charter party agreement between respondent Faik Zeren and August Topfer & Co. ("Topfer"), the German charterer. The latter is not a party to the instant action.
The charter party dated September 19, 1962, provided for a Turkish flag vessel to carry sugar from Turkey to the United *872 States. The cargo was delivered to the S.S. Nadir in Turkey by Topfer, who received two bills of lading covering the cargo from the respondent.
By written contract, dated August 17, 1962, Topfer sold the cargo to libellant, who received a copy of the charter party on November 2, 1962 and the bills of lading on November 8, 1962. The bills were "charter party" bills of lading, and were endorsed in blank by Topfer. The sugar had already been paid for by libellant pursuant to advice from Topfer received on November 6, 1962, that the documents specified in the sales contract (invoices, bills of lading and insurance certificates) were ready for delivery.
The shipment of sugar was found to be seriously damaged by rat excreta upon discharge at Baltimore, Maryland and New York, New York.
The libel involved here claims $300,000.00 damages and was filed on February 19, 1963. The respondent vessel was subsequently attached and was discharged from attachment on April 2, 1963.
The charter party between Topfer and respondent contains this arbitration clause:
"32) Arbitration to be settled in Hamburg as follows: All disputes arising out of this contract shall, unless the parties agree forthwith on a single Arbitrator, be referred to the final Arbitrament of two Arbitrators carrying on business in Germany, who be engaged in the shipping and/or import trades, one to be appointed by each of the parties, with power to such Arbitrators to appoint an Umpire. If defendant should not nominate an Arbitrator within one month after having been requested to do so, same will be nominated by the Chamber of Commerce in Hamburg. If no agreement can be reached by such two Arbitrators regarding the Umpire, the latter will also be nominated by the Chamber of Commerce in Hamburg. The decision by such Arbitrators to be final. Any claim must be made in writing and claimants Arbitrator appointed within six months of final discharge and where this provision is not complied with, the claim shall be deemed to be waived and absolutely barred.
"No award shall be questioned or invalidated on the ground of any of the Arbitrators not being qualified as above, unless objection to his acting be taken before the award is made. Arbitration to be made up in Hamburg in accordance with German Law."
The two bills of lading issued to Topfer, and now held by libellant, were "charter party" bills; that is, they were meant for use with charter parties. The bills of lading further provide "all of the terms, conditions, liberties and exceptions of the Charter Party are herewith incorporated." The charter party referred to is indicated in the freight payment clause, providing that freight shall be paid "as per Charter-Party, dated 19-9-62."
Respondents contend that by virtue of the clause in the bills of lading incorporating the terms of the charter party, the libellants, as holders of the bills, are bound by the arbitration clause in the charter party, and must therefore, arbitrate this claim in accordance with that clause.
Libellant contends that, as a stranger to the charter party, the incorporation clause of the bills of lading is insufficient to bind it to arbitrate this dispute. The charter party provision, it is claimed, does not purport to require arbitration of any claims other than those between Topfer, the charterer, and respondent, Faik Zeren, the owner.
The court cannot agree either with libellant's interpretation of the documents here in issue or with libellant's reading of the applicable cases.
The leading case on this subject is Son Shipping Co., Inc. v. DeFosse & Tanghe, 199 F.2d 687 (2d Cir. 1952). The facts there are quite similar to those at bar. The litigants in Son were the *873 ship owner and the charterer, the latter being joined by the ultimate consignee in demanding arbitration of the claim.
In the Son case, as in the case at bar, there was a charter party between the charterer and the ship owner containing an agreement to arbitrate all disputes. The bills of lading, which were held by the Palestine Electric Corp., contained a clause incorporating all the terms of the charter party. The court stated, at p. 688 of 199 F.2d:
"Where terms of the charter party are, as here, expressly incorporated into the bills of lading they are a part of the contract of carriage and are binding upon those making claim for damages for the breach of that contract just as they would be if the dispute were between the charterer and the shipowner."
Libellants contend that the position of Palestine Electric Corp., the bill of lading holder in the Son case, was not presented with sufficient force or clarity to enable the Circuit Court to determine the applicability of the charter party arbitration clause to the ultimate consignee of the cargo. It is contended that the controversy involved in Son was between the shipowner and the charterer.
With this the Court disagrees. Not only does the order of the court clearly bind Palestine Electric Corp. to the decision rendered, but the language quoted, supra, could be directed to none other than the ultimate consignee of the cargo. Further, if the Son case represented merely a dispute between the charterer and the shipowner, there would be no need to sue on the bill of lading. Clearly, both parties would be bound by the terms of the charter party. Suffice it to say that the charterer in the Son case (DeFosse and Tanghe) made the demand for arbitration on behalf of Palestine Electric Corp. A careful reading of the case indicates that the charterer was a mere nominal party to the action.
Both parties here rely on certain language found in Chilean Nitrate Sales Corp. v. The Nortuna, 128 F.Supp. 938 (S.D.N.Y.1955) to support their respective arguments. A close reading of that decision, however, leads us to the conclusion that the facts of that case are quite distinguishable. There, the arbitration clause provided for arbitration of all disputes "between Owner and Charterer." In the case at bar, the arbitration clause does not mention "owner or charterer" but rather speaks in terms of "parties" and "defendant." Although the court cites Son with approval, the issue in the Nortuna case was whether the bill of lading holder was a subsidiary of the charterer, and therefore bound by the charter party. The incorporation of the charter party clauses into the bill of lading was not in issue.
There has been some space devoted by the parties in their papers to a discussion of the relationship between libellant and August Topfer & Co., the charterer. From the papers submitted upon this motion, the court is satisfied that there was not that degree of inter-company consanguinity which was found to be controlling in the Nortuna case.
Libellant refers this court to the English case of The Elizabeth H, 1 Lloyd's List Law Reports 172 (1962), where the court refused to stay the proceeding pending arbitration. In that case, as in Chilean Nitrate Sales Corp. v. The Nortuna (supra), the arbitration clause specifically mentioned the "owner" and the "charterer." In distinguishing the Son case, the court ruled at p. 178:
"The wording of the arbitration clause in the charter-party which was specifically drawn to the attention of the Circuit Court did not, as I have said, include `consisting of one arbitrator to be appointed by the owner and the other one by the charterer',"
The implication advanced is that if these words had been called to the attention of the court, the Son case might have been decided differently.
This distinction, implicit in Chilean Nitrate Sales Corp. v. The Nortuna and explicit in The Elizabeth H, is quite significant. Where the words "owner" and "charterer" are used in the *874 arbitration clause, it is indeed difficult to bind to that clause one who is not a signatory to the charter party. Where, however, the words used indicate that others, not parties to the charter party, might be compelled to arbitrate their claims, an opposite result comes more readily. In the instant case, the words "parties" and "defendant" are used in the arbitration clause. While we do not think that this distinction is determinative in every case, (See, e. g., Son Shipping Co. Inc. v. DeFosse & Tanghe, supra) it is, at least, an indication of the applicability of the terms of the charter party arbitration clause to the ultimate consignee of the cargo.
The Elizabeth H, moreover, is not highly persuasive, in light of the relatively unfavorable attitude toward arbitration held by the English courts. Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978 (2d Cir. 1942).
Another distinction worth noting was recognized by this court in United States v. Cia. Naviera Continental S.A., 202 F. Supp. 698 (S.D.N.Y.1962) and Southwestern Sugar & Molasses Company v. The Eliza Jane Nicholson, 126 F.Supp. 666 (S.D.N.Y.1954). In those cases, the court refused to compel the bill of lading holder to arbitrate its claims, pursuant to the arbitration clause in the charter party. The court found that the bills of lading, although attempting to incorporate the terms of the charter party, failed to identify the charter party with sufficient clarity. The blanks on the face of the bill of lading which referred to the charter party were left open. The court felt it unfair to bind the holders of the bills of lading to clauses contained in a charter party so unsatisfactorily identified. In the case before us, both bills of lading clearly identify the charter party under which the cargo was shipped by referring to it specifically by date.
In addition, the purchase contract between libellant and the charterer, August Topfer & Co., provided that charter party bills of lading were to be accepted and that any disputes between them were to be settled by arbitration in Hamburg, Germany. Surely these facts, in toto, negate any claim of surprise or unfairness raised by libellant.
The case of Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), relied upon heavily by libellant, is inapposite to the case at bar. There, the court was interpreting the Securities Act of 1933. In striking down an arbitration clause in a margin agreement, the court said at p. 438 of 346 U.S., at p. 188 of 74 S.Ct., 98 L.Ed. 168:
"Recognizing the advantages that prior agreements for arbitration may provide for the solution of commercial controversies, we decide that the intention of Congress concerning the sale of securities is better carried out by holding invalid such an agreement for arbitration of issues arising under the [Securities] Act."
It seems clear that the Supreme Court was interested in protecting the unique remedy given to the investor by the Act and in keeping inviolate the right to pursue that remedy in a court of law. We do not think that the excellent reasoning of Wilko v. Swan can be applied to a suit in admiralty by extending its interpretation of the Securities Act of 1933 to the Carriage of Goods by Sea Act.
The enforceability of the arbitration clause in Germany has been put in issue here. Both parties have gone to great lengths to provide this court with opinions from German courts and German counsel. Suffice it to say, this court, while it cannot predict what a German court will rule in this situation, considers it likely that the arbitration clause will be found enforceable under the applicable German law. See affidavit of Dr. jur Ernst Heinsen and his translation of Versicherungsrecht Vol. 1960 pp. 307, 308 attached to the moving papers.
Accordingly, libellant is stayed from proceeding in this action pending arbitration of the claims here presented.
Settle order on five (5) days notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261286/ | 131 Cal.Rptr.2d 639 (2003)
106 Cal.App.4th 1332
The PEOPLE, Plaintiff and Respondent,
v.
Fernando BANUELOS, Defendant and Appellant.
No. D039050.
Court of Appeal, Fourth District, Division One.
March 13, 2003.
Rehearing Denied April 3, 2003.
Review Denied June 11, 2003.[*]
*640 Scott M. Rand, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steven T. Oetting and Jonathan *641 J. Lynn, Deputy Attorneys General, for Plaintiff and Respondent.
HUFFMAN, Acting P.J.
A jury convicted Fernando Banuelos of assault with a deadly weapon by means of force likely to produce great bodily injury. (Pen.Code,[1] § 245, subd. (a)(1).) The jury also found true allegations that Banuelos personally used a deadly weapon in the commission of the assault (§ 1192.7, subd. (c)(23)), and personally inflicted great bodily injury upon the victim, who was not an accomplice of that offense (§ 12022.7, subd. (a)). The trial court sentenced Banuelos to a total prison term of five years, consisting of the lower term of two years for the assault with a deadly weapon, and three years consecutive for the personal infliction of great bodily injury enhancement.
Banuelos appeals, contending the trial court prejudicially erred when it instructed the jury with the "Corona instruction"[2] contained within CALJIC No. 17.20 which permitted the jury to find personal infliction of great bodily injury even where the evidence was insufficient to determine which person actually inflicted such injury. He also asserts that even if a Corona instruction is a correct statement of the law, the prosecution failed to prove the impossibility of determining who inflicted the injury and the instruction as given was misleading and did not properly instruct the jury. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 16, 2000, 16-year-old Peter A. was at a party and saw Banuelos, who he knew had dated a friend of his exgirlfriend. At around 10:00 p.m., "some guy" approached Peter, telling him that he was going to fight Banuelos. Peter walked with the man outside the party house to another location, where another person told Peter he was the one that was going to fight him, claiming Peter had said "Fuck Logan" and "Fuck all of them," apparently in reference to a Logan area street gang. The man began to punch Peter in the head and body, along with about seven other men, including Banuelos.
When the beating stopped and Peter saw Banuelos pull out a small wooden bat from his pants, he ran down the street followed by Banuelos and the others. Peter ran up some stairs at an apartment building and the group stopped at the bottom waiting for him. They demanded Peter come downstairs because he was going to fight with "another guy." When Peter eventually came down the stairs, Banuelos hit him in the right jaw with the bat, knocking him down. While Peter was on the ground, the others started socking and kicking him all over his body. Although Peter had his eyes closed most of the time and used his arms to shield himself, he noticed Banuelos additionally hitting him on his shoulder. Peter also felt an object strike his head and heard Banuelos say, "Fuck your life." At some point, the assailants left and Peter felt pain on the top of his head and his face.
Peter was taken home and then to the hospital where he spent a day and a half due to injuries suffered in the attacks. In addition to numerous bruises on his back and arms, Peter had two cuts on his head that required staples to close, and a broken *642 jaw that required surgery and was wired shut for four months.
Although Peter had talked with the police several times after the incident, he originally denied knowing any of his assailants, merely saying he had been jumped by a group of 10 Hispanic males, who punched and kicked him. After Peter moved to a new address and had changed schools, he finally identified Banuelos as one of his assailants and stated he had had a bat during the attack. Peter was afraid to give this information earlier because Banuelos knew where he and his family had lived before the move.
At trial, Peter testified to the above facts. The woman who had the party on December 16, 2000, also testified in the prosecution case. When she saw Peter and Banuelos walking away from her yard with some other guys following them that night, she went outside to watch what was happening. When she saw Peter followed by the others run further away, she moved to where she could see and witnessed Banuelos hitting Peter with his hands as Peter was lying down. Banuelos was yelling at Peter not to disrespect his girlfriend or him. When Banuelos stopped, one of the other men in the group tossed a rock at Peter's head.
A woman who lived at the apartments where the fight occurred testified that after hearing a loud noise that night, she looked outside to see a group of about 10 guys talking to another guy on the stairs. When the guy finally went down the stairs, a man in a black leather jacket, who looked like he had something in his hand, hit the man and she could hear the impact of the hit from her apartment. The woman also saw several other men pick things up and hit the man, including one man throw a rock that hit him.
A detective that investigated the incident related Peter's various versions of the fight before identifying Banuelos as one of the attackers. The detective also interviewed Banuelos after his arrest. Banuelos eventually told the detective he had been in a one-on-one fight with Peter for disrespecting his girlfriend, and that he had punched him in the face before continuing to hit him with his hands when he fell to the ground. Banuelos recalled he was wearing a black leather jacket that night.
The trauma surgeon who treated Peter at the hospital testified he could not tell exactly what instrument or object caused the broken jaw or any other injury to Peter's head.
DISCUSSION
I
SECTION 12022.7, SUBDIVISION (a), CORONA AND CALJIC NO. 17.20
Banuelos contends the trial court prejudicially erred by instructing the jury with the "Corona instruction" contained within CALJIC No. 17.20 which permits a jury to find personal infliction of great bodily injury even where the evidence is insufficient to determine who actually inflicted such injury. By such assertion, Banuelos is essentially asking this court to revisit our decision in Corona, supra, 213 Cal.App.3d 589, 261 Cal.Rptr. 765 and find that the group beating portion of CALJIC No. 17.20 added in 1999 based on our holding is contrary to the plain language of section 12022.7 and the holding in the California Supreme Court case of People v. Cole (1982) 31 Cal.3d 568, 183 Cal.Rptr. 350, 645 P.2d 1182 (Cole), and that it unconstitutionally shifts the burden of proof so as to make the defendant liable for proving he did not inflict an injury that occurs in a group context. Having reconsidered *643 our decision in Corona, we disagree with Banuelos's arguments and find Corona correctly interprets the law for group beatings.
Former section 12022.7 provided for a three-year enhancement for "[a]ny person who personally inflicts [great bodily injury] on any person other than an accomplice in the commission or of a felony. . . ." In Cole, our high court held that the language of section 12022.7 "is clear: the enhancement applies only to a person who himself inflicts the injury." (Cole, supra, 31 Cal.3d at p. 572, 183 Cal.Rptr. 350, 645 P.2d 1182.) Such holding comports with the Legislature's intent in providing a special enhancement for criminals who inflict great bodily injury upon their victims to deter such actions in the future. (Id. at p. 573, 183 Cal.Rptr. 350, 645 P.2d 1182.)
In Corona, we recognized the holding in Cole, supra, 31 Cal.3d 568, 183 Cal.Rptr. 350, 645 P.2d 1182, and the legislative intent of section 12022.7, but found that "[a]pplying Cole uncritically in the context of [a case like this] does not create a deterrent effect. Rather it would lead to the insulation of individuals who engage in group beatings. Only those whose foot could be traced to a particular kick, whose fist could be patterned to a certain blow or whose weapon could be aligned with a visible injury would be punished." (Corona, supra, 213 Cal.App.3d at p. 594, 261 Cal.Rptr. 765.) Although we did not set out a test for determining when a person becomes a direct participant to the infliction of great bodily injury, we concluded that only "when a defendant participates in a group beating and when it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a [great bodily injury] enhancement if his conduct was of a nature that it could have caused the [great bodily injury] suffered." (Ibid.)
CALJIC No. 17.20 was revised in 1999 based on our holding in Corona, supra, 213 Cal.App.3d 589, 261 Cal.Rptr. 765, to include a fourth paragraph designed for use when there is a group beating and it is not possible to determine who caused what injury. That paragraph provides:
"When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted [great bodily injury] upon the victim if 1) the application of unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the [great bodily injury] suffered by the victim; or 2) that at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim and the defendant then knew, or reasonably should have known, that the cumulative effect of all the unlawful physical force would result in [great bodily injury] to the victim." (CALJIC No. 17.20 (1999 Rev.).)
Contrary to Banuelos's arguments otherwise, this language is consistent with the holding in Cole that a mere aider and abetter cannot receive the special great bodily injury enhancement; only a person who directly participates in the physical attack can receive the enhancement. (Cole, supra, 31 Cal.3d at p. 571, 183 Cal. Rptr. 350, 645 P.2d 1182.) So too does the language of paragraph four of CALJIC No. 17.20 comport with the intent of the Legislature to deter personal infliction of great bodily injury in the future by preventing that intent from being frustrated in cases where multiple assailants directly cause the great bodily injury. Because the instruction requires that it be proven a defendant has personally inflicted an injury on the victim during a group attack. *644 such instruction does not lighten the People's burden of proof as Banuelos asserts.
We conclude that Corona, supra, 213 Cal.App.3d 589, 261 Cal.Rptr. 765, is still good law and that the fourth paragraph of CALJIC No. 17.20 based upon such holding is a correct statement of the law.
II
IMPOSSIBILITY
Relying on People v. Magana (1993) 17 Cal.App.4th 1371, 22 Cal.Rptr.2d 59 (Magana), Banuelos next contends that even if Corona, supra, 213 Cal.App.3d 589, 261 Cal.Rptr. 765, and CALJIC No. 17.20 are valid, the prosecutor in this case failed to show that it was impossible to determine which person caused Peter's great bodily injury. We disagree.
Although the prosecution does bear the burden of showing that it cannot be determined which assailant inflicted a particular injury in the context of a group beating, the evidence adduced during the prosecutor's case here showed such impossibility. The surgeon who had treated Peter, after he had been attacked by Banuelos and approximately eight of his friends, testified Peter had suffered severe cuts to his head which required staples to close and a broken jaw, which required surgery and a four month recovery with his jaw wired shut. The surgeon conceded under crossexamination that it was impossible to tell which attack or instrument caused the broken jaw. Although Banuelos may have done so when he directly hit Peter in the jaw with a bat, the surgeon could not medically conclude that it was the bat, rather than another blunt object, like the rock that was tossed at Peter by another assailant, or some other unknown object witnesses saw the assailants pick up and hit Peter with, that caused Peter's broken jaw. The surgeon also stated that a strike from a bat could cause damage ranging from minor bruises all the way to death depending on how and where the blow hit the victim. From this evidence a jury could reasonably conclude that it was impossible to trace Peter's severe head and jaw injuries to any particular blow or assailant.
Banuelos's reliance on Magana is misplaced. In Magana, the defendant and his codefendant had used two distinctly different firearms when they opened fire on a group of people, killing one and seriously injuring another. (Magana, supra, 17 Cal. App.4th at p. 1374, 22 Cal.Rptr.2d 59.) Because the police had identified different types of bullets and cartridges retrieved from the crime scene and removed from the victims, the reviewing court in Magana found it would have been possible for the prosecution to show which injuries were caused by the defendant, and thus the true finding of the section 12022.7 enhancement for the defendant was not supported by substantial evidence. (Magana, supra, 17 Cal.App.4th at p. 1381, 22 Cal.Rptr.2d 59.) As noted above, substantial evidence shows that such possibility was not present in this case.
III
THE GIVEN INSTRUCTION
Banuelos finally asserts that even assuming Corona, supra, 213 Cal.App.3d 589, 261 Cal.Rptr. 765 and CALJIC No. 17.20 are correct statements of the law, the instruction as given was misleading because it failed to inform the jury the prosecution had the burden of proving beyond a reasonable doubt the impossibility of determining which injury was specifically inflicted by which attacker. This contention is without merit.
The instruction given in this case stated CALJIC No. 17.20 verbatim. In addition to the fourth paragraph recited in our discussion above, which makes clear it applies "[w]hen a person participates in a *645 group beating and it is not possible to determine which assailant inflicted a particular injury," the very next paragraph of the instruction states, "The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true." (CALJIC No. 17.20.) Banuelos's counsel in closing argument specifically commented that the People had the burden of proving the truth of the allegation for which CALJIC No. 17.20 applied, and referred the jury back to CALJIC No. 2.90 if they had a reasonable doubt. In addition, counsel argued "[t]he prosecution has the burden of proving it's impossible to determine who those other kids [that had attacked Peter] were. Because they have not met their burden, there is a reasonable doubt."
Based on this record, Banuelos cannot show CALJIC No. 17.20 was misleading as to the burden of proving the personal great bodily injury allegation, or that there was a likelihood the jury misunderstood such instruction in light of the evidence, entirety of instructions and arguments of counsel. (See People v. Cain (1995) 10 Cal.4th 1, 35, 40, 40 Cal.Rptr.2d 481, 892 P.2d 1224; People v. Hansen (1997) 59 Cal.App.4th 473, 482, 68 Cal.Rptr.2d 897.) Moreover, if Banuelos thought the given instruction was unclear about the prosecution burden to initially prove it was impossible to determine which person inflicted what injury on Peter, he could have requested a pinpoint instruction to further clarify the matter. He did not do so. No instructional error is shown.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES and O'ROURKE, JJ.
NOTES
[*] Kennard, J., dissented.
[1] All statutory references are to the Penal Code unless otherwise specified.
[2] The referenced part of the instruction is based on this court's case of People v. Corona (1989) 213 Cal.App.3d 589, 261 Cal.Rptr. 765 (Corona ). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261170/ | 428 A.2d 62 (1981)
Norman CURTIS, Sr.
v.
BRIDGE CONSTRUCTION CORPORATION and Liberty Mutual Insurance Company.
Supreme Judicial Court of Maine.
Argued November 21, 1980.
Decided April 7, 1981.
*63 Burton G. Shiro (orally), Ronald L. Bishop, Waterville, for plaintiff.
Robinson & Kriger, Roland Beaudoin (orally), Sarah Thornton, James Kriger, Portland, for defendants.
Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, GLASSMAN, ROBERTS and CARTER, JJ.
WERNICK, Justice.
Norman Curtis, a worker, appeals from a pro forma judgment entered in the Superior Court (Franklin County). The judgment affirmed a decision made by the Workers' Compensation Commission upon a petition for review of incapacity filed by the worker's employer, Bridge Construction Corporation. The Commission's decision terminated the worker's entitlement to payment of compensation.
We deny the appeal and affirm the judgment.
On August 29, 1977, the worker injured his back while at work. In September, 1977, the employer began paying the worker compensation for total incapacity. These payments were still being made when, on April 12, 1979, the worker and the employer executed an open-ended agreement which called for compensation to be paid the worker for total incapacity, and it acknowledged that the worker's entitlement to such compensation had commenced as of September 9, 1977. The agreement was duly approved on May 14, 1979.
Four days later, the employer filed a petition for review of the worker's incapacity. Hearings were held on July 17 and August 27, 1979. The only medical evidence presented regarding the worker's condition was the testimony of Dr. John McGinn, who had seen the worker on three occasions: on December 5, 1977, at some time early in 1978, and on June 25, 1979. Dr. McGinn's opinion as of December, 1977 and early 1978 was that the worker was then able to do only moderate work. In June, 1979, however, according to Dr. McGinn, the worker had regained the physical ability to do the work required of a steam-roller operator, the worker's pre-injury job.
Ruling in favor of the employer on the petition for review of incapacity, the Commission *64 found that the worker had recovered "substantially all of his pre-accident work capacity" and, therefore, that payment of compensation should terminate.
The worker's sole point on appeal is that the evidence did not support the Commission's decision.
The Commission's determination that at the time of the petition for review the worker was able to perform work "substantially" as before he was injured is a finding of fact, DeRoche v. Bangor Roofing and Sheet Metal Co., Me., 411 A.2d 1026 (1980), and as such it is conclusive if supported by competent evidence.
The worker's contention is that competent evidence was entirely lacking because there was no evidence comparing the worker's physical condition at the time of the petition for review with his physical condition at the time of the execution of the agreement for payment of compensation for total incapacity.
Although such comparison evidence is usually required where the employer petitions for review of a worker's total incapacity as established by an approved agreement,[1] and although it is true that, here, there was no such comparison evidence, we decide that in the particular circumstances of this case none was necessary.
The general requirement of comparison evidence was prescribed to assure that the force of an approved agreement for total incapacity will not be jeopardized as a definitive adjudication where, as frequently happens, the agreement fails to state the basis for the determination of the worker's total incapacity to earn. See Haney v. Lane Const. Corp., Me., 422 A.2d 1292, 1295 (1980). The reason this danger arises is that the failure of an agreement to specify the physical condition of the worker on which it was based can lead to ambiguity regarding what was definitively settled by the agreement. As this Court has frequently clarified, there can be two bases supporting an agreement to pay compensation for total incapacity, either: (1) a total physical disability of the worker caused by work-related injury; or (2) a partial such physical disability coupled with the unavailability of work for a worker so disabled. See, e.g., Haney v. Lane Const. Corp., supra, at 1294, n.1; Ibbitson v. Sheridan Corp., Me., 422 A.2d 1005, 1008 (1980); Pelchat v. Portland Box Co., 155 Me. 226, 153 A.2d 615 (1959); Connelly's Case, 122 Me. 289, 119 A. 664 (1923); Ray's Case, 122 Me. 108, 119 A. 191 (1922).
Because an approved agreement for payment of compensation for total incapacity can be thus ambiguous, the rule was established that if the agreement fails to disclose the worker's physical condition at the time the agreement was made, the employer seeking a reduction in the worker's compensation, in order to meet the burden of proof, must present competent and adequate evidence of the physical disability of the worker at the time of the execution of the agreement in comparison to the worker's present physical disability. See Hafford v. Kelly, supra, at 53; Matthews v. Boss, Me., 389 A.2d 32 (1978).
Plainly distinguishable, however, is the situation where the employer seeks to meet the burden of proof with evidence showing not merely some improvement in the worker's physical condition, thereby establishing a diminution of the effects of the worker's work-related injury, but, rather, that the worker now has no physical disability resulting from that injury. In this latter context the rationale for the requirement of comparison evidence disappears; under the Act, a worker who suffers from no physical disability attributable to the original incident, since he no longer has a disabling "injury", is simply not entitled to payment of compensation. 39 M.R.S.A. § 51; see also 39 M.R.S.A. §§ 54-57. Hence, no risk arises that prior matters deemed settled by an approved agreement can become subject to relitigation because the agreement had *65 failed to specify how much of the worker's incapacity was attributable to physical disability and how much, if any, was attributable to the unavailability of work for someone in the worker's physical condition. It must have been the fact, in any event, that the worker was suffering at least some physical disability, thus to have had a work-related "injury" within the meaning of the Act; unless this were so, the agreement could not have had a valid legal basis. Hence, the proving of no present physical disability at the time of the petition for review necessarily establishes that the change in the worker's condition of disability occurred after the approved agreement was executed and, therefore, the force of the agreement as a definitive adjudication of prior matters is not being undermined. See Hafford v. Kelly, supra, at 53; Dufault v. Midland-Ross of Canada, Ltd., supra, at 203-06.
Here, then, Dr. McGinn's testimony stating his opinion of the worker's physical condition as of June, 1979, was competent and adequate evidence supporting the Commissioner's finding of fact that the worker's physical disability had ended and that, therefore, he was no longer entitled to payment of compensation.
The entry shall be:
Appeal denied; judgment affirmed.
Further ordered that the employer pay to the employee an allowance for counsel fees in the amount of $550.00 together with his reasonable out-of-pocket expenses for this appeal.
All concurring.
NOTES
[1] See Haney v. Lane Const. Corp., Me., 422 A.2d 1292, 1295 (1980); Hafford v. Kelly, Me., 421 A.2d 51, 53-54 (1980); Van Horn v. Hillcrest Foods, Inc., Me., 392 A.2d 52, 54 (1978); Dufault v. Midland-Ross of Canada, Ltd., Me., 380 A.2d 200 (1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261175/ | 286 Pa. Super. 308 (1981)
428 A.2d 1006
COMMONWEALTH of Pennsylvania,
v.
Thomas George DALE, Appellant.
Superior Court of Pennsylvania.
Submitted June 29, 1979.
Filed April 20, 1981.
*309 John T. Forry, Reading, for appellant.
Charles M. Guthrie, Assistant District Attorney, Reading, for Commonwealth, appellee.
Before SPAETH, STRANAHAN and SUGERMAN, JJ.[*]
STRANAHAN, Judge:
Appellant, Thomas George Dale, was charged with burglary,[1] theft by unlawful taking,[2] receiving stolen property,[3] criminal conspiracy,[4] and two counts of corruption of minors.[5] The office of the Public Defender, which had represented appellant on several prior, unrelated cases, was again assigned as counsel. Appellant was represented by the same assistant public defender on at least three previous occasions and was to be represented by him on the present case. On December 7, 1977, appellant, with counsel, appeared before the Honorable Forrest G. Schaeffer, Berks County Assignment Judge. At that time, appellant, citing differences of opinion with counsel in regard to trial strategy, discharged assigned counsel and requested appointment of a substitute *310 defense attorney. A colloquy ensued during which appellant refused to sign a waiver of counsel form. The court declined to assign a substitute defense attorney. There is no record available reflecting what, if any, additional colloquy was conducted. The case was assigned for trial before Judge James W. Bertolet.
On December 8, 1977, appellant appeared before the trial court with previously assigned counsel. Again appellant requested the assignment of a substitute defense attorney. The trial court ruled that appellant's reasons for seeking substitute counsel were not adequate and permitted appellant to appear pro se. Prior to accepting appellant's waiver of the right to counsel, the trial court did not conduct a colloquy reviewing the ramifications of such a decision. The trial court, as cited by appellant, instead stated:
"and we will proceed the normal way of which you are familiar. You have been tried before and know what the normal way is. You act as your own attorney or you don't have to say anything. It is up to you." (N.T. pg. 7)
No record of any additional colloquy is before the court.
Appellant then proceeded to trial pro se, with previously assigned counsel present in an advisory capacity. Appellant was convicted by a jury of burglary, theft, criminal conspiracy, and one count of corruption of a minor.
This appeal, in which appellant is represented by new counsel, followed.
Appellant raises three grounds in support of his request for a new trial. In view of our conclusion that appellant did not voluntarily, understandingly, or intelligently waive his right to representation by counsel during trial, we need not consider the remaining two arguments presented.
It is well settled that criminal defendants have a constitutional right to be represented by counsel at trial. However, an accused also has the right to represent himself, if he so chooses.
*311 In Comm. v. Hauser, 265 Pa.Super. 135, 401 A.2d 837 (1979), the court in examining the validity of a purported waiver of trial counsel noted that such a waiver must be competently and intelligently made. The court held that the accused must be made aware of the right to counsel and the risks which accompany a waiver of said right. Quoting Von Moltke v. Gillies, 322 U.S. 708, 724, 68 S. Ct. 316, 323, 92 L. Ed. 309 (1948), the court stated:
To be valid such a waiver must be made with an apprehension of the nature of the charges, the statutory offenses included with them, the range of allowable punishments thereunder, possible defenses to the charges, and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered. 265 Pa.Super. 141, 401 A.2d at 840.
See also Comm. v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976); Comm. v. Davis, 479 Pa. 274, 388 A.2d 324 (1978); Comm. v. Grant, 229 Pa.Super. 419, 323 A.2d 354 (1974), and Comm. v. Fowler, 271 Pa. 138, 412 A.2d 614 (1979) (in context of a preliminary hearing waiver.)
In this case, the trial judge did not conduct a thorough and comprehensive colloquy with appellant. Instead the trial court merely concluded, without sufficient inquiry, that appellant's prior trial experience as a criminal defendant was sufficient to allow a voluntary, intelligent, understanding waiver of counsel.
Given the trial court's failure to conduct an appropriate colloquy, we are left with no alternative but to conclude that appellant's waiver of his right to counsel was not competently and intelligently made.
We reverse the decision of the lower court and grant appellant a new trial.
NOTES
[*] Pres. Judge JOHN Q. STRANAHAN of the Court of Common Pleas of Mercer County, Pennsylvania and Judge LEONARD SUGERMAN of the Court of Common Pleas of Chester County, Pennsylvania are sitting by designation.
[1] 18 Pa.C.S. § 3502.
[2] 18 Pa.C.S. § 3921.
[3] 18 Pa.C.S. § 3925.
[4] 18 Pa.C.S. § 903.
[5] 18 Pa.C.S. § 3125. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261192/ | 286 Pa. Super. 21 (1981)
428 A.2d 217
ALLIED DISCOUNT COMPANY, Appellant,
v.
Tobe McCLINTON, Rosalee McClinton.
Superior Court of Pennsylvania.
Submitted June 29, 1979.
Filed April 3, 1981.
*22 Alan B. Liss, Philadelphia, for appellant.
William G. Blasdel, Jr., Philadelphia, for appellee.
Before SPAETH, STRANAHAN and SUGERMAN, JJ.[*]
STRANAHAN, Judge:
This case is before the Court on an appeal taken by Allied Discount Company from an order of the Common Pleas Court of Philadelphia County opening a judgment for the purpose of counterclaim only, with leave to appellees to file a counterclaim within twenty (20) days from the date of the Order.
The matter arises out of the purchase of a 1971 Cadillac Eldorado automobile by Samuel McClinton, who is the son of Tobe and Rosalee McClinton, the appellees. Samuel McClinton is not a party to this action.
The car was purchased on or about August 10, 1973 from a Cadillac dealer for $6100.00.
Samuel McClinton and the appellees, Tobe McClinton and Rosalee McClinton, his mother and father, signed an installment sales contract obligating them to pay the loan over a 48 month period. The mother and father signed the installment sales contract as co-makers.
The appellees, Tobe McClinton and Rosalee McClinton, claim that they are illiterate and there is a contention by them that various things happened which were misleading to them, however, that does not affect the outcome of this matter.
*23 About one month after the purchase, the automobile was stolen and subsequently recovered by the police in a damaged condition. The son then stopped making payments on the loan, allegedly because he believed there was insurance coverage on the stolen, damaged vehicle. This, however, was not true.
Previously, the installment agreement had been assigned to the appellant, Allied Discount Company, and on November 14, 1973, it filed a Complaint in Assumpsit against the appellees only, demanding judgment in the sum of $11,110.24 plus interest and costs.
There is apparently some disagreement as to how it occurred, but the damaged automobile did come into the possession of the same Cadillac dealer from which it was purchased and who had assigned its interest in the security agreement to the appellant. The appellant sold the damaged automobile for $200.00 after holding it from May, 1974 until September 8, 1975. The sum realized from the sale, $200.00, was credited by appellant against the judgment it had entered against appellees on January 17, 1975 in the sum of $9,019.63.
The judgment above referred to was obtained as the result of the Complaint in Assumpsit which was submitted to an arbitration proceeding in December of 1974. This occurred some seven months after the car came into the possession of the appellant and nine months before the appellant sold it.
The appellants then filed a Writ of Execution listing appellees' home for sheriff's sale on April 4, 1977. When this happened, appellees filed a petition to open the judgment against them for the purpose of permitting only a counterclaim alleging a violation of 12A P.S. 9-504.[1] The appellee denies receiving any notice of the sale of the Cadillac automobile, which was the collateral.
The lower court granted the motion to open the judgment for the purposes of a counterclaim only giving leave to the *24 appellee to file said counterclaim within twenty (20) days from the date of the order. From this, the appellant, Allied Discount Company, has appealed.
This case presents some difficulty in that the appellees engender sympathy as the result of the misfortune that befell them. As a result of this proceeding they are in the process of losing whatever may have been a down payment on the Cadillac automobile together with the one monthly payment, together with the Cadillac automobile, together with the possibility of losing their home.
We realize that this fact alone does not entitle the appellees to a different solution than it would anyone else. It does, however, indicate to this Court that there may be some equities in the matter that should be explored.
In Atlas Credit Corporation v. Dolbow, 193 Pa.Super. 649, 165 A.2d 704 (1960), the court in Delaware County was confronted with a somewhat similar situation except in that case the judgment that was obtained was the result of a confession of judgment clause in a note executed the debtor. The interesting thing, however, is that the debtor asked the lower court to open the judgment in order to permit it to present a counterclaim and the court granted that right. After that was done the court then permitted the petition and answer filed to open the judgment to serve as a Complaint and Answer and the case went to trial. The jury returned a verdict on the counterclaim. The matter eventually was appealed to the Superior Court and among the various questions raised was what effect the opening of the judgment had. The court ruled that the counterclaim was not an attack on the judgment nor was the validity of the judgment questioned, rather it was a claim independent of the proceedings upon which the judgment was based and happened as the result of events which occurred subsequent to the entry of that judgment. The court then relied on Restatement of the Law, Judgments, section 125, which provides:
Subject to general equitable considerations, equitable relief from a valid judgment will be given to a party thereto if circumstances arise after the judgment is rendered *25 which make it inequitable to enforce the judgment against him.
In the present case, there was an election by Allied Discount Company to bring suit in assumpsit which was proper under the circumstances. The Uniform Commercial Code, section 9-501(1) permits a secured party the option of either suing for the debt or foreclosing on the collateral. The Allied Discount Company, in this case, elected to sue on the debt and get a judgment.
An examination of the Uniform Commercial Code indicates that a creditor has the right to proceed in assumpsit, obtain a judgment, and issue an execution thereon without regard to the various provisions covering default as set forth in Part 9.[2]
The problem that is of concern to the lower court and which led to the rather unusual solution in this case, is attributable to the fact that the appellants have levied on the appellees' home and were in the process of selling it at sheriff's sale when the appellees filed the petition to open the judgment. The concern appears to be that the sheriff's sale will take place before the appellees have the right to exercise a counterclaim.
The counterclaim that the appellees seek to raise in the Petition to Open Judgment is based on their assertion that the sale of the car for $200.00 was not commercially reasonable and that the appellees received no notice of the sale.[3]
Section 128 of Restatement of Judgments provides: "Equitable relief from a judgment will be granted to a party thereto only where adequate relief cannot be obtained by other proceedings." The illustrations given under this section indicate that equitable relief should be considered if other methods of relief cannot be obtained in time to avert harm.
In Dormont Motors, Inc. v. Hoerr, 132 Pa.Super. 567 at 570, 1 A.2d 493 (1938), the court states: "The rule that an *26 adverse judgment may not be opened after expiration of the term has been relaxed only when fraud appears or there were circumstances that presented a strong reason for equitable relief." York v. George, 350 Pa. 439, 39 A.2d 625 (1944).
The appellees are in the process of losing their home and the question is whether or not this Court should approve a rather practical decision by the lower court to permit the judgment to be opened for the purpose of allowing only a counterclaim. What the court has done in effect, is stay the execution in this matter until the appellees have the right to litigate their counterclaim which may or may not substantially reduce the amount of the judgment and thereby permit them to avoid a sheriff's sale of their home.
We believe that the decision of the lower court is proper under the circumstances. The question involved is a somewhat novel one, yet the result reached by the lower court, in essence, does justice under the circumstances and certainly applies equitable principles that would protect the appellees and would not cause serious additional harm to the appellants since their judgment, as the result of the award of the arbitrators which considered the suit in assumpsit, will not be disturbed.
We therefore affirm the decision of the lower court.
NOTES
[*] President Judge JOHN Q. STRANAHAN of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.
Judge LEONARD SUGERMAN of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.
[1] Uniform Commercial Code 1959, Oct. 2, P.L. 1023; 12A P.S. 1-101 et seq.
[2] The appellant elected to pursue this course. While it levied on the appellees' house, it never levied on the car.
[3] 12A P.S. 9-504(3) and 9-507. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261207/ | 85 N.J. 617 (1981)
428 A.2d 1289
GUTTENBERG SAVINGS AND LOAN ASSOCIATION, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
EMILIO RIVERA, SINGLE, HIS HEIRS, DEVISEES AND PERSONAL REPRESENTATIVES, AND HIS, THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT, TITLE AND INTEREST; MRS. EMILIO RIVERA, WIFE OF EMILIO RIVERA; PARK AVENUE ASSOCIATES, A PARTNERSHIP; VICTOR VILLARI, HIS HEIRS, DEVISEES AND PERSONAL REPRESENTATIVES, AND HIS, THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT, TITLE AND INTEREST; NEWS PRINTING CO., INC., A CORP.; JOSEPH DANIEL FERRARO, INDIVIDUALLY AND AS PARENT AND GUARDIAN OF PHILIP FERRARO; STATE OF NEW JERSEY; JOHN M. SCIROCCO AND DIANE F. SCIROCCO, HIS WIFE; FRANK L. ANNESE AND JENNIE L. ANNESE, HIS WIFE, DEFENDANTS, AND NORMA RIVERA; OLGA MUJER, GOEN RODRIGUEZ; ELIZABETH KALISAK AND RICHARD DRESSLER, DEFENDANTS-RESPONDENTS.
The Supreme Court of New Jersey.
Argued November 17, 1980.
Decided April 21, 1981.
*619 Sanford J. Becker argued the cause for appellant (Zucker, Goldberg & Weiss, attorneys).
Gregory G. Diebold argued the cause for respondents (Timothy K. Madden, Director, Hudson County Legal Services, attorney).
Hugo M. Pfaltz, Jr. argued the cause for intervenor Savings Banks' Association of New Jersey (Hugo M. Pfaltz, Jr., attorney; James A. Woller, on the brief).
*620 Michael D. Matteo submitted a brief on behalf of amicus curiae New Jersey Savings League (Myers, Matteo, Rabil & Norcross, attorneys).
Joseph Barry submitted a brief on behalf of amicus curiae Applied Housing Associates.
The opinion of the Court was delivered by SCHREIBER, J.
On May 12, 1966 John Scirocco and Frank Annese borrowed $30,000 from the Guttenberg Savings and Loan Association (Guttenberg) to purchase a building, consisting of eight residential apartments, located in Jersey City. A purchase money first mortgage was given as security for the debt. A default occurred in 1978 when the mortgage payments were not made and Guttenberg instituted foreclosure proceedings joining as defendants the mortgagors, subsequent purchasers of the property, judgment creditors and five tenants in possession, whose tenancies had been created and commenced after the mortgage had been recorded. The complaint was in the usual form requesting that the amount due on the mortgage be fixed, the equity of redemption be foreclosed, and the property be sold to satisfy the indebtedness. In a second count plaintiff demanded possession in accordance with the terms of the bond and mortgage.[1]
Four tenants filed an answer in which they denied the mortgagee was entitled to possession absent compliance with N.J.S.A. 2A:18-61.1 (Anti-Eviction Act) which permitted removal of tenants for only certain specified reasons. The defendant tenants moved to dismiss the complaint on the ground that it failed to state a claim upon which relief may be granted. The trial court denied the motion, finding that N.J.S.A. 2A:18-61.1 applied only to summary dispossess actions instituted in the county *621 district court and that therefore the statute did not affect a mortgagee's right to possession upon default by the mortgagor. 165 N.J. Super. 201 (Ch.Div. 1979).
Guttenberg then moved for an order striking the tenants' answer. Defendant submitted a cross motion for summary judgment, supported by affidavits from four tenants. In the affidavits all the tenants asserted a willingness to pay rent to Guttenberg. Three tenants also alleged that they were not residing in the building in question because they had been ordered by Jersey City's Director of Conservation to vacate their apartments which were not in habitable condition. The mortgagee submitted an affidavit in opposition stating that it had never been in possession of the building, that it had never received or sought any rent from any tenants, and that the landlord-mortgagor was the present owner. At the oral argument on the motions the attorney for defendants requested the trial court to reconsider its previous ruling and contended that the tenants had offered to pay the rent but the mortgagee refused to accept it, that the right to attorn belonged to the tenants, and that therefore a new landlord-tenant relationship subject to the Anti-Eviction Act had come into existence. The trial court rejected these arguments and reaffirmed its prior holding. Plaintiff's motion to strike the answer was granted.
Defendants requested a stay of the trial court's order. However, it appeared that the mortgagor had abandoned the property and that the City of Jersey City had declared the building unfit for habitation. Accordingly, defendants' counsel withdrew his motion for a stay. A final judgment fixing the debt due of $19,796 and ordering sale of the premises was entered on March 30, 1979.
Defendants appealed. Having been advised at oral argument that the execution sale had resulted in a purchase of the property by a third person, the Appellate Division stated it could not decide the rights, if any, the tenants might have to reoccupy *622 the premises after rehabilitation.[2] However, it found the viability of the appeal continued and the tenants' stake in the outcome of this litigation was sufficient to confer justiciability.
The Appellate Division reasoned that the purpose of the Anti-Eviction Act was to prevent evictions of tenants for unfair or arbitrary reasons, particularly at a time when a critical housing shortage existed. Since the Act applied to removal proceedings against residential tenants in the Superior Court as well as the county district court, the Appellate Division believed that the Legislature intended to include foreclosing mortgagees within the umbrella of the Act. Accordingly, it reversed. 171 N.J. Super. 418 (1979).
We granted plaintiff's petition for certification, 84 N.J. 417 (1980), and permitted the Savings Bank Association of New Jersey, New Jersey Savings League and Applied Housing Associates of Hoboken, New Jersey to intervene as amici curiae.
I.
A preliminary inquiry to be considered is whether this cause is moot. It is our understanding that the premises have been boarded up by the City of Jersey City because they are not habitable and that the property has been sold to a third person. However, the defendant tenants maintain the issues are not moot since they desire to move back into their apartments once the building is repaired and claim they have a right to do so. We have also been advised that defendants had filed a notice of lis pendens before the foreclosure sale so that any purchaser would have had knowledge of the tenants' interest in the property at the time of the sale. In view of these circumstances and the public importance of the issues, the Appellate Division decision having been reported, we address the questions on their *623 merits. See Housing Authority, Newark v. West, 69 N.J. 293, 295-296 (1976).
II.
The precise substantive issue is whether a foreclosing mortgagee of a residential apartment building may obtain a Superior Court order evicting tenants under leases subordinate to the mortgage without complying with the Anti-Eviction Act. We hold that the Act applies only to the traditional landlord-tenant relationship and not to that of a mortgagee holding a lien prior to the leasehold of a tenant in possession.
Resolution of the problem turns upon the legislative intent behind the Act which reads in pertinent part as follows:
No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the county district court or the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes, ... except upon establishment of one of the following grounds as good cause: [Next follows a list of 13 grounds] [N.J.S.A. 2A:18-61.1]
The section following N.J.S.A. 2A:18-61.1 refers to the requirement that no judgment for possession shall be entered "unless the landlord has made written demand and given written notice" (emphasis supplied), which must specify "the cause of the termination of the tenancy" and which notice "shall be served ... upon the tenant or lessee...." N.J.S.A. 2A:18-61.2. The Act then states that "no landlord may evict" except for the statutory causes, N.J.S.A. 2A:18-61.3 (emphasis supplied), and that no lease may provide for "tenancy" termination other than for the statutory reasons, N.J.S.A. 2A:18-61.4.
The statutory framework is aimed at a landlord-tenant relationship. The use of the words "lessee or tenant" indicates the Legislature had in mind those occupants of residential dwelling units who had a certain correlative relationship with someone else, namely, a landlord or lessor. Otherwise the Legislature would have used a broader terminology. Furthermore, the sections of the Act should be read together. The first section, 61.1, refers to grounds for removal of lessees or tenants in the *624 county district court or the Superior Court. The second section, 61.2, relates to the necessity of demand and notice to be given by the landlord. Reference is made in this respect only to the landlord. Section 61.3 prohibits a landlord, and only a landlord, from evicting a tenant except for good cause as stated in section 61.1. The language employed in the Act shows that it is directed at the landlord-tenant relationship.
The legislative intent is also evinced by its location within the statutory scheme regulating landlord-tenant proceedings. A statute is not to be interpreted in a vacuum. In Petition of Sheffield Farms Co., 22 N.J. 548 (1956), we noted that
[t]he true meaning of an enactment and the intention of the Legislature in enacting it must be gained, not alone from the words used within the confines of the particular section involved, but from those words when read in connection with the entire enactment of which it is an integral part, Palkoski v. Garcia, 19 N.J. 175, 181 (1955). [Id. 22 N.J. at 554]
We have also made it clear that statutes "must be understood in their relation and interaction with other laws which relate to the same subject or thing; they must by construed together with these related sections in order to learn and give effect to the true meaning, intent and purpose of the legislation as a whole (citations omitted)." Appeal of N.Y State Realty & Terminal Co., 21 N.J. 90, 98 (1956).
Prior to its enactment, summary removal of residential tenants was authorized in N.J.S.A. 2A:18-53. It provided for summary actions for tenant removal in the county district court when the landlord established one of three bases: (1) the term had ended, (2) a default in rent had occurred or (3) the tenant had wilfully damaged the premises, been disorderly, violated the landlord's rules or regulations or breached a covenant of the lease where a right of reentry was reserved in the lease. In 1974, N.J.S.A. 2A:18-53 was amended to exclude "residential lessees and tenants" who were thenceforth to be subject to the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., which was enacted simultaneously with the amendment. The relationship of N.J.S.A. 2A:18-61.1 et seq. to N.J.S.A. 2A:18-53 strongly indicates *625 a legislative intent that the Anti-Eviction Act concerns only proceedings between landlord and tenant.
The frequent and consistent references in the Anti-Eviction Act to tenants and landlords, the imposition on landlords alone of the duty to give a demand and notice for possession, the restriction against evictions except for "good cause" placed only on landlords, the carving out of the summary landlord-tenant eviction proceedings of residential tenancies and relocation of those dispossess proceedings in the Anti-Eviction Act, and the placement of these provisions within the statutory scheme relating to proceedings between landlord and tenant, are cumulative indicia of the legislative intent that the Anti-Eviction Act would apply only where a landlord-tenant relationship exists.
Other factors point in the same direction. The legislative statement attached to the Act when it was proposed in the Assembly read:
At present, there are no limitations imposed by statute upon the reasons a landlord may utilize to evict a tenant. As a result, residential tenants frequently have been unfairly and arbitrarily ousted from housing quarters in which they have been comfortable and where they have not caused any problems. This is a serious matter, particularly now that there is a critical shortage of rental housing space in New Jersey. This act shall limit the eviction of tenants by landlords to reasonable grounds and provide that suitable notice shall be given to tenants when an action for eviction is instituted by the landlord. [Statement attached to L. 1974, c. 49; emphasis supplied]
The statement referred to the actions of only "landlords" which the Act proposed to correct. K. Meiser, one of the prime drafters of the Act, wrote:
The Eviction For Cause Law affects only rights between landlords and tenants. It did not modify the rights of the state to oust a tenant through eminent domain proceedings or condemnation because the building is unfit for human habitation. Nor did it affect the right of a mortgagor [sic] to foreclose. [Meiser, Tenant-Landlord Law in New Jersey, 77 (I.C.L.E. 1978)]
The manifest legislative purpose of the Act was to curb abuses and inequities in landlord-tenant relations. In the legislative hearings before the Assembly Commerce, Industry and Professions Committee on March 5, 1974 on virtually all the then pending landlord-tenant related legislation including a proposed *626 No Cause-No Eviction Act [Assembly Bill 943 (1974)], a precursor to the Anti-Eviction Act [Assembly Bill 1586 (1974)] introduced on April 16, 1974 and enacted on June 25, 1974, witnesses referred to such landlord actions as improper service of process, nocturnal harassment, deliberately misleading leases, retaliation against tenants who complain to local authorities, and arbitrary refusal to renew leases. There was no evidence or suggestion in the hearing that mortgagees abused their status as mortgagees. See Public Hearing on Assembly Bills 58, 232, 284, 940, 943, 946, 947, 951, 953, 954, 1048 and 1060 (Landlord-Tenant) Before the New Jersey Assembly Committee on Commerce, Industry and Professions, 196th Legis., 1st Sess. (March 5, 1974). The obvious intent of the Legislature in passing the Anti-Eviction Act was to prohibit unfair and arbitrary ousters by a landlord. See Floral Park Tenants v. Project Holding, Inc., 152 N.J. Super. 582, 590-591 (Ch.Div. 1977), aff'd o.b. sub nom. Project Holding, Inc. v. Smyth, 166 N.J. Super. 354 (App.Div. 1979); Stamboulos v. McKee, 134 N.J. Super. 567, 572 (App.Div. 1975).
Property law with respect to the rights of a mortgagee vis-a-vis a subordinate tenant strongly supports our analysis of the legislative intent. It is not realistic to believe that the Legislature intended to modify that relationship by the Anti-Eviction Act without some reference to mortgagees. It has long been well settled in this State that upon and after default a mortgagee is entitled to possession of the premises. Dorman v. Fisher, 31 N.J. 13, 14 (1959); Shields v. Lozear, 34 N.J.L. 496 (E. & A. 1869); Sanderson v. Price, 21 N.J.L. 637 (E. & A. 1846); Woodside v. Adams, 40 N.J.L. 417, 422 (Sup.Ct. 1878). Until that event the mortgagor is entitled to possession. So long as the mortgage was prior to the tenancy, the mortgagee, upon default, could foreclose on the leasehold[3] and obtain an order *627 for possession against the mortgagor's tenant. American-Italian B. & L. Assn. v. Liotta, 117 N.J.L. 467 (E. & A. 1937); Fidelity Union Trust Co. v. Gerber Bros. Realty, Inc., 123 N.J. Eq. 511 (Ch. 1938); Stratford B. &. L. Assn. v. Wagner, 122 N.J. Eq. 452 (Ch. 1937); Mesiavech v. Newman, 120 N.J. Eq. 192 (Ch. 1936). When the mortgage precedes the lease, the tenant's rights can rise no higher than those of his landlord, the mortgagor. 4 American Law of Property § 16.91 at 169 (1952). The dissent acknowledges that "a lease between landlord and tenant which is entered into after the mortgage is subordinate to that mortgage." Post at 637. If this were not so, a mortgagee's security interest could be substantially impaired by disadvantageous leases adversely affecting the value of the property. Since the mortgagee upon default can take possession as against the mortgagor, the same right exists against the mortgagor's tenant. See Sanderson v. Price, 21 N.J.L. at 641. Thus the mortgagee may also repudiate the lease and consider the tenant a trespasser subject to eviction by an action of ejectment. 4 American Law of Property, supra, § 16.91 at 169; 55 Am.Jur.2d, Mortgages, § 205 at 321-322. If the Legislature had intended to modify these established fundamental property rights, it would have done so in some straightforward manner.[4] See Board of Ed., Borough of Union Beach v. N.J.E.A., 53 N.J. 29, 46 (1968); Hill v. Hill, 93 N.J. Eq. 567, 573 (Ch. 1922), aff'd 95 N.J. Eq. 233, 238-240 (E. & A. 1923).
Nor should the interpretative guide that remedial legislation be liberally construed be used as a pretext for construing the word "landlord" to include "foreclosing mortgagees." See post at 636. The liberal construction rule should be applied to effectuate legislative intent and not to distort that intent by applying the statute to an unintended subject. See Singleton v. *628 Consolidated Freightways Corp., 64 N.J. 357, 362 (1974) (court would not ignore statutory language despite remedial nature of legislation); Lawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326, 337 (1970) (statutory direction that charitable immunity statute be liberally construed held "not [to] come into play until there is a determination that the institution seeking to assert the immunity is one organized for `religious, charitable, educational or hospital purposes' within the legislative contemplation"). See also Wormack v. Howard, 33 N.J. 139, 142-143 (1960); Bowen v. Olesky, 20 N.J. 520, 525-526 (1956). It is not our function to devise protective measures for tenants, but it is our function to effectuate the legislative intent expressed in its enactment. State v. Fearick, 69 N.J. 32, 37-38 (1976); Matawan Borough v. Monmouth Cty. Tax. Bd., 51 N.J. 291, 298-299 (1968); Dobbins v. Bd. of Ed. Henry Hudson Reg. High, 133 N.J. Super. 13, 20-21 (App.Div. 1974), aff'd o.b. 67 N.J. 69 (1975). Though the Legislature may have the power to prospectively subordinate the mortgagee's rights to occupants of premises, it has not done so under the Anti-Eviction Act.
The Anti-Eviction Act refers to the nonremoval of a tenant by a county district court or the Superior Court. The trial court mistakenly believed that the reference to the Superior Court was restricted to dispossess actions instituted in the county district court and removed to the Superior Court pursuant to N.J.S.A. 2A:18-60. The Appellate Division mistakenly believed that the reference to the Superior Court indicated the Act applied to any removal proceedings irrespective of the status of the party adverse to the tenant. What the Act intended and expressed was that neither the county district courts nor the Superior Court had authority to order removal of a residential tenant by a landlord except as stated therein. The Superior Court could obtain jurisdiction not only when the cause was removed from the district court, N.J.S.A. 2A:35-1, but also when suits were started by a landlord for ejectment or other plenary action seeking removal. See Marder v. Realty Construction *629 Co., 43 N.J. 508 (1964); Aeon Realty Co. v. Arth, 144 N.J. Super. 309, 313 (App.Div. 1976).
Moreover, the Appellate Division's rationale overlooks the fact that a mortgagee could have instituted an action for possession in the county court at the time the Anti-Eviction Act was passed.[5] If the Legislature had intended the Anti-Eviction Act to eliminate a mortgagee's right to possession, then it would not have limited the jurisdictional aspects of the Act to the county district court and the Superior Court. Furthermore, the Appellate Division's interpretation of the Act, namely that the Superior Court was without power to terminate a residential tenancy except for a cause listed in the Anti-Eviction Act, irrespective of plaintiff's status as landlord, would impact upon such traditional legal proceedings as tax sale foreclosures, condemnations and quiet title actions.
Defendants argue that since some of the subparagraphs in the Anti-Eviction Act listing the various causes upon which removal may be based refer to the "landlord or owner," mortgagees are "owners" within the scope of the Act. The word "owners" has a more limited application. As indicated in the legislative hearings before the Assembly Committee on Commerce, Industry and Professions, it refers to owners who lease a substantial property, such as an apartment house, to one person who in turn rents the units to tenants. Public Hearing on Assembly Bills 58, 232, 284, 940, 943, 946, 947, 951, 953, 1084 and 1060 (Landlord-Tenant), supra at 81a. Moreover, under N.J.S.A. 2A:18-51, even though an agent of the owner may lease real estate in the agent's name, the owner has the same right to terminate the tenancy as the agent. Furthermore, "owner" also includes a landlord who is removing his rental units from the market and who intends ultimately, e.g., by converting to condominiums, to terminate his landlord status. See N.J.S.A. *630 2A:18-61.1(g) (boarding up permanently or demolishing), (h) (retiring permanently), (k) and (l) (converting from the rental market to a condominium or cooperative). Thus the references to "owner" are concerned with situations within the traditional landlord-tenant relationship. Obviously a mortgagee is not an owner and does not become an owner until and unless there is a foreclosure and sale of the premises to the mortgagee. Since foreclosure cuts off the leasehold interests, the relationship between the occupants and the purchaser at the foreclosure sale can only become that of landlord and tenant if a new tenancy is created. When a tenant wrongfully remains in possession of the premises, he is a trespasser. Sheild v. Welch, 4 N.J. 563, 568 (1950); see 22 N.J. Practice (LeWine, Landlord and Tenant Law), (3 ed. 1962), § 52 at 55.
Defendants also contend that their relationship to the mortgagee was transformed by attornment[6] into that of landlord-tenant because they offered to pay the rent when the premises become habitable. However, a mortgagee's right to the rent accrues when the mortgagee has obtained actual or constructive possession of the premises. Stewart v. Fairchild-Baldwin Co., 91 N.J. Eq. 86 (E. &. A. 1919); 30 N.J. Practice, supra, § 191 at 22-23. See also Del-New Co. v. James, 111 N.J.L. 157 (Sup.Ct. 1933). Thereafter, attornment does not occur until a mortgagee requests the tenant to pay the rent to it and the tenant does so. The tenants' contention that they have a right to attorn to the mortgagee, even though the mortgagee never took possession of the premises, is misplaced for attornment by definition results in a landlord-tenant relationship and none could exist when the mortgagee has not taken possession. Moreover, the mortgagee may, after taking possession, reject the occupant as a tenant and maintain an action in ejectment against a tenant of the mortgagor, for the mortgagee's consent *631 is also necessary. Sanderson v. Price, 21 N.J.L. at 641. See Hands v. Russell, 115 N.J. Eq. 55 (Ch. 1933); 1 Tiffany, Landlord and Tenant, § 73(3) at 411 (1912). For a full discussion of New Jersey law on attornment and mortgages see McKenny, "The Place of Attornment in the Modern N.J. Law of Mortgages," 60 N.J.L.J. 137, 145, 153, 161 (1937).
The Appellate Division substituted its wisdom and judgment for that of the Legislature when it concluded that giving a mortgagee a greater right than that of the landlord of a residential building to evict non-offending tenants would be "anomalous." It failed to recognize that there may be substantial differences between mortgagees who are primarily interested in security for an indebtedness and landlords whose basic interest is generally in the cash flow of the enterprise. The landlord's interest hinges only on the tenancies, which the landlords normally create, modify and terminate.
Some arguments for differentiating between mortgagees and landlords have been advanced by the amici curiae. Amicus new Jersey Savings League contends that inclusion of mortgagees under the Anti-Eviction Act will accelerate the decrease in the supply of mortgage funds. It argues that the most common available mortgage insurance emanates from the Federal Housing Administration (FHA) of the Department of Housing and Urban Development (HUD). Under some circumstances when the building contains fewer than five apartments, this mortgage insurance program requires the mortgagee, following foreclosure and acquisition of the property, to convey it to the FHA in a vacant condition. See 45 Fed.Reg. 59,561 (1980) (replacing 24 C.F.R. § 203.381). If the Anti-Eviction Act prevents a mortgagee from removing tenants in these circumstances, the FHA may not accept the property and pay the insurance proceeds. The net result could lead to a reduction in mortgage funds which are already in short supply and would conflict with
[t]he avowed purpose of the federally-insured mortgage [which is] ... to provide a decent home and a suitable living environment for every American family. (42 U.S.C.A. 1441). Amendments to the operative sections over the years have *632 responded to the demands of low income families facing severe housing shortages by permitting mortgagees to accept limited down payments, reduced interest rates and longer maturity dates. (See 12 U.S.C.A. 1709[b][3], [5], [9].) [Government National Mortgage Ass'n v. Screen, 85 Misc.2d 86, 379 N.Y.S.2d 327, 329 (Sup.Ct. 1976)]
For an example of the benefits of a HUD-insured mortgage to a mortgagor, see Associated East Mortgage Co. v. Young, 163 N.J. Super. 315 (Ch.Div. 1978).
Amicus Applied Housing Associates, a developer of subsidized rehabilitated housing for low and moderate income families, argues that the Appellate Division decision will cause those local banks lending funds for rehabilitation of housing in urban centers to stop making such loans. Noting that prospects for preservation of housing may be enhanced if the building is empty, it contends banks holding mortgages on deteriorated housing will simply write off the loan or permit the mortgagor to run the building into the ground, causing constructive eviction due to lack of services. It contends that banks will take this position because they do not want to become involved in the business of operating such rental housing. This amicus asserts that housing comparable to the property involved in this case will as a result not be rehabilitated or improved to serve as decent housing.[7]
Moreover, as a matter of legislative policy it can be maintained that it would be unfair to bind a mortgagee by leases entered into improvidently by the landlord. It would be inequitable to burden mortgagees with long-term leases having insufficient inflationary protections, with leases having a cash bonus up front or with "sweetheart" leases. Comparable possibilities were considered in Mesiavech v. Newman, where the court noted:
*633 The owner of the equity of redemption [the mortgagor] could not defeat the right of the mortgagee by a lease of the premises, and secure a payment of rent in advance. To hold that such right existed would open the door for successful fraud in every case of rent-productive mortgaged premises, where the security is inadequate for the payment of the mortgage debt. [120 N.J. Eq. at 194-195, quoting Fletcher v. McKeon, 71 App.Div. 278, 75 N.Y.S. 817, 819-820 (1902)]
See, e.g., Kirkely Corp. v. Cross Bridge Towers, Inc., 91 N.J. Super. 126 (Ch.Div. 1966) (landlord, shortly prior to defaulting on its mortgage, induced tenants to prepay rents at a substantial discount). See also Note, 11 Seton Hall L.Rev. 311, 325 (1980) (criticizing the Appellate Division's opinion and commenting that, if tenants whose leaseholds commenced after the mortgage were given priority, the value of the property could be decreased and thus the Anti-Eviction Act would impair the security given for the debt).
Under some circumstances leases may, of course, be considered an asset and enhance the value of the property. However, whether that is so may not be known until the property is sold and then only if it has been offered with and without the leaseholds. In any event it can readily be seen that reasons exist for treating mortgagees and landlords differently, and whether those reasons are sufficient is a matter which rests within the Legislature's sound discretion. Property Owners Assn. of N. Bergen v. Tp. of N. Bergen, 74 N.J. 327, 338 (1977); N.J. Sports & Exposition Authority v. McCrane, 61 N.J. 1, 8-9 (1972), app. dism. sub nom. Borough of East Rutherford v. New Jersey Sports and Exposition Authority, 409 U.S. 943, 93 S.Ct. 270, 34 L.Ed.2d 215 (1972); New Jersey Mortgage Finance Agency v. McCrane, 56 N.J. 414, 422 (1970).
The statutory language, the Act's location in the statutory scheme, and the legislative history, coupled with the legislative silence relative to the traditional law governing the rights of a mortgagee against a defaulting mortgagor and those having subordinate interests in realty, lead inevitably to the conclusion that the Legislature did not intend that the Act affect a mortgagee's rights. It is only when the mortgagee's relationship *634 to the occupant becomes one of landlord-tenant that the Act applies.
The judgment is reversed and the matter remanded to the trial court for entry there of judgment for plaintiff.
PASHMAN, J., dissenting.
It is certainly true, as the majority acknowledges, that one purpose of the Anti-Eviction Act is "to curb abuses and inequities in landlord-tenant relations." Ante at 625. However, the act clearly is meant to do far more than protect residential tenants from harassment by landlords. More broadly, it is meant to afford those tenants some measure of security in the occupancy of their homes provided that no good cause exists for eviction. Furthermore, the act is a direct response to the Legislature's concern for the "critical shortage of rental housing space in New Jersey," Statement accompanying L. 1974, c. 49, a concern which, at least until today, this Court shared. E.g., Inganamort v. Borough of Fort Lee, 62 N.J. 521, 527 (1973); Marini v. Ireland, 56 N.J. 130, 146 (1970); see generally Southern Burlington County N.A.A.C.P. v. Township of Mt. Laurel, 67 N.J. 151 (1975). Because the majority gives a narrow reading to the act which not only ignores its broader purposes but actually undermines them, I dissent.
I agree with the majority that resolution of this case turns upon a determination of the legislative intent behind the act. Ante at 623. For reasons unclear to me, the majority adopts an unduly circumscribed view of this intent.
The act was passed in 1974 because of the Legislature's recognition that "residential tenants frequently have been unfairly and arbitrarily ousted from housing quarters in which they have been comfortable and where they have not caused any problems." Statement accompanying L. 1974, c. 49. It is obviously of no matter to an evicted tenant if he loses his home, through no fault of his own, because of arbitrary conduct on the part of his original landlord or because a mortgagee has foreclosed on a mortgage loan extended to that landlord.
*635 The strongest argument that the majority is able to muster in support of its holding is that the frequent use of the term "landlord" in the act somehow means that foreclosing mortgagees were not meant to be covered. See ante at 623-625. This argument is unpersuasive, depending as it does on the unstated premise that "landlord" and "foreclosing mortgagee" are, for purposes of the act, mutually exclusive terms. However, the term "landlord" is nowhere defined in the act (nor, for that matter, by the majority). Why, then, should it be assumed that it refers only to the party originally entering into a lease with the tenant?
In its description of good cause, the act contains many references to the "landlord or owner" of a residential building or, in several instances, simply to the "owner." N.J.S.A. 2A:18-61. 1(g), (h), (i), (k), (l) and (m). These references are persuasive evidence that the Legislature intended to afford vitally needed protection to tenants even if the person seeking to evict was not the person who originally entered into the lease with the tenant.[1] For example, if the landlord were to sell the building to another person, that purchaser would stand in the position of landlord to tenants. Thus, the statutory language indicates that the Legislature intended the act to cover all persons who had a common law right to evict a tenant.
*636 Although a foreclosing mortgagee is technically neither a landlord nor an owner, this Court should determine the scope of the act by reference to its remedial purposes, not to definitions devised for use in property law. A construction of "landlord" that encompasses foreclosing mortgagees is completely harmonious with the overall language of the anti-eviction statute, which reflects the broad purpose of safeguarding non-offending tenants from eviction. The concern of the statute is not the status of the party seeking the eviction, but the power of the court to order an eviction:
No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the county district court or the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes, other than owner-occupied premises with not more than two rental units or a hotel, motel or other guest house or part thereof rented to a transient guest or seasonal tenant, except upon establishment of one of the following grounds as good cause. ... [N.J.S.A. 2A:18-61.1 (emphasis added)]
Because foreclosure is not among the statutorily enumerated causes for eviction, a court has no authority to remove the residential tenants because the mortgagee has foreclosed.
In sum, the statute is remedial social legislation and, as such, should be broadly construed. Even if there are ambiguities in the statutory language, such ambiguities surely should be resolved in favor of the vulnerable class which the statute was intended to protect.
It would not be unfair in any way to hold that the act applies to foreclosing mortgagees. A mortgagee that takes a mortgage on a residential building does so fully aware that there may be tenants living there in the event of foreclosure at some future time and that its rights of foreclosure may be restricted by conflicting legal rights of the tenants. Such common law rights, like those of other landlords which are also abridged by the act, must give way before the unquestioned power of the State to regulate the use and control of residential dwellings to insure that such use conforms to the public interest. See, e.g., Dome Realty, Inc. v. City of Paterson, 83 N.J. 212 (1980); Inganamort v. Borough of Fort Lee, supra.
*637 Also troubling is the apparent belief of the majority that the common law rights of a mortgagee are sacrosanct and not subject to modification. The act affects the rights of an owner, whose interests in the property are clearly greater than those of a mortgagee. I fully agree with the conclusion of the Appellate Division that it would "be anomalous and would seriously thwart the legislative purpose" to give a foreclosing mortgagee "a greater right than that of the landlord to evict nonoffending tenants upon the landlord's financial failure." 171 N.J. Super. at 423.
Because a lease between landlord and tenant which is entered into after the mortgage is subordinate to that mortgage, foreclosure terminates that lease and a periodic tenancy arises between the foreclosing mortgagee (or any other person acquiring title subsequent to foreclosure) and the tenant. However, the tenant remains fully protected by the act and may be evicted only as permitted by the terms of the act.
The Anti-Eviction Act was broad and salutary social legislation intended to reduce the fear and insecurity of tenants that they might, for no fault of their own, suddenly face the loss of their homes. A non-offending tenant should not, in these times of acute shortage of low- and moderate-income housing, face such a loss merely because a mortgagee has foreclosed and demanded immediate possession. Nor do I believe that the Legislature intended such a result.
I would affirm the judgment of the Appellate Division that the Anti-Eviction Act applies to a foreclosing mortgagee.
Justice HANDLER joins in this dissent.
For reversal and remandment Chief Justice WILENTZ and Justices SULLIVAN, CLIFFORD, SCHREIBER and POLLOCK 5.
For affirmance Justices PASHMAN and HANDLER 2.
NOTES
[1] It has been said that "[a] prudent attorney will add a second count for the possession of the lands." 30 N.J. Practice (Cunningham and Tischler, Law of Mortgages), § 241 at 117 (1975).
[2] Plaintiff's counsel advised this Court at oral argument that plaintiff purchased the property at the sheriff's sale and immediately sold the property to a third person. The proceeds were insufficient to satisfy the mortgage debt and foreclosure expenses.
[3] It is, of course, important to join tenants whose leases are subsequent in time to the mortgage in the foreclosure proceeding. Unless that is done, the tenants' interest would be unaffected by foreclosure. American-Italian B. & L. Assn. v. Liotta, 117 N.J.L. 467 (E. & A. 1937).
[4] Moreover, at the legislative hearings referred to above no reference was made or consideration given to the mortgagees' property rights. See Public Hearings on Assembly Bills 58, 232, 284, 940, 943, 946, 947, 951, 953, 954, 1084 and 1060 (Landlord-Tenant), supra.
[5] In 1979 the county court system was abolished. The Anti-Eviction Act became effective in 1974.
[6] N.J.S.A. 46:8-1 generally provides that an attornment between a tenant and stranger to the title is null and void, but excepts an attornment "to a mortgagee after the mortgage has become forfeited."
[7] Adoption of the Appellate Division holding might also involve questions under the Contract Clauses in the federal, U.S.Const., Art. I, § 10, par. 1, and state, N.J.Const. (1947), Art. IV, § 7, par. 3, constitutions. See Fidelity Union Trust Co. v. N.J. Highway Auth., 85 N.J. 277 (1981); Stamboulos v. McKee, 134 N.J. Super. 567 (App.Div. 1975) (upholding the constitutionality of the Anti-Eviction Act's restrictions on a landlord's right to evict tenants).
[1] The effort of the majority to avoid the significance of the term "owner" in the statute by ascribing a novel meaning to it, ante at 629-630, suggests that the majority is willing to go to great lengths to give an unnaturally narrow reading to the act. This definition of "owner" has no basis in either logic or law.
The majority's authority for the definition is derived from a public hearing held in Newark on March 5, 1974 before six members of the Assembly committee sponsoring the bill. The specific statement relied upon by the majority was not even made in reference to the act but was in fact a comment made by a member of the public in regard to Assembly Bill 947, a bill to require landlord identity and disclosure, subsequently enacted as N.J.S.A. 46:8-27 et seq. Public hearing before Assembly Commerce, Industry and Professions Committee on Assembly Bills 58, 232, 284, 940, 943, 946, 947, 951, 953, 954, 1048 and 1060, March 5, 1974 at 81A. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261215/ | 48 Md. App. 498 (1981)
428 A.2d 94
ANTOINETTE SANTONI, PERSONAL REPRESENTATIVE OF THE ESTATE OF MARIO SANTONI
v.
HERMAN H. SCHAERF ET AL.
No. 1187, September Term, 1980.
Court of Special Appeals of Maryland.
Decided April 14, 1981.
The cause was argued before MOYLAN, MASON and COUCH, JJ.
Stuart M. Salsbury, with whom was Max R. Israelson on the brief, for appellant.
B. Ford Davis, with whom were William B. Whiteford, Francis J. Gorman and Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellees.
MOYLAN, J., delivered the opinion of the Court.
Mario Santoni, age 56, died on July 3, 1972, of hepatitis caused by his taking of the drug isoniazid (INH). The drug was dispensed to him in a tuberculosis prevention program conducted by the Baltimore City Health Department. As a result, on April 29, 1975, Antoinette Santoni, his widow and the personal representative of his estate, brought a medical malpractice suit under the wrongful death statute against Dr. Allan S. Moodie, Director of the Bureau of Communicable Diseases of the Baltimore City Health Department and head of the Baltimore City tuberculosis program; Dr. Meyer W. Jacobson, Clinical Director of the Baltimore City tuberculosis program; and Dr. Herman Schaerf, a clinical doctor *500 in the Baltimore City tuberculosis program.[1] A trial of the case was held in the Superior Court of Baltimore City in February, 1980. The trial consumed more than two weeks and involved the testimony of thirteen witnesses. The case was eventually submitted to the jury on the issues of the defendants' negligence and the decedent's contributory negligence. On February 29, 1980, a jury rendered a verdict finding no negligence on the part of Dr. Schaerf which caused or contributed to the decedent's death but negligence on the parts of Drs. Moodie and Jacobson. The jury also found, however, that the decedent's own negligence caused or contributed to his death, thereby barring recovery by the plaintiff. After Mrs. Santoni's motion for judgment n.o.v. and for a partial new trial or a new trial was denied, she filed this appeal. The defendants have filed a cross-appeal.
On this appeal, the appellant raises the following contentions:
1) That the decedent was not contributorily negligent as a matter of law and that the trial court, therefore, erred in permitting the question of his contributory negligence to go to the jury;
2) That the trial court erred in its instructions on contributory negligence;
3) That the trial court committed reversible error in refusing to admit into evidence a certain conversation between the appellant and her husband;
4) That the trial court committed reversible error in admitting into evidence a "Danger Signs" poster; and
5) That the jury's verdict was inconsistent and irreconcilable.
The defendant-appellees, on the other hand, in their cross-appeal contend that their motions for a directed verdict *501 on the issue of immunity should have been granted. They also contend that the court erred in admitting evidence of twelve other deaths of persons who received INH therapy from the Baltimore City Health Department.
The drug isoniazid (INH) has been used since the early 1950's for the prevention and treatment of tuberculosis. Its metabolism is by the liver. Until the mid-1960's, it was thought to be one of the safest drugs on the market. In 1970, however, after two men who were participants in a tuberculosis prevention program in Washington, D.C., died from hepatitis, it was recognized that the ingestion of INH might be associated with liver disease, particularly hepatitis. As a result, in 1971, the United States Public Health Service recommended that certain screening and monitoring procedures be used on all recipients of the drug in any INH program. The Service also recommended that a study be made of persons taking INH to determine if there were any connection between the INH and liver disease. Following up on its recommendation of a surveillance program, the Public Health Service sought to enlist the help of local health departments to report on the progress of patients in local health department INH programs. The Service would keep the statistical information, while the local public health agencies would dispense the drug and monitor the people. Baltimore City at that time and for many years before had one of the highest tuberculosis rates in the country, both in number of cases and deaths. In order to expand its already existing prophylaxis program the Baltimore City Health Department agreed to participate in the special surveillance program.
The protocol for the surveillance program promulgated by the United States Public Health Service called for dispensing the drug, in pill form, only on a monthly basis. A patient would thus be required to return to the clinic once a month to receive his 30-day supply of pills. At the time of these visits, any adverse reactions would be noted, particularly any possible signs and symptoms of hepatitis. The protocol provided that the participant would be "ask[ed] specifically about jaundice, dark urine, sustained loss of *502 appetite, marked fatigue and prolonged nausea or vomiting." In any cases of suspected hepatitis, the isoniazid would be discontinued immediately. A monthly report card would be sent to the Public Health Service on each patient.
In 1972, Dr. Allan S. Moodie was the Administrative Health Officer in the Baltimore City Health Department in charge of the administrative aspects of the isoniazid program such as arranging funding and staff for the program. He arranged for the Baltimore City Health Department to participate in the United States Public Health Service surveillance program. Dr. Meyer W. Jacobson was the Clinical Director of the Baltimore City tuberculosis program. Eventually approximately 3,000 persons entered the surveillance program.
The program in Baltimore City provided that a clinic doctor would make the determination whether a person would be placed on INH therapy, based on the tuberculin skin test and chest X-ray. Thereafter, a nurse would instruct the patient on the use of the drug and any signs and symptoms of a reaction. At the follow-up monthly visits, at first only public health nurses were permitted to interview the participants in the program. As the program expanded, however, health aides and clerical help were authorized to conduct the interviews. If a patient reported any side effects, the patient was to be referred to a clinic doctor for further examination. Any reaction to the drug was to be reported on a chemoprophylaxis register sheet and on the computer cards sent monthly to the Public Health Service.
Mario Santoni became a participant in the Baltimore City isoniazid program in 1972. Mr. Santoni, a native of Italy, came to the United States in 1955. Two years later, he married the appellant, Antoinette Santoni. In Italy, Mr. Santoni had completed only the fourth or fifth grade and, in this country, worked primarily as a painter and carpenter. In 1972, he spoke only broken English and had great difficulty reading it. Prior to the illness which caused his death, his health had been excellent and, according to his wife, he had never been to a doctor for any illness.
*503 In January, 1972, Mr. Santoni became a naturalized citizen of the United States and also became employed by Baltimore City as a maintenance man at the Southern District Police Station. As a prerequisite to his employment, he was required to undergo a medical examination with a tuberculin skin test and chest X-ray. The examination was done at the Eastern Health District Chest Clinic of the Baltimore City Health Department. It showed a positive tuberculin skin test but a clear chest X-ray. This combination of a positive skin test and clear chest X-ray indicated that Mr. Santoni did not have active tuberculosis but that he had live tubercle bacilli in his body. It indicated that he had a greater than ordinary risk of developing tuberculosis.
Dr. Herman Schaerf reviewed the test and X-ray and, on January 20, 1972, placed Mr. Santoni in the Baltimore City isoniazid program. The program called for Mr. Santoni to receive the drug isoniazid prophylactically for one year. Although isoniazid is a prescription drug, no physician in the program ever saw Mr. Santoni, and no informed consent form to utilize the drug was ever signed by Mr. Santoni or any of the approximately 3,000 other people who were in this special surveillance program.
Mr. Santoni faithfully went to the clinic each month to receive his monthly supply of the medication. He believed that in order to work for the City he had to take the isoniazid and regularly took his pills. In March, 1972, Mr. Santoni began to experience fatigue and decreased appetite. By April, he noted fullness, abdominal discomfort, and increased flatulence. By May, fatty food intolerance became evident, his stools became lighter, and his urine became darker. By early June, Mr. Santoni began to look worse and to feel more tired. His final visit to the clinic was on June 12, 1972.
During the month of May, Mr. Santoni began to look more pale and began to experience more gastric discomfort. His wife was away for a month at the shore with other members of her family. He complained about his condition to a neighbor. When Mrs. Santoni returned home in mid-June, she became concerned about her husband's condition and *504 consulted her doctor. The doctor prescribed coantigel and librium for her husband's stomach problems and nerves. When Mr. Santoni's condition became worse, Mrs. Santoni called Dr. Joseph Notarangelo at Mercy Hospital. Mr. Santoni was admitted to the hospital on June 22, 1972.
At the time of Mr. Santoni's admission to Mercy Hospital, he complained of excessive gas and indigestion and gave a fairly detailed history of his illness. He did not, however, know that he was jaundiced. At the hospital, Mr. Santoni was diagnosed as suffering from hepatitis. There is no treatment for the disease, only care to prevent complications. Despite the absence of any complications, Mr. Santoni's condition deteriorated rapidly and he died on July 3, 1972. Expert testimony placed the cause of death as a toxic reaction to isoniazid, causing hepatitis. Twelve other participants in the tuberculosis prevention program also died of liver disease in 1972.
There was expert testimony that had the disease been diagnosed in early June, Mr. Santoni's chances for recovery would have increased significantly. There was further testimony that Mr. Santoni was probably jaundiced at the time of his last clinic visit on June 12. The chemoprophylaxis register sheet, which contained a history of Mr. Santoni's visits to the clinic all along, however, made no mention of any adverse signs or symptoms.
It was not until the fall of 1972 that Baltimore City officials first became aware of the large number of deaths of participants in the City isoniazid program. It was then brought to light that there were thirteen deaths in 1972 of participants in the program (both the general program and special surveillance program combined) and that one of these (Mario Santoni's) was directly related and seven were probably related to the INH therapy. Five were listed as possibly related to INH therapy. The City INH prophylaxis program was thereafter severely restricted. Isoniazid was prescribed as preventive therapy only for certain high-risk individuals.
In addressing the specific contentions raised in this appeal and cross-appeal, we note at the outset that the question of *505 negligence is not in issue here. That question was decided by the jury adversely to the appellees and was not raised in their cross-appeal. We are concerned only with the question of contributory negligence whether or not there was legally sufficient evidence of contributory negligence on the part of Mario Santoni to support the jury's finding. If there were not, a directed verdict should have been granted on this issue and the jury should never have considered the question.
Contributory negligence is a recognized defense in medical malpractice cases. It bars recovery where the patient's negligence was an active and efficient contributing cause of the injury. "The rule of contributory negligence requires that the patient's negligence must be concurrent with that of the physician. If it occurs after the physician's negligence and merely adds to the effects, as opposed to being the cause of the patient's problem, it will not relieve the physician from liability; it will merely serve to `mitigate' or lessen the amount of damages awarded to the patient." Holder, Medical Malpractice Law, p. 302 (2nd ed. 1978).
The burden of establishing contributory negligence was on the defendants. In Batten v. Michel, 15 Md. App. 646, 652, 292 A.2d 707, we said:
"Contributory negligence is an affirmative defense and the burden of proving the plaintiff's contributory negligence rests upon the defendant.... Contributory negligence, if present, defeats recovery because it is a proximate cause of the accident...." (Citations omitted.)
A person is contributorily negligent when he fails to exercise ordinary and reasonable care for his own safety by doing something that a person of ordinary prudence would not do or failing to do something that a person of ordinary prudence would do, under the circumstances. In Menish v. Polinger Company, 277 Md. 553, 559, 356 A.2d 233, the Court of Appeals discussed this standard of care:
"In measuring contributory negligence, the standard of care to be used as the criterion is that of an *506 ordinarily prudent person under the same or similar circumstances, not that of a very cautious person. Sanders v. Williams, 209 Md. 149, 153, 120 A.2d 397, 399 (1956); and what an ordinarily prudent and careful person would do under a given set of circumstances is usually controlled by the instinctive urge of one to protect himself from harm. Greer Lines Company v. Roberts, 216 Md. 69, 79, 139 A.2d 235, 239 (1958); Martin v. Sweeney, 207 Md. 543, 548, 114 A.2d 825, 827 (1955)."
An important element of contributory negligence is the foreseeability of harm. To be held contributorily negligent, a person must actually have been aware of or should have appreciated the risks involved and then failed to exercise reasonable and ordinary care for his own safety. The courts have on many occasions discussed this element of foreseeability of risks and failure to exercise ordinary care. In Menish v. Polinger Company, supra, the Court of Appeals, stated, at 277 Md. 560-561:
"Before the doctrine of contributory negligence can be successfully invoked, it must be demonstrated that the injured party acted, or failed to act, with knowledge and appreciation, either actual or imputed, of the danger of injury which his conduct involves. .. . Stated another way, when one who knows and appreciates, or in the exercise of ordinary care should know and appreciate, the existence of danger from which injury might reasonably be anticipated, he must exercise ordinary care to avoid such injury; when by his voluntary acts or omissions he exposes himself to danger of which he has actual or imputed knowledge, he may be guilty of contributory negligence." (Citations omitted.)
In Sanders v. Williams, supra, the Court stated, at 209 Md. 152:
"As is true of primary negligence, one measure of contributory negligence is the need, in a given situation, *507 to anticipate danger. Presence or absence of reasonable foresight is an essential part of the concept. One is charged with notice of what a reasonably and ordinarily prudent person would have foreseen and so must foresee what common experience tells may, in all likelihood, occur, and to anticipate and guard against what usually happens. On the other hand, one is not bound to anticipate every possible injury that may occur or every possible eventuality.... Absent actual or constructive knowledge to the contrary, one may act on the assumption that he will not be exposed to danger that will come only by the breach of duty which another owes him. He is not bound to anticipate negligent acts or omissions on the part of others unless, under the circumstances, an ordinarily prudent person would know, or should know, that it was not safe to make the assumption of due care on the part of the other person." (Citations omitted.)
With respect to this element of foreseeability, in discussing contributory negligence in medical malpractice cases, courts have noted the disparity between the knowledge and skill of a doctor and that of a patient. The patient is not in a position to diagnose his own ailment. Without being told, he does not know the risks of medication. He is not in a position to judge whether the prescribed course of treatment is in his best interest. As a consequence, it is not contributory negligence for a patient to follow a doctor's instructions or rely on his advice, Largess v. Tatum, 130 Vt. 271, 291 A.2d 398 (1972), Los Alamos Medical Center, Inc. v. Coe, 58 N.M. 686, 275 P.2d 175 (1954); to fail to consult another doctor when the patient has no reason to believe that the doctor's negligence has caused his injury, Johnson v. United States, 271 F. Supp. 205 (W.D. Ark. 1967), Rahn v. United States, 222 F. Supp. 775 (S.D. Ga. 1963), Fairchild v. Brian, 354 So. 2d 675 (La. App. 1977); or to fail to diagnose his own illness, O'Neil v. State, 66 Misc. 2d 936, 323 N.Y.S.2d 56 (1971). See also Martineau v. Nelson, 311 Minn. 92, 247 N.W.2d 409, 417 (1976); Annot., Contributory Negligence or *508 Assumption of Risk as Defense in Action against Physician or Surgeon for Malpractice, 50 ALR2d 438.
The patient has a right to rely on the doctor's knowledge and skill. The court in Halverson v. Zimmerman, 60 N.D. 113, 232 N.W. 754, 759 (1930), stated well the nature of this reliance:
"It is not a part of the duties of a patient to distrust his physician, or to set his judgment against that of the expert whom he has employed to treat him or to appeal to other physicians to ascertain if the physician is performing his duty properly. The very relation assumes trust and confidence on the part of the patient in the capacity and skill of the physician; and it would indeed require an unusual state of facts to render a person who is possessed of no medical skill guilty of contributory negligence because he accepts the word of his physician and trusts in the efficacy of the treatment prescribed by him. A patient has the right to rely on the professional skill of his physician, without calling others in to determine whether he really possesses such skill or not. The patient is not bound to call in other physicians, unless he becomes fully aware that the physician has not been, and is not, giving proper treatment."
57 Am.Jur.2d, Negligence, § 324, discusses the comparative knowledge of the parties as bearing on the question of liability.
"Since knowledge of danger, either actual or imputed, is an element of negligence, whether primary negligence on the part of the defendant, or contributory negligence on the part of the plaintiff, the question of liability is sometimes resolved in a negligence action by a comparison of the knowledge of the defendant as against the knowledge of the person injured. The proposition may be stated as follows: Liability is established when it is shown that the peril, being of the defendant's creation, was *509 known to the defendant but not to the person injured; but no liability is predicable of the injury when it appears that the injured person's knowledge of the danger surpassed or equaled that of the defendent."
Applying that body of law to the evidence, or lack thereof, in the case at hand, we note that there was no direct evidence at trial that Mario Santoni knew of the risks of taking INH. No informed consent form was ever signed by him nor was there any notation on his chemoprophylaxis register sheet that he was advised of the risk of hepatitis. Whatever evidence was introduced on this issue was totally circumstantial.
The appellees sought to establish through a series of inferences that Mr. Santoni was aware of the risks associated with isoniazid. The evidence showed that the protocol set forth by the U.S. Public Health Service for questioning a patient about the appearance of any adverse signs or symptoms was distributed to all the health clinics in Baltimore City. This protocol was discussed at the monthly meetings of the charge nurses from all the clinics. The administrative nursing supervisor assigned to the Division of Tuberculosis Control testified that she sat in on some of the interviews and saw the procedure being followed. From this evidence, the appellees argue that the inference could be made that Mr. Santoni was aware of the risks of isoniazid. From that inference, they then contend another inference could be drawn that the absence of any notation on the register sheet as to any adverse signs or symptoms was due to Mr. Santoni's failure to advise the clinic personnel of these reactions. As a consequence, they urge that the jury could have made the ultimate inference that Mr. Santoni was negligent in continuing to take the INH after the appearance of his symptoms and through his failure to seek immediate medical attention was responsible for his death.
To be sure, from the defendants' evidence itself, as well as from additional evidence on the issue offered by the plaintiff, a strong countervailing argument could also be mounted. A circumstantial predicate was established that arguably *510 showed that Mr. Santoni did not indeed know of the risks of isoniazid ingestion or associate his symptoms with the medication because he was not properly questioned about adverse reactions. Mr. Santoni was an immigrant with little formal education. He and his wife spoke Italian at home. He spoke only broken English and had great difficulty reading English. He did not go to doctors for any medical treatment. Under the impression that he had to take the INH to retain his job with the City, he went to the clinic regularly to get the medication. He had a right to rely on the clinic personnel in his treatment. They were in a far superior position to recognize any adverse signs or symptoms. Mr. Santoni first began to notice ill-defined symptoms of fatigue and decreased appetite in March. The evidence indicates that he continued to associate his symptoms with stomach problems, as is evident on his hospital admission record. At the time of his admission, he complained of excessive gas and indigestion and did not know that he was jaundiced. On the basis of his complaints, a preliminary diagnosis of a peptic ulcer was, in fact, made.
The appellant offered evidence that argued against contributory negligence, if such countervailing evidence had been needed. Mr. Santoni was not accustomed to taking medication. Reactions to medication are not always clear-cut and definite. A layman is not in a position to know that ill-defined symptoms are due to a drug. Doctors themselves many times are unsure. The symptoms are sometimes very prominent; at other times they are very subtle. When the symptoms, which the evidence indicates Mr. Santoni associated with his stomach, became more pronounced, Mr. Santoni did, indeed, seek medical attention. This, furthermore, was not an isolated case where one man allegedly knew but failed to report signs and symptoms of hepatitis and died as a result. There were twelve other deaths in 1972 in Baltimore City of participants in the City's INH prophylaxis program. There was no evidence that any of them complained of any adverse reactions. Dr. Schaerf, in fact, stated that of the six to eight deaths at the Druid Clinic, none of the patients reported any symptoms consistent with *511 hepatitis. Mr. Santoni can be held accountable for what a reasonably prudent person in his position would have done.
The precise question before us, however, is not what the countervailing evidence might have been to negate contributory negligence but whether such countervailing evidence was even necessary. The burden of proof upon the issue was upon the defendants and the question is whether their best version of the facts added up to a prima facie case. The defendants argue that there was evidence from which an inference could be made that Mr. Santoni either associated or should have associated his symptoms with the medication but failed to report the adverse reactions to the clinic nurses because he was afraid to lose his job with the City. In addition to Mrs. Santoni's testimony that her husband believed he was required to take the drug in order to work for the City, they rely upon the evidence that Mr. Santoni told Dr. Notarangelo, upon his admission to Mercy Hospital, that he was self-employed and worked at City Hall on weekends. There was also evidence that Mr. Santoni stopped taking the medication two weeks before he was admitted to the hospital.
The appellees argue that this gives rise to a possible inference of contributory negligence. The appellant argues, on the other hand, that this gives rise to the equally probable inference of due care.
It is important to state precisely the test for measuring the legal sufficiency of the evidence on the issue of contributory negligence in a case such as this. In the most routine setting, where each party has offered conflicting factual versions of the event and where each version could give rise to its own permitted inferences, the test is as stated by the Court of Appeals in Fowler v. Smith, 240 Md. 240, 246-247, 213 A.2d 549:
"Negligence is a relative term and must be decided upon the facts of each particular case. Ordinarily it is a question of fact to be determined by the jury, and before it can be determined as a matter of law that one has not been guilty of negligence, the *512 truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn. Kantor v. Ash, 215 Md. 285. Cf. Suman v. Hoffman, 221 Md. 302. And Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury. The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury. Ford v. Bradford, 213 Md. 534. Cf. Bernardi v. Roedel, 225 Md. 17, 21. However, the rule as above stated does not mean, as is illustrated by the adjudicated cases, that all cases where questions of alleged negligence are involved must be submitted to a jury. The words `legally sufficient' have significance. They mean that a party who has the burden of proving another party guilty of negligence, cannot sustain this burden by offering a mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture that such other party has been guilty of negligence, but such evidence must be of legal probative force and evidential value. State v. Hopkins, 173 Md. 321, and cases cited; Hevell v. Balto. Transit Co., 173 Md. 327; Haddock v. Stewart, 232 Md. 139." (Emphasis in original.)
This particular question of legal sufficiency, however, does not arise in the most ordinary setting of conflicting versions of the facts. It is rather the case that even the defendants' best version of the facts could serve as the predicate for competing inferences, one of contributory negligence and one of due care (or at least of the absence of contributory negligence). The appellant urges upon us, in such a setting, a test of legal sufficiency as articulated in Baltimore Transit Co. v. Presberry, 233 Md. 303, 308, 196 A.2d 717: "Where evidence permits several inferences equally probable, a *513 proponent must eliminate the exculpatory ones." That statement of the test came from a significant line of Court of Appeals cases dealing with alternative inferences. It behooves us initially to examine this body of case law and to determine whether it represents, indeed, a separate test of legal sufficiency. In dealing with a situation where alternative and conflicting inferences could have arisen from a single factual predicate, the Court of Appeals stated the test for legal sufficiency in Langville v. Glen Burnie Coach Lines, Inc., 233 Md. 181, 185, 195 A.2d 717:
"At this point, we are confronted by the well-established rule of evidence that the burden mentioned above is not met by proof adduced by the plaintiff to the effect that defendant's negligence may have caused the injuries, or even that it probably did cause them, if it also appears from plaintiff's evidence that the injuries may have resulted from some other cause for which the defendant is not responsible."
The rule of Langville was, in turn, taken from Strasburger v. Vogel, 103 Md. 85, 63 A. 202, where the Court of Appeals held that the evidence of primary negligence in that case was not legally sufficient and should not have gone to the jury. The plaintiff there offered a version of the facts that could have given rise to an inference of negligence but could also, with equal probability, have given rise to an alternative inference that negated negligence. In dealing with such an "either/or" foundation for alternate inferences, Chief Judge McSherry said for the Court, at pp. 91-92:
"But when the plaintiff himself shows that the injury complained of must have resulted either from the negligence of the defendant or from an independent cause for the existence of which the defendant is in no way responsible, he cannot be permitted to recover until he excludes the independent cause as the efficient and proximate cause of the injury; ...." (Emphasis in original.) *514 And again, at p. 93:
"It is equally obvious that where the evidence of the plaintiff is evenly balanced as to whether the cause for which a defendant may be responsible, or the cause for which he is not responsible produced the injury, the jury would have no right to disregard arbitrarily the proof which exculpated and to credit only that which inculpated to adopt the theory which would subject the defendant to damages and to reject that which would exonerate him."
The Langville rule was invoked by the Court of Appeals in Baltimore Transit Co. v. Presberry, supra, under circumstances where the plaintiff's own case for negligence arguably permitted the inference of negligence but also permitted, upon the same established facts, the inference that the defendant was not negligent. The Court of Appeals held that that was not a sufficient predicate to allow the case to go to the jury, saying at 233 Md. 308:
"The burden is upon a proponent to establish negligence. Where evidence permits several inferences equally probable, a proponent must eliminate the exculpatory ones. See Joffre v. Canada Dry, Inc., 222 Md. 1, 8 and cases cited. See also Langville v. Glen Burnie Coach Lines, 233 Md. 181. We think the evidence of primary negligence on the part of the Transit Co. was legally insufficient."
In Ferguson v. Wootten, 240 Md. 186, 213 A.2d 498, the Court of Appeals dealt with the converse situation where there was a direct conflict in testimony so that the option of drawing one of several opposing inferences from one of several opposing factual predicates was properly left to the jury. The Court of Appeals there distinguished that situation from one appropriately calling for the Langville rule, saying at 240 Md. 190-191:
"The appellant argues that because of this conflict in the testimony offered by the appellee, the jury should not have been allowed to speculate on which *515 version was correct. The appellant relies upon Langville v. Glen Burnie Lines, 233 Md. 181, 195 A.2d 717 (1963).
In Langville, the testimony, all offered by the plaintiffs, was that the accident was caused either by the negligence of the driver of the defendant's bus or by a sudden and unexpected brake failure which a reasonable inspection or test of the brakes would not have revealed. We held that the lower court was correct in granting a motion for a directed verdict in favor of the defendant. The case, we found, was governed by the rule that the burden upon the plaintiff to prove affirmatively the defendant's negligence and that it was a proximate cause of the injuries is not met by proof adduced by the plaintiff that defendant's negligence may have caused the injuries, or even that it probably did cause them, if it also appears that the injuries may have resulted from some other cause for which the defendant is not responsible. There was no direct testimony in Langville that the defendant's negligence, rather than the brake failure, was a proximate cause of the accident. Here, the situation is different. There was direct contradictory testimony that Bailey was negligent and that he was not. As was indicated in Baltimore Transit Co. v. Presberry, 233 Md. 303, 308, 196 A.2d 717 (1964), the evidence in Langville permitted several equally probable inferences. Here, neither the appellee's testimony nor that of her witness, Mrs. Nock, rested on inference. There was a sharp conflict in their testimony as to whether Bailey entered on the red or the green light. This was a question of fact, not of inference, and as such was properly left to the determination of the jury. .. . The issue left to the jury was not a speculative choice between the possibilities inherent in the only testimony offered but a determination of the truth in direct, unspeculative testimony of witnesses who differed as to what had happened."
*516 In Short v. Wells, 249 Md. 491, 240 A.2d 224, the Court of Appeals also dealt with a situation where a factual dispute made submission of the case to the jury appropriate. In that case as well, however, they came to grips with the Langville rule. They mentioned it by name, quoted from it, pointed out that it "has been applied many times by this Court," but went on to point out that "it may only be applied in a proper case and this is not such a case." After several pages of analysis of the two arguably different measures of legal sufficiency, the Court distinguished the factual conflict in front of it in that case from the very different conflict between alternative inferences, saying at 249 Md. 496-497:
"But that is not the case here where there is more than conflicting inferences. Here there is direct as well as circumstantial evidence of negligence. It was therefore a question of fact for the jury and not mere speculation or conjecture as to what to infer .. . [T]he court ... overlooked the fact that the conflict was not in the competing inferences drawable from the circumstantial evidence but in the direct evidence. For that reason, the court should have submitted the evidence to the jury." ... (Emphasis in original.)
In Larsen v. Romeo, 254 Md. 220, 255 A.2d 387, on the other hand, the Court of Appeals applied the Langville rule and held that the lower court correctly refused to submit a case to the jury, where two conflicting inferences could have been drawn from the same evidence and the proponent failed to negative the exculpatory inference. In Richards v. Huntt, 255 Md. 255, 257 A.2d 412, the Court of Appeals dealt with a situation where the case should have gone to the jury, because there was a conflict in the testimony itself and not simply competing inferences possibly arising from the same facts. The court there analyzed at great length both the Langville case and Ferguson v. Wootten, supra, and stressed the two types of conflict which give rise to two different ways of measuring legal sufficiency. Most recently, the Court of Appeals in General Motors Corp. v. Lahocki, 286 Md. 714, *517 410 A.2d 1039, discussed the distinct nature of the things to be measured and there held that, since a factual dispute was involved, reliance "on such cases as Strasburger v. Vogel...; Richards v. Huntt...; Langville v. Glen Burnie Lines... and Stitzel v. Kurz, 18 Md. App. 525, 308 A.2d 430 (1973), is misplaced."
Enough! It is time to back away from the individual cases and regain perspective. There is a danger that this and predecessor cases have unduly complicated the statement of the law, whereas our ever-present goal should be to simplify such statement. There is a danger that entangled in the underbrush of case law, we have lost sight of the larger forest. From Langville and its progeny and all of the elaboration thereon, we may be able to distill a simple and more general evidentiary statement.
The simple rule, shorn of elaboration, is that the question of whether a particular inference is permitted is one of law for the trial judge. When we are dealing with conflicting direct evidence on an issue, all that is necessary to get to the jury is some competent evidence which, if the jury in its unfettered prerogative should believe, would establish the thing to be proved. It is always for the jury to determine which of several conflicting versions of the facts to believe. By the same token, when those various versions of fact give rise to various permitted inferences, it is always for the jury to determine which inference to draw (or, in its prerogative, to draw no inference)[2]. All of the language, however, about leaving to the jury the question of which inference to draw is uttered in the limited context of competing permitted inferences. When in discussing the law of directed verdicts, therefore, the case law speaks of giving the party against whom the motion is directed the benefit of the most favorable version of the facts and all inferences fairly deducible therefrom, the phrase "inferences fairly deducible therefrom" means "permitted inferences" and not mere speculative possibilities.
*518 Although the jury may choose between permitted inferences (or choose not to draw any inference at all), it is for the judge in the first instance to determine, as a matter of law, which inferences are permitted. When analyzing the legal sufficiency of circumstantial evidence rather than direct evidence, we are measuring the adequacy of predicate facts, assuming them to be true, to give rise to inferred facts. The rule is that the inferred fact must follow more likely than not from the predicate fact for the jury even to be permitted the option of inferring. This is the production burden which the proponent must meet in order to establish a prima facie case and avoid the peril of a directed verdict. Even when that production burden is met, of course, the proponent must still persuade the factfinder, by the appropriate burden of persuasion, to draw the inference, but if the production burden is not met, he does not even get the opportunity to persuade.
What, therefore, appears to be a separate sub-body of case law in the Strasburger-Langville tradition for handling equally probable but alternative inferences arising from a single factual predicate actually dissolves, upon closer analysis, into nothing more than a particular and limited instance of the general principle. Deceptively, however, that body of case law developed a language all of its own without adequate reference back to the general principle. When those cases speak of the evidentiary insufficiency of showing "that the injury complained of must have resulted either from [A] or from [B]... until he excludes [B]," it is simply a way of saying that neither A nor B is a permitted inference because neither A nor B is more likely than not to be true. When those cases speak of the fatal failure to eliminate the exculpatory inferential alternative, they are simply stating the mathematical truism that if A and B begin as equally probable alternatives, A cannot become the more probable of the two and rise to the level of a permitted inference, unless and until B has either been eliminated or had the likelihood of its occurrence significantly diminished. An inferred fact that is only equally probable is not a permitted inference because, by definition, if it is only "equally probable," it is not "more probable."
*519 Applying then this general test of legal sufficiency to the particular facts in this case, we hold that even that version of facts most favorable to the defendants was not legally sufficient to give rise to a permitted inference of contributory negligence. There was a possibility of contributory negligence. One could speculate that there might have been contributory negligence. Contributory negligence was not, however, a more likely than not conclusion to draw from the ambiguous factual predicate erected by the defendants.
From the established facts that the protocol of the U.S. Public Health Service was distributed to all health clinics in Baltimore City, was discussed at monthly meetings of the charge nurses at those clinics and was observed by an administrative nursing supervisor to be followed on several occasions, it is no more likely that questions about symptoms were specifically asked of Mr. Santoni than that they were not. The defendants would go further, however, and pile another inference upon the first inference they would have had the jury draw. Once again, however, from the fact that questions about symptoms were asked Mr. Santoni, it is no more likely that he would have deduced from the questioning the fact that a significant medical danger was involved than that he would not have so deduced. The defendants, however, would have us pile yet a third inference upon the first two. Once again, from the fact that no symptoms were recorded on Mr. Santoni's chemoprophylaxis sheet, it is no more likely that Mr. Santoni knew of the danger and negligently failed to report the symptoms than that a laxness in the monitoring procedure produced the empty record.
From this ambiguous factual predicate, a number of mere possibilities may have followed. There was, however, no probability of contributory negligence, for there was no more reason to infer it than there was not to infer it. Since the evidence did not point toward it as a logical and probable conclusion it was not sufficient to support a legally permissible inference that Mario Santoni was negligent and that his negligence was the proximate cause of his death. The jury should not have been permitted to speculate on the *520 matter. A legally permissible inference cannot be based on mere speculation or conjecture.
Having disposed of the appellant's appeal on this issue, it is unnecessary to address the other questions raised by her.
This disposition of this issue does, however, require us to address the issues raised by the cross-appeal. The appellees/cross-appellants contend that their motions for a directed verdict on the grounds of governmental immunity should have been granted. Suit was originally brought against four doctors. All four filed motions for summary judgment on the ground that they were immune from suit because they were sued for discretionary acts performed in the course of their employment with the Baltimore City Health Department. Only the motion of Dr. Robert E. Farber, who was the Commissioner of Health of Baltimore City at the time of the isoniazid surveillance program, was granted. At the end of all the evidence, the appellees again moved for a directed verdict on the same ground. Their motions were again denied.
In their cross-appeal, the appellees/cross-appellants argue that they exercised administrative responsibilities within the Health Department which involved pure discretion for which they should be completely immune from suit. They rely on James v. Prince George's County, Maryland, 288 Md. 315, 418 A.2d 1173, which reaffirmed that governmental immunity extends to public officials when performing discretionary, rather than ministerial, acts in furtherance of their official duties. The appellees, however, failed to establish the initial premise for that proposition that they were indeed public officials rather than public employees. Since the question of who is a public official rather than a public employee is not always clear and involves an application of various tests (see Duncan v. Koustenis, 260 Md. 98, 271 A.2d 547), we cannot take for granted that which was not proved.
The appellees'/cross-appellants' other contention is that the evidence of the deaths of twelve other participants in the City's INH program was improperly admitted, placing a burden on them to disprove twelve other cases of negligence *521 and prejudicing the jury. The evidence of twelve other deaths was admitted not for the purpose of showing independent acts of negligence but only for the purpose of establishing causation, existence of a dangerous situation, and knowledge of the dangerous situation on the part of the appellees/cross-appellants. It was, moreover, relevant on the issue of negating contributory negligence, as has already been fully discussed. With respect to the issues of causation and the existence of a dangerous situation, the thirteen deaths were definitely similar in circumstances. All thirteen people died of liver disease in the same year after INH ingestion as part of the City's isoniazid program. The evidence indicated that all of the deaths were either directly, probably, or possibly related to the isoniazid. Dr. Schaerf stated specifically that of the six to eight deaths of participants at the Druid Chest Clinic, none reported any signs or symptoms consistent with hepatitis. This fact was highly relevant on the questions of 1) whether INH ingestion caused Mr. Santoni's toxic hepatitis and was a dangerous drug, 2) whether the clinic personnel knew or should have known of its danger from the prior deaths and properly should have advised the participants of the risks and 3) whether Mr. Santoni's death was due to some unusual dereliction or contributory negligence on his part. In the final analysis the ultimate weighing of evidentiary relevance versus its counterweight of possible prejudice is assigned to the wise discretion of the trial judge. The trial judge here found the evidence to be sufficiently relevant on a combination of issues to warrant its admission. We see no abuse of that discretion. See McCormick, Law of Evidence, § 200 (2nd Ed., 1972).
Judgment reversed in part and affirmed in part.
Case remanded for retrial on issue of damages; costs to be paid by appellees.
NOTES
[1] Suit was also brought against several other defendants as to whom the case, for one reason or another, was dismissed prior to trial.
[2] The rule, of course, is the same where the judge is sitting as a fact finder. As to his discretion in choosing between permitted inferences or choosing to draw no inference at all, see Danz v. Schafer, 47 Md. App. 51, 422 A.2d 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261224/ | 428 A.2d 1094 (1981)
BELLOWS FALLS UNION HIGH SCHOOL DISTRICT NO. 27
v.
Anne L. RODIA and Windham Northeast Education Association.
No. 55-80.
Supreme Court of Vermont.
February 3, 1981.
Reargument Denied February 23, 1981.
Pope & Pu, Brattleboro, for plaintiff.
Gary H. Barnes of Downs, Rachlin & Martin, South Burlington, for defendants.
Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SMITH, J. (Ret.), Specially Assigned.
BILLINGS, Justice.
The defendant-appellant Rodia was a physical education teacher and basketball coach at Bellows Falls Union High School during the 1977-78 school year. During this period the terms of her employment were governed by the collective bargaining agreement then in effect between the defendant-appellant Windham Northeast Education Association and the plaintiff-appellee Bellows Falls Union High School District No. 27. In April of 1978 the school district placed Rodia on probation and offered her a probationary contract for the 1978-79 school year. Rodia filed a grievance under the collective bargaining agreement. The school district denied the grievance and Rodia requested arbitration from the American Arbitration Association. The school district refused to participate in the arbitration, claiming that under the collective bargaining agreement the issues raised by Rodia were not arbitrable. The arbitration proceeded in accordance with the rules of the American Arbitration Association without the participation of the school district. The arbitrator decided that the issues raised by the teacher were arbitrable, and that the school district had violated the collective bargaining agreement, and ordered the school district to revoke the probation.
Before the arbitration began, the school district brought an action in Windham Superior *1095 Court seeking a preliminary injunction against the arbitration and a declaratory judgment that the issues raised by the teacher were not arbitrable. The court refused to grant the injunction. After the award of the arbitrator was issued the defendants amended their answer to include a second counterclaim seeking to enforce the award. The plaintiff and defendants moved for summary judgment. The court granted summary judgment for the plaintiff and refused to enforce the award. The defendants have appealed.
The only issue presented by this appeal is whether or not the teacher's claim was a proper subject for arbitration under the collective bargaining agreement. The school district has conceded that if her claim was arbitrable the court should have granted the defendants' motion for summary judgment and enforced the arbitration award.
Whether or not the teacher's claim is arbitrable is determined by the terms of the collective bargaining agreement. See Danville Board of School Directors v. Fifield, 132 Vt. 271, 315 A.2d 473 (1974). This agreement provided a procedure for the resolution of all grievances. The final step of this procedure is arbitration. The agreement defines a grievance as follows:
[A] claim by a teacher that there has been a violation, misinterpretation or misapplication of the terms of this agreement.
The teacher asserted as a grievance that the school district did not have adequate grounds to put her on probation.
The school district argues that the contract does not require any grounds for putting a teacher on probation. The contract provides procedures that must be followed before a teacher can be placed on probation. The proper procedures were followed in this case. The school district contends that since the collective bargaining agreement does not specifically require that the probation be based on cause, there was no violation of any part of the agreement when the teacher was placed on probation and that she therefore does not have an arbitrable grievance under the agreement.
Whether or not the collective bargaining agreement provides for arbitration in this situation is determined by ordinary principles for the interpretation of contracts. Fuller v. Guthrie, 565 F.2d 259 (2d Cir. 1977). See also Danville Board of School Directors v. Fifield, supra; Blood v. Bates, 31 Vt. 147, 150 (1858). When the language of a contract is clear, the intention of the parties must be taken to be what their agreement declares it to be. Lamoille Grain Co. v. St. Johnsbury & Lamoille County R.R., 135 Vt. 5, 8, 369 A.2d 1389, 1390 (1976); Stevens v. Cross Abbott Co., 129 Vt. 538, 545, 283 A.2d 249, 253 (1971). In this case, the language of the agreement is clear. Under the collective bargaining agreement all grievances are arbitrable, and grievance is defined very broadly. The teacher's claim was that the school district misinterpreted the terms of the bargaining agreement and violated the agreement when it placed the teacher on probation. This claim meets the definition of a grievance contained in the collective bargaining agreement, and is therefore arbitrable.
Reversed and remanded for entry of judgment for the defendant and enforcement of arbitration award. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261229/ | 286 Pa. Super. 51 (1981)
428 A.2d 567
COMMONWEALTH of Pennsylvania, ex rel. BARBARA M.
v.
JOSEPH M.
Appeal of BARBARA M.
Superior Court of Pennsylvania.
Argued December 5, 1979.
Filed April 3, 1981.
*53 Elisabeth Petry, Philadelphia, for appellant.
John J. D'Angelo, Philadelphia, submitted a brief on behalf of appellee.
Before PRICE, WATKINS and HOFFMAN, JJ.
*54 PRICE, Judge:
Appellant, Barbara M. and appellee, Joseph M. the natural parents of Demian and Molly M.,[1] were married on August 8, 1970, separated on March 17, 1976, and divorced on January 4, 1978. The couple's two children resided with their parents until their separation in March, 1976. Thereafter, both children remained in appellant's custody until August, 1977, when appellee failed to return Demian to his mother following a visit with his grandparents.[2] Although appellant sought to employ self-help methods to regain custody of Demian, she was unsuccessful. She thus filed a petition seeking lawful custody of her son on October 19, 1977. The petition was denied and this appeal followed.
Appellant contends that the trial court erred in (1) according excessive weight to Demian's expressed preference to remain with his father; and (2) separating Demian and his sister since there was no compelling reason to do so. In addition, appellant argues that the order granting custody to appellee is not in Demian's best interest because she can provide Demian with (1) medical care which he does not now receive; and (2) a living environment that is far more stable than that in which he currently resides. For the reasons that follow, we disagree with these contentions and thus affirm the order of the trial court.
It is axiomatic that the singular concern in a custody proceeding is the best interest and welfare of the children involved. See Wenger v. Wenger, 267 Pa.Super. 134, 406 A.2d 555 (1979). To ensure that proper attention is addressed to this concern, we are obligated to exercise the broadest scope of review on a custody matter that is before *55 us on appeal. Commonwealth ex rel. Drum v. Drum, 263 Pa.Super. 248, 251, 397 A.2d 1192, 1193 (1979). Nonetheless, since the trial judge is in the best position to evaluate the attitudes, sincerity, credibility, and demeanor of the witnesses involved, his "determination of custody should be accorded great weight." Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. 591, 597-98, 296 A.2d 838, 841 (1972) (citation omitted). See e.g., Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa.Super. 114, 117, 245 A.2d 663, 665 (1968). Thus, although we are not duty bound to accept the trial court's determination, we will defer to it, absent an abuse of discretion, if the facts have been thoroughly investigated by the judge, that investigation is documented by a complete record, and a comprehensive analysis of the judge's findings is contained in a written opinion. Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. at 597-98, 296 A.2d at 841. See Commonwealth ex rel. Schwarz v. Schwarz, 252 Pa.Super. 95, 380 A.2d 1299 (1977). Instantly, the trial judge has complied with this formula and thus deference to his determination is warranted.
The facts adduced through the course of the several hearings held in this matter are neither complicated nor disputed. Prior to their separation and consequent divorce, appellant and appellee not surprisingly shared the same lifestyle. Both parties strictly adhered to a macrobiotic diet consisting of whole grains, locally grown vegetables, various soups, beans, noncitrus fruits, nuts, juices, and herbal teas. Dairy food, meat and sugar were excluded from their diet. (N.T. 27, Feb. 9, 1978). In addition, appellant and appellee slept on the floor in a Japanese futon, a device similar to a sleeping bag, allegedly because of its therapeutic benefits. (N.T. 16, Feb. 9, 1978). Since their divorce, appellant no longer abides by the macrobiotic diet or the "futon" sleeping custom. Appellee and Demian, however, continue to practice both.
Appellant is unemployed and has no present plans to seek employment. Her time is thus divided between caring for *56 her daughter Molly and attending the Delaware County Community College on a part-time basis. While appellant attends class, Molly attends a day care center located on the college campus. Welfare, federal housing assistance, and an allowance from her parents provide appellant's sole means of support.
A one-time apprentice barber, appellee's work record is slightly more impressive. Although he was unemployed for the balance of the period in which Demian was in his custody prior to the court's order herein, appellee had secured a job as an interior painter with a construction company as of the date of the most recent hearing below. Appellee testified that a caretaker would be available for Demian if one was needed as a result of his new work hours. This position would allegedly be filled by a couple with whom appellee and Demian are familiar and with whom they share the same lifestyle. (N.T. 28, July 12, 1978). Appellee also received at least a partial welfare grant as a supplement to his unsteady income.
Appellant's home consists of a three bedroom, air conditioned apartment with two baths, a balcony, and the right to use a swimming pool and playground situated in the apartment complex. In contrast, appellee has only a small, two room apartment located in center city Philadelphia. (N.T. 31, Feb. 9, 1978). Nonetheless, believing as we do, that material things are, relatively speaking, less important to a child of seven than love, friendship and stability, we must agree with the trial judge's conclusion that "the parties are equally capable of caring for . . . Damien [sic: Demian]." Docket Entry, March 1, 1978. Accordingly, our inquiry must focus on the singular concern in such cases, namely, the manner in which Demian's best interest and welfare may be served.[3]
*57 Appellant initially argues that the order awarding custody to appellee is not in Demian's best interest since Demian will allegedly be deprived of proper medical attention if permitted to remain in appellee's care. This contention is without merit.
During her testimony and in her brief, appellant intimates that appellee disapproves of doctors and dentists and, therefore, that Demian's health would be in jeopardy should appellee be permitted to retain custody. The record, however, fails to support this contention. During one of the hearings, for example, appellee stated, "[I]f you are not eating towards bad teeth, the cavities, you won't get them. If you are limiting the sugars and candies and other junk food kids nowadays eat they won't tend toward getting cavities." (N.T. 28, Feb. 9, 1978). Appellee's statement expresses confidence in the diet which he follows and its ability to ward off some of the ill effects of modern life. Such an expression hardly amounts to a blanket disapproval of modern medical science.[4]
Any suggestion that appellee would provide inadequate care for Demian and thus place his health in jeopardy necessarily casts aspersions on the care which Demian received in appellee's home prior to the court ordered custody arrangement. However, any such suggestion directly contradicts the answers which appellant provided in discussing this same matter with the trial judge. The pertinent exchange is as follows:
*58 Q. [THE COURT]: To pursue what Mr. D'Angelo has already asked you, what have been your observations of your son Demian physically?
A. [Appellant]: He's fine.
Q. Does he appear to be in good health?
A. Yes, he does.
Q. And does he appear to be well-cared for or cared for adequately?
A. Yes, he does.
Q. And he makes no complaints to you?
A. No.
Q. And do you have any complaints about his welfare or the way he is being cared for?
A. No, I just think he really misses his sister.
(N.T. 16-17, July 12, 1978).[5]
Appellant also argues that the trial court's custody decree ignores Demian's best interest because she could provide Demian with a homelife that is far more stable than the one which he will enjoy if he remains in his father's custody. In support of her contention on this issue, appellant cites (1) three occasions on which appellee allegedly took Demian to Philadelphia "nightclubs;" (2) the material advantages of residing in a three bedroom apartment as compared with the material disadvantages of living in a two room center city apartment; (3) the fact that appellee allegedly neglected both Demian and Molly financially following the parties' divorce; (4) appellee's poor employment record; and (5) appellee's adherence to the macrobiotic diet. After carefully *59 considering the record and briefs in this case, we cannot accept this argument.
Regarding appellant's "nightclub" argument, the record discloses that appellee and Demian went to a particular "night spot" on two occasions to hear the performance of a musical group which they both enjoy. (N.T. 34, Feb. 9, 1978). On another occasion, they apparently dined in a restaurant housed above a cafe in the same building. The record reveals nothing out of the ordinary about these three experiences except that, on one such excursion, Demian was permitted to violate the Macrobiotic diet by drinking orange juice since that was the only drink available for a patron of Demian's age. Admittedly, there was testimony that one of these excursions occurred on a schoolnight. Since the record establishes that Demian was home by 10:00 p.m. or shortly thereafter, however, we cannot say that an isolated instance in which a child enjoys a late evening evinces parental unfitness. To the contrary, we are impressed that appellee and his son have the ability to share mutual recreational interests, a fact of considerable importance in resolving a custody dispute.
Appellant's attempt to buttress her "stability" argument by comparing the relative differences between her apartment and appellee's apartment is likewise unavailing. Appellant's ability to offer Demian a three bedroom apartment, pool and playground in no way reflects her ability to provide that environment at some future date, since that future is contingent upon her receipt of government assistance at its present financial level. In any event, the relative difference between the two residences is not controlling. Demian has friends with whom he can play at both locations. Although the record reveals that certain types of recreation, e.g., swimming, may be more readily available at his mother's apartment, his father testified that Demian already receives ample recreation in a safe and wholesome environment. Having been enrolled in a school near his father's apartment, the change necessitated by a move to his mother's apartment could only have a disruptive effect. Finally, *60 since there was no evidence that appellee's apartment was unclean or in any other way ill-suited to sheltering a child, its smaller size will not defeat appellee's right to custody.[6]
Appellant's "stability argument" also contains an allegation that appellee financially neglected his children following their divorce. If this is a factually correct statement,[7] appellee's conduct is to be reprobated and condemned since the obligation to support one's children is absolute and thus not contingent upon the parent having custody of the child. See Kaplan v. Kaplan, 236 Pa.Super. 26, 344 A.2d 578 (1975).
Nonetheless, the determination of custody and the disposition of support matters are distinct concerns. Commonwealth ex rel. Posnansky v. Posnansky, 210 Pa.Super. 280, 232 A.2d 73 (1967). While support orders are largely within the sound discretion of the trial judge, Commonwealth ex rel. Bergwerk v. Bergwerk, 228 Pa.Super. 190, 192, 323 A.2d 243, 245 (1974), custody determinations are subject to close scrutiny by an appellate court. Commonwealth ex rel. Drum v. Drum, 263 Pa.Super. 248, 397 A.2d *61 1192. This is true, in part, because custody matters admit of little flexibility since the best interests of the child must be controlling. Support orders, on the other hand, must be justified by the parent's present earning ability and thus necessarily require room for judicial flexibility. See Commonwealth ex rel. Goodman v. Delara, 219 Pa.Super. 449, 281 A.2d 751 (1971).
Mindful of these differences as well as the distinct policies sought to be furthered by support orders and custody decrees, we have reviewed the docket entries herein and are satisfied that the trial judge has monitored the matter of support very closely. We note that the trial judge has carefully reviewed appellee's employment record and has used the threat of contempt proceedings to ensure appellee's fulfillment of his support obligations.
Although custody determinations are not to be used to punish a recalcitrant parent or to vindicate the court's authority, this is not to say that such conduct could not have been considered as a factor bearing on appellee's parental fitness. It should be noted, however, that each parent is obligated to contribute to the support of his or her children to the extent of their respective financial abilities to do so. Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975). Thus, absent the opportunity to review a record from a full and complete support hearing, one in which the financial status of, and support paid by, each of the parties was disclosed, we cannot hold that the trial judge erred in determining that appellee's conduct, vis a vis appellant's conduct in this matter, did not militate against awarding him custody of Demian.[8]
*62 Appellant next contends that the trial judge erred in according excessive weight to Demian's preference to remain in the custody of appellee. We disagree.
The trial judge met in chambers with Demian. Counsel were present, and together with the court, had an opportunity to question Demian during the recorded interview. See Cheppa v. Cheppa, 246 Pa.Super. 149, 151, 369 A.2d 854, 856 (1977). During the course of this interview, Demian testified that he liked living with his father, (N.T. 57, Feb. 9, 1978), that he would prefer to continue to do so "[b]ecause he feeds me better and takes care of me better," Id. at 58-59, and that he was nonetheless desirous to continue to visit his mother. Id. at 65.
It is indeed unfortunate that a child must ever be placed in a position of expressing a preference for one or the other parent. Since a custody court's decision has such far reaching consequences, however, it is important for the court to at least attempt to determine, as best it can, the child's perspective. That is precisely what the trial judge sought to do in the instant case. The judge thus discussed with Demian the divorce that resulted in the custody dispute, the fact that both of his parents loved him and that they would continue to do so regardless of the outcome of this dispute. Despite his youth, Demian appeared to understand the problems involved as well as the ramifications inherent in their solution. Indeed, Demian's perceptiveness so impressed the judge that he felt compelled to conclude that Demian was quite mature for his age. Slip op. at 3. In any event, the judge did not simply offer Demian a choice and defer to the decision reached by the seven year old child. Rather, in reaching his decision herein, the judge
considered all the facts and circumstances in this case and. . . conclude[d] that the parties are equally capable of caring for . . . Damien. However, because of Damien's intense preference to live with his father, together with the fact that he appears to be satisfied and well cared for *63 and is settled in school I deem it not in his best interest and welfare to interrupt his life at this time.
Docket Entry, March 1, 1978 (emphasis added).
Our conclusion on this issue is buttressed by the factors considered by the court upon reconsideration of the original order dated March 1, 1978. Some of these factors are reflected in the court's order of July 26, 1978, which order continued custody in appellee.
We find that since our Order of March 1, 1978 awarding custody of child Damien to his father, Joseph M., the child's condition has not deteriorated but instead has improved in that his school attendance and grades have improved as well as his general appearance and attitude; that despite his father's employment we are satisfied and convinced that Damien will be adequately cared for by his paternal grandmother and father's friends. We are again impressed by the child's desire to continue to live with his father and there was no evidence presented that should prevent this.
In regard to Damien's mother we find that there are no changes in her condition or circumstances sufficient to warrant a change of custody to her. She is still a full time student and receiving public assistance. We have considered Damien's desire to be with his sister Molly who is residing with her mother and believe that Damien can enjoy her company and companionship during the visitation periods the time and duration of which have been under the control of the parties.
Therefore, having reconsidered the matter in the light of present conditions and circumstances and found that it would be in the best interest and welfare of Damien to remain in the custody of his father, the order of March 1, 1978 is affirmed.
Order of Court, July 26, 1978 (emphasis added).
Appellant's final contention is that the trial court erred in separating Demian from his sister Molly since there was no compelling reason to do so. Again, we disagree.
*64 We are cognizant of the fact that the most natural and, in many cases, best disposition for a child such as Demian would be to have him remain in the custody of both parents thus preserving the family unit. In a case such as the one sub judice, however, such a disposition is impossible since the family unit was dissolved by the actions of one or both of the parties. Faced with such a situation, a custody court must strive to place the child in the best available environment. Instantly, we feel that that has been done.
This is not to say that we no longer view as compelling the need to keep siblings together if possible. Instantly, however, Molly was placed in her mother's custody by the Court of Common Pleas of Delaware County. That decision evidences that court's perception of Molly's best interests based upon facts and circumstances as they existed on or about December 15, 1977. We were not called upon to review that court's disposition and thus have no way of knowing the basis for that decision. To place Demian in the custody of appellant solely on the basis of a desire to keep siblings together would be to abdicate our responsibility to carefully review custody cases, since we would necessarily be obliged to blindly accept the disposition which placed Molly in the custody of her mother. This we will not do. We do have a complete record in the matter before us, on the other hand and, having reviewed the basis for that decision, are quite satisfied that it supports the court's decision therein.[9]
For all of the foregoing reasons, the order granting custody of Demian to appellee is affirmed.
WATKINS and HOFFMAN, JJ., concur in the result.
NOTES
[1] At the time of the hearing in this matter Demian was 7 and Molly was 5 years of age.
[2] Appellant was in the process of moving to another apartment during the month of August, 1977. To facilitate the move, appellant took the children to her in-laws' residence on August 19, 1977. Appellee visited the children during their stay with their grandparents and, upon his departure, was accompanied by Demian. Demian has remained in his father's custody since that time, while Molly continues to reside with her mother.
[3] Although the fitness of the parent is an important factor in a determination of the best interest of a child, a finding that both parents are equally fit is not equivalent to a finding that the best interest of the child would be equally served with either parent. . . . [A] father can be awarded custody even though both parents are `found to be fit and proper,' as long as the child's welfare would be best served by such a disposition . . . . A father need not prove that the mother is unfit in order to obtain an award of custody.
Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 85-86, 369 A.2d 821, 822 (1977) (citations omitted) (emphasis added).
[4] Appellant not only argues that appellee does not believe in doctors and dentists but also that, because of these beliefs, appellee denied his son needed medical attention. Brief for Appellant at 7-8. Although we realize that an advocate must represent his client zealously, such representation, however zealous, can only be based upon record evidence. On this record, there is no foundation upon which appellant could suggest that appellee allowed the condition of his son's inner ear to worsen or that he in any other way subjugated his son's needs to his personal beliefs and practices.
[5] Appellee's admitted disbelief in immunization is not an indication of parental unfitness since, by legislative fiat, some discretion has been reposed in parents to determine whether to immunize their children. See Act of March 10, 1949, P.L. 30, No. 14, art. XIII, § 1303, 24 P.S. § 13-1303(a). Since the state has a duty to protect the child's best interest and welfare, moreover, an application for modification of custodial rights may always be entertained. Friedman v. Friedman, 224 Pa.Super. 530, 307 A.2d 292 (1973). Thus, if, at some future date, appellee's beliefs do pose a threat to Demian's physical well being, a petition for a change of custody would be entertained. Presently, however, the record which we have reviewed gives us no reason to believe Demian's health is in danger and we refuse to hypothesize such a reason.
[6] Even if material wealth was controlling, we would not reach a contrary conclusion. In this regard, we note appellant's attempt to depict appellee as an uneducated, unemployed individual ill-suited to the role of a custodial parent. See Brief for Appellant at 9. Appellee's employment record is, admittedly, less impressive than we hope it will be in the future. Nonetheless, appellee has worked and, during periods of unemployment, has at least made the effort to seek employment. We thus find ironic, appellant's attempt to use her "voluntary unemployment" as a positive factor in this dispute. While we commend appellant for her drive and ambition in attending college, we cannot ignore that appellant's sole support is government assistance and that she has never even attempted to find work. Nor is caring for her children a factor mitigating against her employment, since she readily admitted using a day care center for Molly while she herself was in class. In resolving this dispute, therefore, we are not faced with a clear choice between positive and negative records of achievement. We thus must ignore the bitterness between the parties and attempt to correctly interpret the record in the decision as to the best available custodian.
[7] This was not a support case. Accordingly, the record does not contain sufficient evidence from which we could determine the validity of appellant's contention.
[8] The fifth prong of appellant's stability argument deals with appellee's dietary habits. We are not persuaded that the stability issue is in anyway affected by appellee's adherence to the macrobiotic diet. Tastes vary. Thus, we are not prepared to dictate the types of food people may or may not eat. Appellant was herself an adherent of the macrobiotic diet prior to her divorce from appellee. Moreover, since appellant herself offered to feed Demian in a manner consistent with his diet should she be granted custody, we fail to see what difference appellee's adherence to the diet could possibly make.
[9] We note that, although visiting one another could never be quite as satisfying to Molly and Demian as growing up together in the same home, they will have the opportunity to visit each other rather frequently. Indeed, since the number and length of visitation periods have been left to the discretion of the parties, much of appellant's concern over the children's separation may be unnecessary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261104/ | 2010 WY 82
COMET ENERGY SERVICES, LLC, a Nevada limited liability company, Appellant (Defendant),
v.
POWDER RIVER OIL & GAS VENTURES, LLC, a Colorado limited liability company, Appellee (Plaintiff).
No. S-09-0225.
Supreme Court of Wyoming. APRIL TERM, A.D. 2010.
June 23, 2010.
Representing Appellant: Thomas F. Reese of Beatty, Wozniak & Reese, Casper, Wyoming.
Representing Appellee: Blake M. Pickett of Welborn Sullivan Meck & Tooley, P.C., Denver, Colorado.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
KITE, Justice.
[¶ 1] This matter is before this Court for a second time. In Comet Energy Servs., LLC v. Powder River Oil & Gas Ventures, LLC, 2008 WY 69, 185 P.3d 1259 (Wyo. 2008) (Comet I), we reversed the district court's order granting summary judgment for Powder River Oil & Gas Ventures, LLC (Powder River) and remanded the matter for trial, concluding that the term "leasehold estate" as used in the oil and gas assignment at issue was ambiguous, and a question of fact existed as to the extent of Powder River's ownership interest in the well and/or lease it had purchased from Forcenergy Onshore, Inc. (Forcenergy). On remand, the district court concluded after a bench trial that Powder River owned the lease at issue in full and Comet Energy Services, LLC (Comet) had no interest in the lease. Comet appealed. We affirm.
ISSUES
[¶ 2] Comet presents two issues for this Court's determination:
A. Does the District Court's admission of and reliance on testimony of the parties' own extrinsic expression of intent as to the meaning of a contract constitute reversible error?
B. Is the District Court's holding that the Assignment, Bill of Sale and Conveyance from Forcenergy to Appellee satisfies the Statute of Frauds reversible error?
Powder River asserts the district court correctly found the intent of the assignment was to convey all of the assignor's interest in the well and associated lease to Powder River and that the assignment does not fall within the statute of frauds.
FACTS
[¶ 3] In August of 1998, Powder River purchased Forcenergy's interest in an oil and gas well located on a federal oil and gas lease in Wyoming. The granting clause of the assignment from Forcenergy to Powder River (1998 Assignment) stated as follows:
Assignor hereby transfers, grants, conveys and assigns to Assignee all of Assignor's right, title and interest in and to the following (all of which are herein called the "Interests"):
1. The oil and gas well(s) described on Exhibit "A" attached hereto ("Wells"), together with all equipment and machinery associated therewith;
2. The leasehold estate created by the lease(s) upon which the Wells are located and/or pooled/unitized therewith ("Leases") and all licenses, permits and other agreements directly associated with the Wells and/or Leases;
3. All the property and rights incident to the Wells, and the Leases, including, to the extent transferable, all agreements, surface leases, gas gathering contracts, salt water disposal leases and wells, equipment leases, permits, gathering lines, rights-of-way, easements, licenses and all other agreements directly relating thereto; and
4. All of the personal property, fixtures and improvements appurtenant to the Wells or used or obtained in connection with the operation of the Wells.
Comet I, ¶ 7, 185 P.3d at 1262. Exhibit A to the 1998 Assignment stated:
This Exhibit "A" contains the description of the wells/units with such description intended to incorporate all of Seller's/Assignor's interest in such wells/units and is not intended to be limited to Assignor's/Seller's interest in the geographic boundaries of the specific spaced/drillsite unit description therein.
State/County Location Well/Unit Name Field
Wyoming/Campbell 4-53N-75W Federal 44-4 Black
Hill
Id.
[¶ 4] Over six years later, in January 2005, Comet contacted Powder River to inquire about purchasing its interest under the 1998 Assignment. At some point during the discussions between Comet and Powder River concerning the sale, a question arose in Comet's view as to the nature and extent of the interest Forcenergy had conveyed to Powder River. Despite Powder River's position that it owned the lease and the well in full, Comet conducted additional investigation in an attempt to ascertain what interest Powder River held as a result of the 1998 Assignment.
[¶ 5] In June of 2005, Comet contacted Forcenergy to determine what interest it had conveyed to Powder River in the 1998 Assignment. Forcenergy advised Comet that it had no records of the lease or any ownership of it. Comet did further checking with the Bureau of Land Management (BLM) and the county and then suggested to Forcenergy that it had conveyed only a wellbore interest and retained the balance of the 760-acre lease. Comet asked Forcenergy to quitclaim the remaining interest to Comet. On August 2, 2005, on the basis of Comet's suggestion, Forcenergy conveyed to Comet any remaining interest it had in the lease without warranting title. In August of 2005, Comet recorded this assignment with the BLM and subsequently informed Powder River of the assignment.
[¶ 6] On November 3, 2005, Powder River filed a declaratory judgment action seeking a determination that "as between Powder River and Comet, Powder River owns all right, title, and interest to the Subject Interest conveyed by [Forcenergy] and that Comet does not own any right, title or interest in the same." On December 29, 2005, Comet filed its answer and a counterclaim seeking a counter-declaration that Powder River obtained only a wellbore interest under the 1998 Assignment, and that Comet acquired the balance of Forcenergy's interest in the lease in 2005. Powder River filed a motion for summary judgment on September 14, 2006. Comet responded to Powder River's motion and filed a cross-motion for summary judgment on November 1, 2006. The district court held a summary judgment hearing on November 6, 2006, and entered an order granting summary judgment in favor of Powder River on February 6, 2007.
[¶ 7] Comet appealed to this Court, claiming the district court incorrectly interpreted the 1998 Assignment as conveying all interest in the lease to Powder River. We concluded:
[T]he district court improperly determined that summary judgment was appropriate under the facts of this case. The term "leasehold estate," as used in the 1998 Assignment, is ambiguous. This ambiguity gives rise to a genuine issue of material fact concerning the intent of the parties to the assignment.
We reversed the summary judgment order and sent the matter back to the district court for trial.
[¶ 8] Back in the district court, Powder River submitted evidence to show that Forcenergy intended the 1998 Assignment to convey all of its right, title and interest in the Federal 44-4 well and the federal lease on which it was located. Comet countered with evidence intended to show that Forcenergy only conveyed a wellbore/drilling unit and not the balance of the lease. After considering all of the evidence, the district court found that Forcenergy intended to convey all of its interest in the well and the lease to Powder River and Comet had no remaining ownership interest in the lease. The district court entered judgment for Powder River. Comet appealed.
STANDARD OF REVIEW
[¶ 9] Our review of a district court's ruling after a bench trial is governed by the following standards:
The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail re-weighing disputed evidence. Findings of fact will not be set aside unless they are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.
Cook v. Eddy, 2008 WY 111, ¶ 6, 193 P.3d 705, 708 (Wyo. 2008) (internal citations omitted).
[W]e assume that the evidence of the prevailing party below is true and give that party every reasonable inference that can fairly and reasonably be drawn from it. We do not substitute ourselves for the trial court as a finder of facts; instead, we defer to those findings unless they are unsupported by the record or erroneous as a matter of law.
Id. The district court's conclusions of law, however, are subject to our de novo standard of review.
Lieberman v. Mossbrook, 2009 WY 65, ¶ 40, 208 P.3d 1296, 1308 (Wyo. 2009).
[¶ 10] We review the trial court's decisions concerning the admissibility of evidence for abuse of discretion. Smyth v. Kaufman, 2003 WY 52, ¶ 13, 67 P.3d 1161, 1165 (Wyo. 2003). The ultimate question in determining whether an abuse of discretion has occurred is whether the trial court reasonably could have concluded as it did. Id.
[¶ 11] Comet also challenges the district court's determination that the 1998 Assignment satisfied the statute of frauds and, in any event, the defense was not available to Comet. The determination of whether a given agreement is within the statute of frauds is a question of law which we review de novo. Act I, LLC v. Davis, 2002 WY 183, ¶ 9, 60 P.3d 145, 148-149 (Wyo. 2002).
DISCUSSION
1. Admissibility of the Evidence
[¶ 12] Comet contends the district court improperly considered inadmissible evidence in concluding that the 1998 Assignment gave Powder River all right and title to the lease. Specifically, Comet asserts the district court allowed testimony over its objection concerning the subjective intent of Forcenergy and Powder River when they entered into the assignment. Powder River responds that the district court properly considered evidence of the circumstances surrounding the assignment, its purpose and the commercial setting at the time.
[¶ 13] Assignments are contracts and are interpreted in accordance with the rules of contract interpretation. Boley v. Greenough, 2001 WY 47, ¶ 11, 22 P.3d 854, 858 (Wyo. 2001). Our primary purpose is to determine the true intent and understanding of the parties at the time and place the agreement was made. Stone v. Devon Energy Prod. Co., L.P., 2008 WY 49 ¶ 18, 181 P.3d 936, 942 (Wyo. 2008). We consider the language in the context in which it was written, looking to the surrounding circumstances, the subject matter, and the purpose of the agreement to ascertain the intent of the parties at the time the agreement was made. Id. Relevant circumstances considered in determining the parties' intent may include the relationship of the parties, the subject matter of the contract, and the parties' purpose in making the contract. Ecosystem Res., L.C. v. Broadbent Land & Res., L.L.C, 2007 WY 87, ¶ 10, 158 P.3d 685, 688 (Wyo. 2007).
[¶ 14] If a contract term is ambiguous, we strive to ascertain its meaning from language in the contract as a whole. Wunsch v. Pickering, 2008 WY 131, ¶ 17, 195 P.3d 1032, 1040 (Wyo. 2008). We look to the meaning of the term at the time of execution and ascertain the parties' intention by considering all of the contract provisions, as well as the situation of the parties. Mullinnix LLC v. HKB Royalty Trust, 2006 WY 14, ¶ 23, 126 P.3d 909, 919 (Wyo. 2006). The plain meaning of a contract's language is the meaning the language would convey to reasonable persons at the time and place of its use. Id. A party's subjective intent, however, is not relevant or admissible in contract interpretation; rather, we use an objective approach to contract interpretation. Omohundro v. Sullivan, 2009 WY 38, ¶ 24, 202 P.3d 1077, 1084 (Wyo. 2009).
[¶ 15] In Omohundro, we were asked to interpret restrictive covenants. One of the parties offered the affidavit of a member of the company that executed the covenants, in which he averred:
[I]t was always the express intent of the . . . owners at all times to burden only Tract Nos. 1-5 with the Covenants. To the extent that the Covenants otherwise identify or reference the Tract No. 6[] lands, it was always the express intent of the. . . owners . . . to provide additional protections for the Tract No. 6 parcel but not to burden the Tract No. 6 with the Covenants in any way . . . ."
We said:
If this averment was intended to be evidence of the declarant's subjective intent with regard to the effect of the covenants on Tract 6, it was not relevant and, therefore, was not admissible. A party's subjective intent is not relevant in contract interpretation cases because we use an objective approach to interpret contracts.
Id., ¶¶ 23-24, 202 P.3d at 1084.
[¶ 16] Comet relies on Omohundro in asserting that the district court improperly considered evidence of Forcenergy's subjective intent in making the 1998 Assignment. The testimony at issue was that of Melvin Baiamonte, Jr., the land manager for Forcenergy at the time of the assignment. Stating that his testimony was "[m]ost indicative of what the surrounding circumstances were like at the time of conveyance," the district court quoted the following portions of Mr. Baiamonte's deposition testimony in its decision letter:[1]
[Q. ... Now, if you go to Exhibit A, Exhibit A identifies a well. And in this case it's the Federal 44-4 well, which is listed as identified in Campbell County, Wyoming in Section 4 53 North 75 West.
Can you tell the court why it is that Forcenergy used this particular means of identifying the properties rather than listing out the entire leasehold acreage?]
. . . .
A. Under normal circumstances, an assignment would have not only listed wells but it would have listed all leases and possible related contracts. That's under ideal circumstances.
Forcenergy acquired so many properties via the two corporate mergers in 1997 that came to Forcenergy without the luxury of assignment, of a recorded assignment in individual courthouses. All we had was merger documents. So we had to rely on well lists that the purchased company would provide us. Some of their lease records were good in certain areas, some of them were very weak.
We took a shotgun approach at these auctions because we did not have a valid go-by, if you wish, a cheat sheet, if you wish, to tell us what leases applied to this particular well. So it was our intention when we prepared the blank draft, . . . regardless of the purchaser, we took a shotgun approach in that it was our intention to give up whatever we had that applied to this particular well or any particular wells that we sold.
We did not know it, what leases were affected by this well. We did not know any contracts. We didn't want to warrant anything. So we took, as I said, a shotgun approach. We did not want to spend any money to do title work that, at an EBCO sale, would not generate any more value for us.
. . . .
[Q. Now, can you tell me whether or not this [Exhibit A] is a wellbore assignment of 30 wells?]
A. As I mentioned earlier, this is the same shotgun approach we took on all of these assignments. And that it was our intention to convey all of our interests, whatever interest we had in these wells and leases and any interests we had in units associated with these wells.
. . . .
[Q. Now, with regard to these 26 assignments that were executed in 1998 as a result of the EBCO auction, which has been identified as Exhibit 302, do you recall Forcenergy ever participating or being asked to participate in a well that would have been on any of these leases that were assigned here?
A. I don't recall anything of that nature.] These properties, the low end properties, were treated as orphans within the company. And I don't recall ever If we would ever have gotten a proposal, we would have had to run around, scratch our heads and figure out what was our ownership. And that was generally pretty bothersome.
. . . .
Q. And after 1998, as land manager for Forcenergy
. . . to your knowledge, did Forcenergy believe or take the position that it owned the balance of this lease outside of the spacing unit for the Federal 44-4 well?
A. We had no further utility, we had no further right, we had no further interest in this lease.
. . . .
[Q. And it says here, sir, "This Exhibit `A' contains the description of wells/units with such description intended to incorporate all of Seller's/Assignor's interest in such well/units and is not intended to be limited to Assignor's/Seller's interest in the geographic boundaries of a specific spaced/drillsite unit description therein."
First of all, did you prepare that language?
. . . .
A. I don't remember if I prepared it or one of our other staff members ... prepared it. Either way I was involved with it, reviewing the draft of it. Either I prepared it or I reviewed the draft.
Q. And what does that language mean to you?]
. . . .
A. It was our intention to sell whatever we had associated with the Federal 44-4, whatever we had, any leasehold, any interests we had associated with that particular well.
. . . .
[Q. And, to your knowledge, sir, from 1998 to, let's say, 2000 when you're still dealing with onshore assets, with regard to, first, Exhibit 300, did Forcenergy ever take the position that it still owned any interest in the Federal 44-4 well or the lease upon which it sat?]
. . . .
A. Forcenergy took no ownership interest regarding this well after the sale.
[¶ 17] From this testimony, there is no question but that Mr. Baiamonte testified Forcenergy intended to sell everything it owned in relation to Federal 44-4 when it drafted the assignment. Viewed in its entirety, in the context in which it was given, however, we are not persuaded that Mr. Baiamonte's testimony constituted irrelevant, inadmissible evidence of Forcenergy's subjective intent. Rather, in its entirety and in the context in which it was given, the testimony was properly admissible evidence of the surrounding circumstances, subject matter and purpose of the assignment.
[¶ 18] Mr. Baiamonte testified that he had worked as a lease analyst, land man or land manager for over thirty years. He worked for Forcenergy as land manager from 1991 until 2000 when it was acquired by another company. In 1998, Forcenergy was interested in divesting itself of many of the oil and gas properties it owned in the Rocky Mountain region, "properties that were not in our core areas, properties that were on the low end value wise, properties that did not generate a lot of cash." In August of 1998, Forcenergy offered for sale at auction numerous of those properties located in seven Rocky Mountain States, including Wyoming. As Forcenergy's land manager at the time, Mr. Baiamonte was responsible for overseeing and directing the sale of these properties. He executed the 1998 Assignment and attested that Powder River had no role or involvement in drafting the terms of the assignment. Rather, it was one of approximately twenty-six identical form assignments drafted by Forcenergy. The only differences in the forms were the assignee names and the well numbers and descriptions.
[¶ 19] Mr. Baiamonte testified that the 1998 Assignment for which Powder River was the high bidder, like the other twenty-five assignments, conveyed the well, the leasehold estate created by the lease upon which the well was located, and all of Forcenergy's interest in the well and lease. He stated it was not a wellbore assignment. He testified that he has drafted and executed many wellbore assignments and there is nothing in the language used in the 1998 Assignment identifying it as a wellbore assignment. He testified that under normal circumstances assignments like those Forcenergy prepared for the 1998 auction would have listed the well and the lease. However, in 1997, Forcenergy acquired numerous properties as a result of corporate mergers that came without recorded assignments. Forcenergy only had the merger documents and so it relied on the well lists the purchased company provided. Because the properties were low end, Forcenergy did not want to spend money doing title work on properties that were going to auction and would not generate any more value to it.
[¶ 20] Mr. Baiamonte was actively involved in preparing the assignments and made the decision to identify the properties for auction by well number. As was customary, Forcenergy provided the lease files for each of the properties to the auction house for review by potential purchasers. The lease files were not returned to Forcenergy unless the particular property did not sell at auction. Mr. Baiamonte testified that after the twenty-six assignments it offered at the 1998 auction were executed, he was not involved in managing the assigned properties and Forcenergy never drilled a well on any of the properties. Addressing specifically the assignment of Federal 44-4, Mr. Baiamonte testified that after the 1998 Assignment, Forcenergy had no further right, no further interest in the lease. Garth Berkeland, who went to work as a senior landman for Forcenergy's successor company in 2002, testified that the company had no records of the lease.
[¶ 21] In addition to the foregoing testimony, Powder River presented the 1998 auction brochure. The brochure includes an "Explanation of Terms" which sets out the abbreviations used in the property descriptions and their meaning. The first abbreviation in the "Explanation of Terms" is "WBO/PDZ" which is stated to mean "WELL BORE / PROD ZONE ONLY." Some of the property descriptions include the abbreviation WBO; the property description for Federal 44-4 does not. Mr. Baiamonte testified Federal 44-4 did not include the abbreviation because Forcenergy never conveyed any wellbore assignments at auction.
[¶ 22] Powder River also presented the testimony of Stephen Barnes, the owner of an oil and gas exploration and production company with twenty-six years of experience in the oil and gas industry, including the acquisition of oil and gas leases. Mr. Barnes, like Powder River, attended the 1998 auction and purchased property from Forcenergy. As with Powder River's purchase, the property Mr. Barnes purchased was described in the auction brochure by the well name and number and did not include any of the abbreviations set out in the "Explanation of Terms." The form of assignment by which Forcenergy conveyed its interest to Mr. Barnes was identical to the one involved in the present case. Mr. Barnes testified that he understood from the listing and the assignment that he was getting all of Forcenergy's interests, right and title in the area, including the wellbore and the lease on which it was located. When asked to look at the Federal 44-4 brochure description, he testified there was nothing in the description indicating that the interest conveyed was limited to the wellbore or the production zone.
[¶ 23] Considered in context, this evidence is precisely the sort of evidence courts may properly consider in determining the parties' intent and understanding at the time and place an agreement was made. Mr. Baiamonte's testimony explaining Forcenergy's reason for offering the twenty-six assignments at the 1998 auction, the process by which the assignments were drafted and why the property descriptions were limited to well descriptions, rather than well and lease descriptions, was the sort of evidence this Court contemplated when we remanded the case for resolution of the meaning of the term "leasehold estate".
[¶ 24] The record is clear that along with his other testimony, Mr. Baiamonte testified that "it was our intention to give up whatever we had that applied to this particular well," "it was our intention to convey all of our interests," and "it was our intention to sell whatever we had associated with the Federal 44-4." Viewed in isolation, these statements might be construed, as similar statements were in Omohundro, as evidence of Forcenergy's subjective intent. However, when considered in the context of Mr. Baiamonte's entire testimony, the auction brochure and Mr. Barnes' testimony, they are not the sort of evidence we found improper in Omohundro. The district court did not abuse its discretion in considering them.
2. Statute of Frauds
[¶ 25] In its second issue, Comet contends the district court's holding that the assignment satisfied the statute of frauds constitutes reversible error. Comet asserts the assignment did not satisfy the statute of frauds because it did not describe the land with sufficient definiteness "to locate it without recourse to oral testimony" and there was no other instrument referenced in the assignment containing a sufficient description. Comet argues that, to satisfy the statute of frauds, Wyoming law requires either the assignment itself or another writing referenced in the assignment to provide a more definite description than that contained in the 1998 Assignment or Exhibit A.
[¶ 26] Powder River's response is threefold. First, it asserts the assignment did not violate the statute of frauds because it identified the well and its location and with that information interested parties could reference the federal lease, which contains an exact description of the property. Citing Flygare v. Brundage, 302 P.2d 759, 761-63 (Wyo. 1956), Powder River contends the fact that the property description could be determined by looking to an extrinsic source, i.e. the federal lease, satisfies the statute of frauds. Second, Powder River contends the statute of frauds defense is not available to Comet because Comet wrongly interfered in Powder River's agreement with Forcenergy. Third, it asserts the defense is unavailable to Comet because it was not a party to the 1998 Assignment.
[¶ 27] The district court held that the 1998 Assignment satisfied the statute of frauds because it was a written agreement to which Forcenergy and Powder River subscribed as required by Wyo. Stat. Ann. § 1-23-105 (LexisNexis 2009). The district court concluded the statute of frauds does not require the written agreement to be so detailed as to leave out any ambiguity. The district court further concluded the statute of frauds defense was not available to Comet because it was not a party to the assignment. Additionally, the district court found that the defense was not available to Comet because:
The evidence indicates that Comet, knowing Powder River believed they had full ownership interest in the lease, and even indicating themselves that they believed Powder River had full ownership interest in the lease, went to Forcenergy and had Forcenergy execute a quitclaim deed. Comet then asserted to Powder River that the rights in the lease belonged to Comet.
From this evidence, the district court concluded Comet interfered with the agreement between Powder River and Forcenergy and was not allowed to assert the statute of frauds as a defense. See Laverents v. Gattis, 60 Wyo. 285, 150 P.2d 867, 871 (Wyo. 1944), stating that "one who wrongfully seizes and retains goods claimed by another under a contract, unenforceable against the previous owner on account of the statute, cannot, according to the better view set up the defense that the contract was within the statute."
[¶ 28] Section 1-23-105 provides in pertinent part as follows:
(a) In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith:
. . . .
(v) Every agreement or contract for the sale of real estate, or the lease thereof, for more than one (1) year[.]
[¶ 29] In order to satisfy this provision,
A valid contract to convey land must expressly contain a description of the land, certain in itself or capable of being rendered certain by reference to an extrinsic source which the writing itself designates. . . . The writing's essential provisions may not be supplied by inferences or presumptions deduced from oral testimony. Parol evidence is admissible to identify described property, but parol evidence may not supply a portion of the description.
Pullar v. Huelle, 2003 WY 90, ¶ 10, 73 P.3d 1038, 1040 (Wyo. 2003). It has long been the rule that in order to satisfy the statute, the writing "must contain the substantial terms of the contract, expressed with such certainty that they may be understood from the contract itself, or some other writing to which it refers, without resorting to parol evidence. . . . And when reference is made in the memorandum to another writing, it must be so clear as to prevent the possibility of one paper being substituted for another." Noland v. Haywood, 46 Wyo. 101, 23 P.2d 845, 846 (1933).
[¶ 30] The 1998 Assignment and Exhibit A clearly identified the well, Federal 44-4, and its specific location, Section 4-T53N-R75W. Comet knew Federal 44-4 was located on BLM Lease #WYW 0309256A. Even if it had not, the identity of the lease, which contains an exact description of the land, was readily determinable by knowing the identity of the well. Thus, by referencing the well, the assignment referenced an extrinsic source from which the precise property description could be easily obtained.
[¶ 31] Additionally, as between the parties to the 1998 Assignment, Forcenergy and Powder River, there was no misunderstanding or uncertainty about the property being assigned. Forcenergy intended to convey, and Powder River intended to receive, all of Forcenergy's right, title and interest in the well and the lease upon which the well was located. The alleged uncertainty arose over six years later when Comet, then a stranger to the 1998 Assignment, proposed to Forcenergy that it had conveyed only a wellbore interest and asked Forcenergy to quitclaim the balance of the lease to Comet.
[¶ 32] The district court found that prior to approaching Forcenergy, Comet knew Powder River believed it owned the well and the lease in full, and that Comet itself had indicated Powder River had full ownership of the lease and well. When Comet approached Forcenergy about the Federal 44-4 lease, Forcenergy checked its records and found nothing relating to the lease. Forcenergy advised Comet that it had no records of the lease or any ownership of it. Forcenergy told Comet if, after doing its own records check, Comet was convinced Forcenergy owned an interest in the lease, Forcenergy would convey it to Comet but would not warrant title.
[¶ 33] In Laverents, 150 P.2d at 871, this Court said:
The statute [of frauds] cannot be raised by those who were neither parties nor privies to the agreement. When the vendor admits the truth of the ... agreement to sell his land, and is willing to perform it, and where the purchaser is also willing, the purpose which requires such agreement be in writing is served . . . .
See also Joseph M. Perillo, Calamari and Perillo on Contracts § 1935 (6th ed. 2009) ("the general rule is that the statute of frauds is personal to the party to the contract and those in privity; a third party may not assert its invalidity...") and 10 Richard A. Lord, Williston on Contracts § 27:12 (4th ed. 1999) ("It is the intent and purpose of the statute of frauds to give to the party to a ... contract, against whom the enforcement of the contract is sought by the other party, the right to assert the statute as a defense to his or her own liability. A third party should not be able to assert the invalidity of such transaction unless he or she is an assignee or successor to a party to the contract.")
[¶ 34] As applied to the facts of this case, in the event Powder River sought to enforce the assignment against Forcenergy, or vice versa, the statute of frauds was intended to give "the party to be charged" the right to assert the statute as a defense to liability. Neither Powder River nor Forcenergy sought to enforce the assignment against the other. Rather, in an action against Comet, Powder River sought a declaratory judgment that by virtue of the 1998 Assignment it acquired full ownership in the well and lease, leaving nothing for Forcenergy to convey to Comet. Because Forcenergy agreed that it intended to assign all of its interest in the well and lease to Powder River, it has no need to assert the protection the statute affords.
[¶ 35] Comet asserts the statute is available to it as a defense because as a subsequent purchaser from Forcenergy, it is a privy of Forcenergy entitled to assert the statute to the same extent Forcenergy would have been. A "privy" is "a person who is in privity with another." Black's Law Dictionary 1200 (6th ed. 1992). Privity means a "connection or relationship between two parties, each having a legally recognized interest in the same subject matter (such as a transaction, proceeding, or piece of property) . . . . " Osborn v. Kilts, 2006 WY 142, ¶ 10 n.4, 145 P.3d 1264, 1267 n.4 (Wyo. 2006), quoting Black's Law Dictionary 1237 (8th ed. 2004).
[¶ 36] As a privy of Forcenergy, Comet had the same legally recognized interest in the Federal 44-4 well and the lease upon which it was located as Forcenergy had. Comet also had the same legally recognized interest in asserting the statute of frauds defense as Forcenergy would have had in a proceeding between Forcenergy and Powder River to enforce the assignment. Having taken the position that it assigned all of its ownership interest in the well and the lease to Powder River in 1998, Forcenergy had no interest in the Federal 44-4 well or lease. The vendor, Forcenergy, having admitted the truth of the assignment to convey all of its ownership in the well and lease to Powder River, and having fully performed, and the purchaser, Powder River, having likewise fully performed, the purpose of the statute of frauds was served. Laverents, 150 P.2d at 871. Under these circumstances, the statute of frauds defense was not available to Comet.
[¶ 37] Citing a number of cases from other jurisdictions, Comet argues otherwise. The cases cited involved vendors who entered into oral agreements to sell property to one person and then repudiated the earlier oral agreement and sold the property to someone else, thereby treating the oral agreement as unenforceable. Brought v. Howard, 249 P. 76, 80 (Ariz. 1926); Gibson v. Stalnaker, 106 S.E. 243 (W.Va. 1921). Under those circumstances, courts have held that the statute of frauds is available to the subsequent purchaser just as it would have been to the vendor. None of the cases cited involved the situation we have here in which a vendor of property entered into a written assignment to sell all of its interest in property to another and never repudiated that assignment. The cases Comet cites also do not involve a vendor who consistently maintained the position that it conveyed all that it had in the first transaction, leaving nothing to convey in a second transaction.
[¶ 38] Affirmed.
NOTES
[1] For the sake of completeness and clarity, we have added, in brackets, the questions and in some cases more of the answers to the portions of the deposition testimony quoted by the district court in its decision letter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724050/ | 699 So. 2d 1026 (1997)
Dirk FRANZEN, M.D. and Dirk Franzen, M.D., P.A., Appellants,
v.
Henry E. MOGLER and Donna Mogler, individually, and as personal representatives of the Estate of Michael Mogler, deceased, Appellees.
No. 96-2356.
District Court of Appeal of Florida, Fourth District.
July 30, 1997.
Rehearing Denied October 22, 1997.
Alyssa Campbell, Ila J. Klion, and Ralph Anderson of Hicks, Anderson & Blum, P.A., Miami, and Bobo, Spicer, Ciotoli, Fulford, *1027 Bocchino, DeBevoise and Le Clainche, West Palm Beach, for appellants.
Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, and Lake Lytal of Lytal, Reiter, Clark, Sharpe, Fountain, Roca & Williams, P.A., West Palm Beach, for appellees.
Kristy C. Brown of Fisher, Rushmer, Werrenrath, Wack & Dickson, P.A., Orlando, for amicus curiae Florida Defense Lawyers Association.
Claudia B. Greenberg of Grossman and Roth, P.A., Miami, for amicus curiae Academy of Florida Trial Lawyers.
FARMER, Judge.
This case presents only issues identical to those we have today decided in St. Mary's Hospital Inc. v. Phillipe, No. 96-2321, 699 So. 2d 1017 (Fla. 4th DCA July 30, 1997). We therefore make the same disposition here. We reverse the award of non-economic damages because we have concluded that the $250,000 limit does not apply to each claimant but, as the statute itself says, to each incident. We affirm on the economic damages issue because we have concluded that such damages are controlled by the Medical Malpractice Act and not by the Wrongful Death Act.
GUNTHER, J. and MAY, MELANIE G., Associate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261218/ | 131 Cal. Rptr. 2d 443 (2003)
106 Cal. App. 4th 1278
Malynda A. De GREZIA et al., Petitioners,
v.
The SUPERIOR COURT of Los Angeles County, Respondent.
Blue Cross of California, Real Party in Interest.
No. B157914.
Court of Appeal, Second District, Division Eight.
March 12, 2003.
Review Granted May 21, 2003.
Haight, Brown & Bonesteel, and Roy G. Weatherup and J. Alan Warfield, Los Angeles; and Marshack, Shulman, Hodges & Bastian and Ronald S. Hodges, Irvine, J. Ronald Ignatuk, Foothill Ranch, and Michael S. Kelly for Petitioners.
No appearance for Respondent.
Craig A. Laidig, Woodland Hills; and Musick, Peeler & Garrett, and Cheryl A. Orr, Los Angeles, for Real Party in Interest.
RUBIN, J.
Petitioners Malynda A. De Grezia, Alfonso G. De Grezia, and their minor children, Mia De Grezia, Isabella De Grezia, and Raquel De Grezia, seek a writ of mandate directing respondent Los Angeles Superior Court to vacate its order granting the motion filed by real party in interest Blue Cross of California to compel *444 arbitration. A writ shall issue directing the trial court to modify its order.
PROCEDURAL AND FACTUAL BACKGROUND
On January 1, 2001, Malynda De Grezia obtained a health insurance policy from real party in interest Blue Cross of California. Shortly after Blue Cross issued the policy, she became pregnant with triplets: the minor petitioners Mia, Isabella, and Raquel De Grezia. The girls were born 13 weeks premature in August 2001, weighing between one and two pounds each. Because of complications from their prematurity, they remained hospitalized until November 2001, and have to date incurred more than $1,000,000 in medical bills.
Within a day or two of giving birth, De Grezia asked Blue Cross to add her husband and her daughters to her health policy effective the day of the girls' birth, which Blue Cross did on September 10, 2001. One week later, however, Blue Cross sent her a letter rescinding the policy. Claiming she had not disclosed certain fertility problems in her insurance policy application, Blue Cross wrote it would not have issued the policy if it had it known about her problems. The letter stated, "Based on the medical history, you would not have been eligible for any of our medically underwritten plans. . . . [¶] Because of this omitted pre-existing medical history, your Blue Cross Agreement . . . will be retroactively canceled to the original effective date." (See Imperial Casualty & Indemnity Co. v. Sogomonian (1988) 198 Cal.App.3d 169,182, 243 Cal. Rptr. 639 [under insurance law, rescission is retroactive termination of policy resulting in no coverage or benefits; cancellation is prospective termination of policy].) Although De Grezia denied knowing of any infertility problems, Blue Cross nevertheless purported to completely unwind the policy. It stated its intention to refund all of her premiums minus whatever claims it had already paid, thus restoring Blue Cross and the De Grezias to their original positions. Its letter stated, "All suspended claims will be declined. All claims paid in error will be adjusted. A full dues refund, less paid claims will be processed."
The De Grezias sued Blue Cross for breach of contract and breach of the implied covenant of good faith and fair dealing. Relying on the insurance policy's arbitration clause, Blue Cross moved to compel arbitration. The clause stated "Any dispute or claim, of whatever nature, arising out of or related to this Plan, or breach or rescission thereof, must be resolved by arbitration. . . ." Blue Cross argued arbitration was available even though it had rescinded the policy because case law permitted arbitration when rescission was based on, as Blue Cross asserted here, fraud in the inducement of the contract. The court granted the motion to compel arbitration.
The De Grezias sought from us a writ of mandate directing the trial court to vacate its order. We issued a notice of intention to grant a peremptory writ in the first instance directing respondent court to vacate its order. We further directed that in the event respondent court elected not to vacate its order, Blue Cross was to file an opposition to the writ petition. Respondent court did not comply, and consequently Blue Cross filed an opposition. We thereafter set the matter for oral argument.
DISCUSSION
The parties devote most of their briefs to arguing whether Bertero v. Superior Court (1963) 216 Cal. App. 2d 213, 30 Cal. Rptr. 719 (Bertero), controls the outcome of this proceeding. The De Grezias put *445 most of their eggs in Bertero's basket, presumably because Bertero's facts closely parallel the facts here. In Bertero, there was "an unqualified assertion by one party that the agreement is invalid; an action brought by the other party for a declaration that the contract is valid; and a subsequent demand by the former for arbitration under the agreement." (Id at p. 219, 30 Cal. Rptr. 719.) With such facts, Bertero held a rescinding party's repudiation of a contract waived that party's right to arbitration under the contract's arbitration clause. (Id. at pp. 221-222, 30 Cal. Rptr. 719.)
Blue Cross attacks Bertero on two fronts. First, it argues Bertero was wrongly decided because the right to compel arbitration survives a policy's rescission. According to Blue Cross, its unilateral disavowal of the insurance policy did not release the De Grezias from their policy obligations, which continued to bind them by stripping them of their constitutionally guaranteed right to a jury trial. Blue Cross thus seeks to be deemed a legal stranger to the De Grezias, owing them nothing, while demanding they forego an important right. Blue Cross cites no authority, however, for such a one-sided proposition, and we decline to establish such a rule here.
Blue Cross's second challenge to Bertero asserts later court decisions for example, Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal. 4th 394, 416-419, 58 Cal. Rptr. 2d 875, 926 P.2d 1061, Britz, Inc. v. Alfa-Laval Food & Dairy Co. (1995) 34 Cal. App. 4th 1085, 1094, 40 Cal. Rptr. 2d 700, and Unionmutual Stock Life his. Co. v. Beneficial Life (1st Cir.1985) 774 F.2d 524, 528 implicitly overruled it by finding that California's arbitration law (Code Civ. Proc, § 1280 et seq.) and the Federal Arbitration Act (9 U.S.C. § 1 et seq.) permit arbitration of rescission claims. Blue Cross's reliance on such authority is misplaced in two respects. First, it establishes a proposition not in dispute: rescission claims are, in principle, arbitrable. But that proposition misses the mark because it arises from decisions where the party demanding arbitration accepted the underlying contract's continued validity and existence. For example, in Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal. 4th 394, 58 Cal. Rptr. 2d 875, 926 P.2d 1061, a bank affiliate successfully demanded arbitration when its customers sued it. Unlike Blue Cross, however, the bank had not rescinded its contract with its customers; the plaintiffs, rather, contended the contract was induced by fraud and therefore its arbitration clause was unenforceable. (Id. at pp. 402-403, 58 Cal. Rptr. 2d 875, 926 P.2d 1061.) The same result held in Britz, Inc. v. Alfa Laval-Food & Dairy Co., supra, 34 Cal. App. 4th 1085, 40 Cal. Rptr. 2d 700, where there was no suggestion that the party demanding arbitration had repudiated or rescinded the contract at issue in the lawsuit. (Id. at pp. 1090-1091, 40 Cal. Rptr. 2d 700; see also Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal. 3d 312, 323, 197 Cal. Rptr. 581, 673 P.2d 251 [party alleging fraud in inducement rescinded agreement and opposed arbitration petition].) Finally, in Unionmutual Stock Life his. Co. v. Beneficial Life, supra, 774 F.2d 524, the rescinding party was also the party resisting arbitration. (Id. at p. 528.)[1]
Notwithstanding the parties' focus on Bertero and those later decisions interpreting the Federal Arbitration Act and *446 California arbitration law, the matter is not as complicated as their briefs suggest. To the contrary, this case lends itself to straightforward application of longstanding contract principles. (Accord Warren Guthrie v. Health Net (2000) 84 Cal. App. 4th 804, 811, 101 Cal. Rptr. 2d 260 [federal and state law require courts to put arbitration provisions on equal footing with ordinary contracts]; Blue Cross of California v. Superior Court (1998) 67 Cal. App. 4th 42, 48-50, 78 Cal. Rptr. 2d 779 [same].) We begin by noting that the insurance policy's arbitration provision assigned to the arbitrator the question of whether the policy was rescinded. The policy stated, "Any dispute or claim, of whatever nature, arising out of or related to this Plan, or breach or rescission thereof, must be resolved by arbitration. . . ." As our Supreme Court has made clear, such terms are enforceable even in the face of a contention that the entire contract was procured by fraud in the inducement. (See Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal. 4th 394, 415, 58 Cal. Rptr. 2d 875, 926 P.2d 1061; see also Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street, supra, 35 Cal.3d at p. 323, 197 Cal. Rptr. 581, 673 P.2d 251 [claim of fraud in the inducement that would result in rescinding contract is arbitrable].) This rule is consistent with United States Supreme Court interpretation of the Federal Arbitration Act. (See Prima Paint v. Flood & Conklin (1967) 388 U.S. 395, 404, 87 S. Ct. 1801, 18 L. Ed. 2d 1270.) Based on the policy's language, we find respondent court correctly ordered, at least as an initial matter, the parties to arbitration.
We further find, however, that contract law requires the following modifications to the court's order. After the matter goes to arbitration, the arbitrator must first determine as a threshold matter whether Blue Cross rescinded the policy. If the arbitrator concludes Blue Cross did not rescind the policy, then arbitration on the merits may, in keeping with the policy's contractual terms, proceed; we note, however, that any such conclusion by the arbitrator would seemingly fly in the face of Blue Cross's insistence that it has rescinded the policy. If, as we anticipate, the arbitrator concludes that Blue Cross rescinded the policy, then the arbitrator must decline the matter and return it to respondent court, for without a contract the arbitrator has no authority to act because the arbitration provision evaporated along with the rest of the contract.[2] "[U]nder well settled principles a contract entered into [as Blue Cross contends] by reason of fraud . . . may be rescinded by the injured party. However, it is axiomatic that in such an instance the entitled party must rescind the entire contract and may not retain the rights under it which he deems desirable and repudiate the remainder [citation]." (Yeng Sue Chow v. Levi Strauss & Co. (1975) 49 Cal. App. 3d 315, 326, 122 Cal. Rptr. 816, italics original; see also Seidman & Seidman v. Wolfson (1975) 50 Cal. App. 3d 826, 836, 123 Cal. Rptr. 873 [party that repudiates arbitration agreement cannot rely on arbitration unless it retracts repudiation]; B.L. Metcalf General Contractor, Inc. v. Earl Erne, Inc. (1963) 212 Cal. App. 2d 689, 693, 28 Cal. Rptr. 382 ["It is true that if a contract which contains provision for arbitration has been entirely rescinded or abandoned the provision for arbitration ceases to exist."].) Returning the matter to respondent court for litigation harmonizes the parties' positions and honors their competing views of the contract's disputed existence: Having rescinded the policy, Blue Cross cannot *447 pick and choose those contractual provisions it favors, such as arbitration, because there is no contract from which to pluck any terms; the De Grezias, who on the other hand claim the policy is enforceable, are then free to exercise their statutory and common law right to waive the arbitration provision which they plainly intend to do here and pursue their claims in court. (See Code Civ. Proc., § 1281.2, subd. (a) [party permitted to waive contractual right to arbitrate]; Chase v. Blue Cross of California (1996) 42 Cal. App. 4th 1142, 1151, 50 Cal. Rptr. 2d 178 ["As with any other contractual right, the right to arbitration may be waived."]; compare with Celtic Life Ins. Co. v. McLendon (Ala. 2001) 814 So. 2d 222, 225-226 [policyholder sued insurer who rescinded contract; policyholder refused insurer's arbitration demand; court compelled arbitration because policyholder cannot "pick and choose" those contract provisions it will honor when seeking to enforce policy].)[3]
Seidman & Seidman v. Wolfson, supra, 50 Cal.App.3d at pages 836-837, 123 Cal. Rptr. 873, does not compel a different result. There, the party demanding arbitration filed suit at the same time, seeking, among other things, declaratory relief of its entitlement to rescission. The arbitration clause at issue stated that the commencement of judicial proceedings did not waive the right to arbitrate. Relying on that express contractual language, the Seidman & Seidman court correctly found the arbitration clause survived and correctly distinguished Bertero, which involved an unqualified repudiation of the parties' contract. To the extent the decision stands, however, for the proposition that a party who rescinds a contract with an arbitration clause may nevertheless later demand arbitration, we respectfully disagree.[4]
DISPOSITION
Let a writ of mandate issue directing respondent court to vacate its order compelling arbitration. Respondent court shall instead issue a new order initially referring to arbitration only the question of Blue Cross's purported rescission of the insurance policy. Respondent court's order shall further direct the arbitrator to proceed with the arbitration on the merits if the arbitrator finds no rescission, but to decline to proceed with arbitration, and to return the matter to respondent court, if the arbitrator finds rescission. Petitioners are entitled to recover costs in this proceeding.
We concur: COOPER, P.J, and BOLAND, J.
NOTES
[1] The relationship between a party's purported repudiation or rescission of a contract and its right to compel arbitration under that contract is currently before our Supreme Court. (St. Agnes Medical Center v. PacifiCare, No. S111323, Jan. 22, 2003.)
[2] Blue Cross acknowledged at oral argument that it had rescinded the agreement, a position it also took in the trial court when it moved to compel arbitration.
[3] Blue Cross relies on a number of out of state cases. To the extent they support Blue Cross's position here, we respectfully disagree with those courts.
[4] The description of the pleadings by the appellate court does not clearly reveal whether the plaintiff there had rescinded the contract or was merely seeking a judicial determination of its right to rescind. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261219/ | 428 A.2d 1151 (1981)
John DeBONAVENTURA et al., Plaintiffs below, Appellants,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, an Ohio Corporation, Defendant below, Appellee.
Supreme Court of Delaware.
Submitted February 13, 1981.
Decided April 1, 1981.
*1152 Alfred J. Lindh (argued), and John T. Gandolfo, Jr., Wilmington, for plaintiffs below, appellants.
Richard E. Poole (argued), Daniel F. Lindley and Gregory A. Inskip, of Potter, Anderson & Corroon, Wilmington, for defendant below, appellee.
Before HERRMANN, C. J., McNEILLY and HORSEY, JJ.
McNEILLY, Justice:
After a trial on the merits in the Court of Chancery judgment was entered in favor of the defendant below in a reported opinion. DeBonaventura v. Nationwide Mutual Insurance Co., Del.Ch., 419 A.2d 942 (1980). Plaintiffs appeal. We affirm largely on the basis of the Chancellor's opinion.
Plaintiffs do not challenge the Chancellor's findings of fact in this appeal, and we will not repeat them in detail herein. For present purposes, the following brief summary of the facts will suffice:
I
Plaintiffs are the owners and operators of several automobile body repair shops in New Castle County. Defendant is, inter alia, an insurer of material damage sustained by motor vehicles as a result of negligence covered by policies issued by defendant. The instant controversy relates generally to defendant's claims settlement practices in cases involving defendant's insureds or third party claimants entitled to recover for vehicular damage under defendant's issued policies. When an accident occurs involving a vehicle covered by one of defendant's policies, an assessment of the extent of damages and the cost of repair is made by defendant's adjusters. In estimating repair costs, defendant's adjusters have been guided by what defendant claims to be the competitive prices for such repairs in the New Castle County market. Such competitive prices take into account certain cost-reducing practices engaged in by a group of repair shops (not including any of the plaintiff shops) which will be referred to herein as the "favored shops." These practices include giving discounts on new replacement parts and the use of rechromed bumpers rather than new bumpers as well as other used parts where feasible. By comparison to the favored shops, the plaintiff shops have traditionally refused to use second hand parts regardless of their condition or to give discounts on new parts. Also, it appears that the plaintiff shops include certain charges in their repair costs, e. g., a "materials" charge based on 10% of labor costs, that are not charged by the favored shops, and that the plaintiff shops charge somewhat more by the hour for labor than the favored shops. In short, the cost of repairing a damaged vehicle at the plaintiff shops is generally more than at the favored shops.
In order to facilitate effecting the necessary repairs and to assure that the competitive prices described above would be available to its insureds and third party claimants, defendant entered into informal agreements with the group of favored shops whereby such shops agreed to accept defendant's written repair estimates on vehicles referred to these shops for repair by defendant. These agreements stated that the favored shops, based on past experience, generally found defendant's estimates to be reasonable and adequate to put the damaged vehicles back into pre-accident condition. Also, the agreements provided that differences of opinion between the favored shops and defendant's adjusters regarding the adequacy of an estimate would be resolved between these shops and defendant without any penalty to the vehicle owners. As a practical matter these agreements enabled defendant to guarantee to its insureds and third party claimants that if they took their damaged vehicles to one of the favored shops, the vehicles would be repaired to pre-accident condition without any additional cost to the vehicle owner other than any deductible which might be required under defendant's policies. Because of the generally higher prices charged by the plaintiff shops and the absence of any similar agreement between them and defendant, no such guarantee could be made to *1153 vehicle owners who insisted on having repairs made at the plaintiff shops or other higher priced shops. In such cases, if the actual cost of repair exceeded defendant's estimate, the vehicle owner would be required to pay any excess amounts out of his or her own pocket.
The Chancellor concluded that as a result of defendant's practices many, if not most, of defendant's insureds and third party claimants requiring vehicular repairs have employed the favored shops recommended by defendant with a resultant loss of potential repair business to the plaintiff shops. However, the Chancellor rejected plaintiffs' claim that this was due to improper economic coercion by defendant finding, rather, that it was due to:
"the economic reality that most car owners with valid claims against the present defendant have decided that the quality of the workmanship and materials available at plaintiffs' shops is not sufficiently superior to that furnished at the competitive or preferred shops recommended by defendant to its insureds and claimants to warrant the paying of money out of one's own pocket to make up the difference between plaintiffs' prices and those offered by those shops which quote more competitive prices without, generally speaking ... furnishing the higher quality of workmanship and materials found at plaintiffs' shops." 419 A.2d at 950.
In other words, the Trial Court concluded that the loss of business suffered by plaintiffs from defendant's practice of channeling its insureds and claimants to the favored shops was primarily due "to the simple fact that their [plaintiffs'] prices are too high and non-competitive to enable them to bid successfully for the work involved in repairing damaged motor vehicles insured by Nationwide." Id. at 951.
II
Plaintiffs' principal contention on appeal is that the Chancellor misperceived the nature of the relief which plaintiffs were seeking, i. e., an injunction restraining defendant from recommending the favored shops to its insureds and claimants for vehicular repairs covered by defendant's policies, and thereby misperceived the central issue in the case. The Chancellor's thorough opinion below completely rebuts this claim and shows without doubt that he fully understood the conflicting claims of the parties and the issues to be resolved. However, assuming arguendo that the Trial Court did labor under a misconception concerning the type of relief being sought, we conclude that such alleged error would not constitute grounds for reversal in the context of this case.
In order for plaintiffs to have been entitled to any relief, it was first necessary for them to establish the liability of defendant for some improper conduct. The primary cause of action relied upon by plaintiffs was defendant's alleged tortious interference with plaintiffs' prospective business opportunities by defendant's diversion of potential customers (i. e., defendant's insureds and claimants) to the favored shops. The Trial Court correctly delineated the elements of this cause of action as follows:
"[A] showing of deliberate interference with a prospective business opportunity requires (a) the reasonable probability of a business opportunity, (b) the intentional interference by defendant with that opportunity, (c) proximate causation, and (d) damages, all of which must be considered in light of a defendant's privilege to compete or protect his business interests in a fair and lawful manner, Bowl-Mor Company, Inc. v. Brunswick Corp., Del.Ch., [6 Terry 49] 297 A.2d 61 (1972), and Regal Home distributors, Inc. v. Gordon, Del.Super., 66 A.2d 754 (1949)." 419 A.2d at 947.
As we read the chancellor's opinion, he essentially concluded that plaintiffs' had failed to establish that defendant's activities were the proximate cause of their damages and that defendant had shown that its activities were a fair and lawful means of protecting its own business interests and the economic interests of its insureds. Thus, the Chancellor's ultimate conclusion was that plaintiffs failed to establish the *1154 liability of defendant for the alleged tort and were not, therefore, entitled to relief of any kind.
As for the issue of proximate causation, the Trial Court found that plaintiffs' loss of prospective business was due less to defendant's channeling of its insureds and claimants to the favored shops than to plaintiffs' deliberate decision not to compete with the favored shops on repair prices.
"Thus, rather than seeking to compete in the market for business to be derived from the automobile body repair trade, plaintiffs ... by the use of boycott measures, by the making of loose but effective agreements with their fellow litigants and other body shop operators on hourly wages and the like, by the giving of complementary estimates and by refusing to use sound used parts in their body repair work or to give discounts on new parts, have priced themselves out of the northern Delaware body repair market ...." Id. 419 A.2d at 949.
And elsewhere the Trial Court noted:
"If an insured or claimant in the course of the settlement of any damage claim covered by insurance issued by Nationwide is satisfied with the latter's estimate of the amount of the reasonable cost to repair a damaged vehicle and thereafter accepts Nationwide's choice of a repair shop to perform such needed repairs, there would appear to be no basis for granting plaintiffs ... relief ..., plaintiffs' grievance being attributable to the simple fact that their prices are too high and non-competitive to enable them to bid successfully for the work involved in repairing damaged motor vehicles insured by Nationwide." Id. at 951.
In other words, plaintiffs' concerted pricing policies were the proximate cause of their loss of business from defendant's insureds and claimants. We find no error in these conclusions by the Trial Court.
As for the proffered defense of privilege, the Trial Court rejected plaintiffs' contention that defendant's channeling practices involved improper coercion against plaintiffs' shops. Id. at 950. Additionally, the Trial Court failed to find, as plaintiffs contended, that defendant's practices were inherently coercive as to defendant's insureds and claimants in deciding where to have their damaged vehicles repaired. After finding no improper coercion by defendant, the Chancellor proceeded to weigh the competing interests of the parties to determine whether defendant's conduct was privileged, see Restatement of Torts § 767 (1939) and Restatement (Second) of Torts § 767 (1979), and concluded that:
"while plaintiffs' right to earn a fair return on their capital investment is clear, viewed in light of the rights of the insureds and the insurer, equally as valid is the right of the insured to have his or her car restored to the condition it was in prior to an accident at no additional cost other than the deductible part of his or her coverage as well as the right of the insurer to have needed repairs adequately accomplished for the least possible cost." 419 A.2d at 951.
The determination of whether an actor's conduct is "privileged" or "not improper" under § 767 of the Restatement and the Restatement (Second) is particularly factual, depending on a wide variety of factors to be applied to all of the facts and circumstances in a given case. In the case sub judice, the determination that defendant's conduct was not improper was made by the Trial Judge who presided over the litigation for more than seven years, including more than thirty days in trial. We are not inclined to second guess the Trial Court's ultimate conclusions, as plaintiffs would have us do, under such circumstances and where, as here, the findings of fact are supported by the record and the law applied to those facts was correct.
III
Plaintiffs' remaining contentions warrant brief consideration.
Plaintiffs argue that the Chancellor erred in failing to consider its cause of action based on an alleged civil conspiracy *1155 between defendant and the favored shops to tortiously interfere with plaintiffs' business relationships. Clearly, the Chancellor considered this claim and implicitly rejected it. The Trial Court concluded that defendant had not improperly interfered with plaintiffs' business relationships. Therefore, there was no unlawful conduct upon which the conspiracy claim could be grounded. Since we have accepted the Trial Court's conclusions as to the defendant individually, we also accept the Court's implicit conclusion of no liability as to the defendant acting in concert with others.
Lastly, plaintiffs argue that the Trial Court erred in failing to consider and resolve its claim that defendant slandered plaintiffs in dealing with its insureds and claimants. This claim is based on the same facts as the other causes of action, and we believe, as with the conspiracy claim, that this contention was considered and implicitly rejected by the Court below. Plaintiff argued that when defendant informs its customers needing repairs that plaintiffs' prices are "too high" and recommends one of the favored shops, defendant expressly slanders plaintiffs. Plaintiffs also argued that every time defendant tells a customer that the favored shops will repair his car for less than plaintiffs' shops, defendant implicitly slanders plaintiffs. The Trial Court found as fact that plaintiffs' prices are higher than those charged at the favored shops and are higher than the competitive prices generally prevailing in the appropriate market, and the record supports these findings.
It is hornbook law that truth is an absolute defense to a defamation action. Here, the Trial Court essentially found that defendant's statements were truthful, thereby implicitly rejecting plaintiffs' slander claim. We find no error in these determinations.
* * * * * *
The judgment of the Court of Chancery is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261220/ | 223 F. Supp. 109 (1963)
Harden D. HART and Mary Jo Hart
v.
Julius SIMONS, Dolph Simons and Hortense Simons, individually and trading as Simco Company,
v.
The UNITED STATES of America.
Civ. A. No. 27953.
United States District Court E. D. Pennsylvania.
October 28, 1963.
James E. Beasley and Sheldon L. Albert, Beasley & Ornsteen, Philadelphia, Pa., for plaintiffs.
John B. Hannum, 3rd, Victor L. Drexel, Pepper, Hamilton & Scheetz, Philadelphia, Pa., Walter E. Rankin, San Jose, Cal., for Julius, Dolph and Hortense Simons.
Drew J. T. O'Keefe, U. S. Atty., Sidney Salkin, Asst. U. S. Atty., Philadelphia, Pa., William E. Gwatkin, Admiralty & Shipping Section, Department of Justice, Washington, D. C., for third-party defendant United States.
GRIM, District Judge.
Plaintiff, Mary Jo Hart, was injured by an electrical shock sustained in the course of her employment with the National Aeronautics and Space Administration. The injuries allegedly were caused by a machine manufactured by the defendant, Simco Company. In this diversity suit, plaintiffs claims negligence and breach of warranty on the part of Simco. Simco has joined the United States as a third-party defendant averring that "* * * if plaintiff, Mary Jo Hart, was injured as alleged in complaint, the said injuries were due to the carelessness of third party defendant [the United States] * * * and was not due to any breach of warranty * * * or negligence on the part of third party plaintiffs * * *."
Plaintiffs have moved to dismiss the United States as a third-party defendant contending that the principle of sovereign immunity and the exclusive liability provisions of the Federal Employees' Compensation Act bar any recovery against the United States.
In United States v. Yellow Cab Co., 340 U.S. 543, 71 S. Ct. 399, 95 L. Ed. 523 (1951), a taxi cab collided with a United States mail truck. The passengers in the cab sued the cab company alleging negligence on the part of the cab driver. The cab company attempted to join the United States as a third-party defendant on the theory that the mail truck driver also was negligent. The Supreme Court permitted this joinder, deciding that the provisions *110 of the Federal Tort Claims Act applied to the situation and that it was proper to join the United States as a third-party defendant in a tort case. Under the authority of the Yellow Cab case, it might seem that Simco Company should be permitted to join the United States as a third-party defendant here as did the third-party plaintiff in the Yellow Cab case. However, an important fact is present in this case which was not present in the Yellow Cab case, namely, the injured person was a federal employee.
As a federal employee plaintiff, Mary Jo Hart, was entitled to file a claim against the United States under the Federal Employees' Compensation Act, 5 U.S. C.A. Ch. 15. But this statute also strictly limits the liability of the United States as follows:
"[7] (b) The liability of the United States or any of its instrumentalities under this Act or any extension thereof with respect to the injury or death of an employee shall be exclusive, and in place, of all other liability of the United States or such instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and anyone otherwise entitled to remover damages from the United States or such instrumentality, on account of such injury or death, in any direct judicial proceedings in a civil action or in admiralty, or by proceedings, whether administrative or judicial, under any other workmen's compensation law or under any Federal tort liability statute * * *." 63 Stat. 861 (1949), 5 U.S.C.A. § 757(b).
The question before the court is whether this exclusive liability section prevents the defendant manufacturer from joining the United States as a third-party defendant in this action.
The problem involved in the present case has been decided in favor of the United States in Drake v. Treadwell Construction Co., 299 F.2d 789 (3rd Cir. 1962). This decision, of course, would control the present case except that Treadwell was considered by the United States Supreme Court which entered an order, 372 U.S. 772, 83 S. Ct. 1102, 10 L. Ed. 2d 136 (1963), as follows:
"The petition for writ of certiorari is granted. The judgment of the United States Court of Appeals for the Third Circuit is vacated and the case is remanded to the United States District Court of the Western District of Pennsylvania for further consideration in light of Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597 [83 S. Ct. 926, 10 L. Ed. 2d 1]."
In the Weyerhaeuser case, a United States ship and a privately owned ship collided. A federal employee on the United States ship was injured in the accident, and received compensation under the Federal Employees' Compensation Act. He sued and collected damages from the owner of the privately owned ship. Each ship then sued the other averring that the negligence of the other caused the accident. Each was found to have been guilty of negligence and under the applicable admiralty rule was required to pay half the damages incurred by the owner of the other ship. The privately owned ship contended that its damages, half to be paid by the United States, included the sum it had paid to the federal employee on the United States ship. As in the present case and in the Treadwell case, it was contended that the exclusive liability section of the Federal Employees' Compensation Act limited the liability of the United States to the compensation which it had paid under the Act. The Supreme Court denied this contention in the Weyerhaeuser case, saying significantly:
"The purpose of § 7(b), added in 1949, was to establish that, as between the Government on the one hand and its employees and their representatives or dependents on the other the statutory remedy was to be exclusive. There is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose *111 to disturb settled doctrines of admiralty law affecting the mutual rights and liabilities of private shipowners in collision cases." Weyer-haeuser S. S. Co. v. United States, 372 U.S. 597, 601, 83 S. Ct. 926, 929, 10 L. Ed. 2d 1 (1963).
Using the same language and following the reasoning of the Supreme Court in the Weyerhaeuser case, it must be concluded also that there is no evidence that Congress in enacting the exclusive liability section of the Federal Employees' Compensation Act was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of the law of contribution or indemnity affecting the mutual rights and liabilities of parties in tort cases.[1] The motion to dismiss must be denied.
This case is somewhat unusual in that it is the plaintiff who is moving to dismiss the third-party action rather than the third-party defendant (The United States). The United States has not joined in the motion to dismiss and it has taken no position relative thereto. The original defendant, Simco Company, contends that a plaintiff has no right to move to dismiss a third-party action brought by an original defendant, that only the third-party defendant may make such a motion. Since the motion to dismiss the third-party action will be denied, the question whether a plaintiff has a right to move to dismiss such an action is moot and need not be decided. It should be noted, however, that Fed.R.Civ. P. 14(a) provides that "Any party may move to strike the third-party claim, or for its severance or separate trial."
In summary, the third-party action in the present case may properly be brought under the Federal Tort Claims Act. United States v. Yellow Cab Co., 340 U.S. 543, 71 S. Ct. 399, 95 L. Ed. 523, (1951). The United States is not shielded from liability by the exclusive liability provisions of the Federal Employees' Compensation Act. Treadwell Construction Co. v. United States, 372 U.S. 772, 83 S. Ct. 1102, 10 L. Ed. 2d 136 (1963); Weyerhaeuser S. S. Co. v. United States, 372 U.S. 597, 83 S. Ct. 926, 10 L. Ed. 2d 1 (1963).
NOTES
[1] A similar conclusion that § 7(b) was not available as a defense to a third-party action against the United States was reached by Judge Gourley of the Western District of Pennsylvania in the Treadwell case on remand from the Supreme Court after the Third Circuit decision had been vacated. Drake v. Treadwell Construction Co. v. United States of America, orders of May 24, 1963 and July 9, 1963 (C.A. No. 14517 W.D.Pa.1963). The United States appealed this judgment against it, but later moved for dismissal of the appeal "* * * for the reason that the Solicitor General of the United States has recommended against appeal. * * *" By order of court dated September 23, 1963, the appeal was dismissed (C.A. 14517, W.D.Pa. Gourley, J.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261222/ | 131 Cal. Rptr. 2d 148 (2003)
106 Cal. App. 4th 580
Joel K. PARNELL, Plaintiff and Appellant,
v.
ADVENTIST HEALTH SYSTEM/WEST et al. Defendants and Respondents.
No. F038004.
Court of Appeal, Fifth District.
February 25, 2003.
*149 King & Hanagami and William K. Hanagami, Los Angeles; Law Offices of Ralph B. Wegis and Ralph B. Wegis, Bakersfield, for Plaintiff and Appellant.
Dennis J. Herrera, City Attorney, Joanne Hoeper, Chief Trial Attorney, and David B. Newdorf, Deputy City Attorney, for City and County of San Francisco; Manuela Albuquerque, City Attorney, for City of Berkeley; and Casey Gwinn, City Attorney, for City of San Diego, as Amici Curiae on behalf of Plaintiff and Appellant.
Latham & Watkins, Robert D. Crockett and Sara Mars, Los Angeles, for Defendants and Respondents.
Manatt, Phelps & Phillips, Barry S. Landsberg and Joanna S. McCallum, Los Angeles, for Catholic Healthcare West; Friestad & Giles, Deborah Giles and Christine Friestad for Scripps Health, as Amici Curiae on behalf of Defendants and Respondents.
OPINION
VARTABEDIAN, Acting P.J.
This is an appeal from a judgment on the pleadings entered against plaintiff on *150 his Unfair Practices Act complaint. We reverse the judgment and remand the case for further proceedings.
FACTS AND PROCEDURAL HISTORY
Appellant Joel K. Parnell had medical insurance through the Wholesale Beer Distributor Industry Trust Health Plan (the Plan). The Plan had entered into a contract with Community Care Network (CCN), a "preferred provider" network, which in turn had contracts for medical services with numerous hospitals and doctors. One such hospital with which CCN had a services contract was respondent San Joaquin Community Hospital, owned and operated by respondent Adventist Health System/West. Both entities are California nonprofit corporations; we will refer to them collectively as respondent.
In 1997, appellant was injured in an automobile accident while he was a passenger in a taxicab. Appellant received hospital care from respondent as a preferred provider under the Plan. Respondent presented a claim for payment to the Plan and received payment in full (from the Plan and from appellant's copayment) at the rates specified in the various provider contracts.
Appellant asserted a tort claim against the driver of the vehicle that struck the taxi. When he did so, respondent filed a notice of lien pursuant to Civil Code section 3045.1 (all further statutory references are to the Civil Code except as noted) in the amount of $14,450.40.
Appellant filed the present action in June of 1999, as a class action asserting unfair business practices (Bus. & Prof. Code, § 17200), violation of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.), trespass to chattels, breach of contract, and negligence. Respondent filed a motion for judgment on the pleadings after it answered appellant's first amended complaint. Appellant sought and received dismissal of the class action claims without prejudice.
After a hearing, the trial court filed a minute order on December 8, 2000, granting respondent's motion for judgment on the pleadings.[1] The court concluded the statutory hospital lien "is not constrained by the Hospital's negotiated discount with a health insurance carrier. . . . The langua[]ge of the statute is plain and unambiguous. While plaintiff does not have a personal liability to the Hospital . . . public policy does not mandate that plaintiff should have . . . a windfall from the third party tort feasor in the form of recovery of the full charge billing of the Hospital. . . ."
After judgment was entered for respondent on January 4, 2001, appellant filed a timely notice of appeal.
DISCUSSION
Background
This case involves the common hospital practice of asserting a lien on a patient's tort recovery even though the patient's direct obligation to the hospital has been satisfied by the patient's own medical insurance provider.[2]
*151 Beginning during the Great Depression of the 1930's, states began to enact hospital lien statutes in an attempt to ameliorate the losses incurred upon treatment of insolvent persons. (See Calder, Florida's Hospital Lien Laws (1993) 21 Fla. St. U. L.Rev. 341, 352-353 (hereafter Calder).) By 1939, about 25 states had such laws. (Id. at p. 352.)
In 1961, California passed its own hospital lien act, codified at sections 3045.1 through 3045.6. (See Stats.1961, ch.2080, § 1.) Although amended and expanded in 1992, the original law provided for a lien for the "reasonable and necessary charges" of emergency care in excess of $100 provided to "any person injured by reason of an accident or wrongful act . . . [not covered by workers compensation] . . . if the person asserts or maintains a claim against another for damages on account of his injuries. . . ." (Former § 3045.1.) Emergency care was defined as that provided within 72 hours. (Ibid.) The lien was limited to 50 percent of the patient's recovery by "judgment, compromise, or settlement agreement." (See former § 3045.4; Mercy Hospital & Medical Center v. Farmers Ins. Group of Companies (1997) 15 Cal. 4th 213, 222, 61 Cal. Rptr. 2d 638, 932 P.2d 210 (Mercy Hospital).)
The original purpose of hospital lien acts nationwide was to "assure hospitals a source of payment for the medical care they provide[d] to nonpaying or indigent accident victims." (Calder at p. 344.) California's statute was no different. As stated in a committee report prepared in connection with the 1992 amendments: "The author states that hospitals, including those that operate trauma centers, treat accident victims, many of whom are uninsured. Many hospitals have problems keeping their emergency rooms open because a large proportion of accident victims are uninsured. The purpose of this bill is to make it possible for hospitals to seek payment, particularly from insurance companies whose clients have accidentally or negligently hurt another person. . . ." (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 2733 (1991-1992 Reg. Sess.) May 6, 1992, p. 2.)
The 1992 amendments (see Stats.1992, ch. 302, § 1) abolished the distinction between emergency and other hospital treatment: the lien was available for the "reasonable and necessary charges of the hospital." (§ 3045.1.) The hospital lien law has not been amended since 1992.
It is widely understood that much has changed in the area of charges for hospital care since 1961, and even since 1992. As insurance companies sought to contain growth in the cost of hospitalization, through preferred provider agreements and capitation-based health maintenance organizations, there has opened an increasingly wider gap between hospitals'"usual and customary" charges and the amount actually paid for such services by health insurers. (See Fong, Scripps Clinic Plans To Alter HMO Pacts, San Diego Union-Tribune (Nov. 9, 2001) 2001 WL 27299297; Fong, S.D. Hospital Rates Up 19% since 1997, San Diego Union-Tribune (July 31, 2002) 2002 WL 4616969.)
The practice of seeking payment from the patient for amounts not covered either by deductibles or insurance company payment is known as "balance billing." The practice first became controversial in the context of the federal Medicaid law, since administrators of those programs were the *152 most aggressive in reducing payment to hospitals for treatment of participants in the Medicaid program. (Cf. Palumbo v. Myers (1983) 149 Cal. App. 3d 1020, 1028-1029,197 Cal.Rptr. 214.)
Many contracts between health insurers and hospitals now provide that the hospital will not seek to bridge the gap between stated charges and payments from the insurer by making a claim against the insured. (See, e.g., Whiteside v. Tenet Healthcare Corp. (2002) 101 Cal. App. 4th 693, 703, 124 Cal. Rptr. 2d 580; Nishihama v. City and County of San Francisco (2001) 93 Cal. App. 4th 298, 306-307, 112 Cal. Rptr. 2d 861.)
As the gap between "usual and customary charges" and the discounted rate paid by insurers continued to grow, treatment of insured patients began to look increasingly like treatment of uninsured patients, at least from the hospitals' fiscal point of view. (See Hundley, Bleeding Money, St. Petersburg Times (Feb. 24, 2002) 2002 WL 15925103.) A "Notice of Benefits" entered as an exhibit in the present case, for example, shows that appellant's insurer paid $5,000 (including appellant's $1,000 copayment) in settlement of usual and customary charges of $18,721.80. Faced with shortfall similar in many ways to the shortfall addressed by the original hospital lien acts, hospitals have turned to the assertion of liens under those same hospital lien laws.
In 2000, as a result of complaints about inequitable balance billing by health care associations, the Legislature considered the more limited issue of contract liens asserted by those associations and acted to place limits on the extent of such liens in the balance billing context. (See § 3040; see Assem. Com. on Judiciary, Com. Bill Analysis of Sen. Bill No. 1471 (1999-2000 Reg. Sess.) June 20, 2000, p. 2.) At that time, a group of plaintiffs lawyers urged the Legislature to reexamine the "entire area of health care liens." (Id. at p. 3.) The group pointed out a federal district court case from Texas holding that the Texas hospital lien act did not permit a balance billing lien by a hospital paid in full at its contract rate by the patient's medical insurer (Medicare). (See Satsky v. United States (S.D.Tex.1998) 993 F. Supp. 1027.) The Legislature, however, chose not to address statutory liens at that time.[3]
Public Policy and Statutory Interpretation
While it may well be fair and equitable for an indigent or otherwise nonpaying patient to share up to half of his or her tort recovery with a hospital that has provided for his or her care, the issue of fairness and equity becomes somewhat clouded when the patient, through purchase of health insurance, has made prior arrangements with the hospital to pay for treatment he or she may need at a future time. Such a patient may have purchased medical insurance specifically to limit his or her exposure for medical costs to the deductibles and copayments stated in the insurance policy.
Similarly, it may well be fair as a matter of policy to require a patient who asserts a claim for, and recovers, damages for the usual and customary charges for his or her tort-caused medical treatment to actually *153 pay those usual and customary charges. But the issue of fairness becomes clouded when the patient recovers less than the full "value" of his or her injury (as defined by usual principles of tort law), for example, through a policy-limits settlement that does not differentiate among the various elements of the damages claim that would be presented to a jury.
In these various circumstances, one party may well perceive that other parties received a windfall, no matter how the situation is resolved. If the patient is able to claim and recover the full usual and customary hospital charges, he may be perceived as reaping a windfall if he is not required to pay that over to the hospital. (See Hanif v. Housing Authority (1988) 200 Cal. App. 3d 635, 641, 246 Cal. Rptr. 192.) If the patient's damages claim is limited to actual, discounted payments to the hospital under a contract with a medical insurer, the tortfeasor may be perceived as reaping a windfall. (See Lee, Reasonable Medical Treatment Means Actual Cost (Summer 2002) 17 Defense Comment 14 [suggesting tort defense attorneys can achieve a reduction of both special and general damages by limiting plaintiffs to proof of actual medical costs].) If the hospital is paid both its contract rate, which it has agreed will fully discharge the bill for services, and its usual and customary charges merely because there is a solvent tortfeasor, the hospital may be perceived as reaping a windfall. (See Welf. & Inst.Code, § 14019.4, subd. (a) ["Any provider of health care services who obtains a label or copy from the Medi-Cal card or other proof of eligibility pursuant to this chapter shall not seek reimbursement nor attempt to obtain payment for the cost of those covered health care services from the eligible applicant or recipient, or any person other than the department or third party payer who provides a contractual or legal entitlement to health care services."].)
Our task in construing a statute, however, is not to supplant the Legislature's view of fairness or good public policy but, instead, is to implement the law in accordance with the Legislature's intent. (See Droeger v. Friedman, Sloan & Ross (1991) 54 Cal. 3d 26, 41, 283 Cal. Rptr. 584, 812 P.2d 931.) In the present case it seems reasonably clear that the Legislature, in originally enacting the 1961 hospital lien act, did not contemplate its application in the context of "balance billing," because the gap between insurance payments for services and "usual and customary charges" for services was not yet of problematical dimensions. (Cf. Calder at p. 367.) When the lien act was amended in 1992, there was no indication in the available legislative history that the applicability of the act in the balance billing situation was considered in any manner.
On occasion, courts must determine from the overall purpose and the legislative history and intent of a statute its applicability in circumstances not directly addressed by the language of the law. (Cf. Regents of University of California v. Superior Court (1999) 20 Cal. 4th 509, 534, 85 Cal. Rptr. 2d 257, 976 P.2d 808; Spangler v. Memel (1972) 7 Cal. 3d 603, 610-611, 102 Cal. Rptr. 807, 498 P.2d 1055.) This is such a case. The question presented is whether the hospital lien act permits a hospital to assert a lien for the unpaid balance of its usual and customary charges after payment by a medical insurer of the full contract obligation for those charges. In answering this question, we are not writing on a blank slate.
Swanson
In Swanson v. St. John's Regional Medical Center (2002) 97 Cal. App. 4th 245, 118 Cal. Rptr. 2d 325 (Swanson), Division Six of *154 the Second Appellate District of the Court of Appeal considered the same issue presented to us in the present case. The Swanson opinion concluded that the hospital's statutory lien was not extinguished by payment of discounted charges by the patient's medical insurer. (Id. at pp. 249-250, 118 Cal. Rptr. 2d 325.) Impliedly, Swanson concluded that the hospital's lien exists for any portion of a patient's hospital bill not covered by the patient's medical insurance. (See id. at p. 249, 118 Cal. Rptr. 2d 325.)
Two premises are key to Swanson's analysis; the court cites as authority for each premise Mercy Hospital, supra, 15 Cal. 4th 213, 61 Cal. Rptr. 2d 638, 932 P.2d 210. First, Swanson rejects the idea that a lien only secures payment of an underlying debt or obligation: the hospital lien under Civil Code section 3045.1 "is a statutory lien and does not require that the patient owe the hospital a debt." (Swanson, supra, 97 Cal.App.4th at p. 249, 118 Cal. Rptr. 2d 325, citing Mercy Hospital, supra, 15 Cal.4th at pp. 222-223, 61 Cal. Rptr. 2d 638, 932 P.2d 210.) Second, Swanson concludes the hospital "lien is not a charge against the patient. To the contrary, it is a `statutory medical lien in favor of a hospital against third persons liable for the patient's injuries.'" (Swanson, supra, 97 Cal.App.4th at p. 250, 118 Cal. Rptr. 2d 325, quoting from Mercy Hospital, supra, 15 Cal.4th at p. 217, 61 Cal. Rptr. 2d 638, 932 P.2d 210.)
From these two premises, Swanson concludes: "[W]e are bound by the holding in [Mercy Hospital]. Because the Legislature has determined that hospital liens are exempt from balanc[e] billing limits, we may not override that determination." (Swanson, supra, 97 Cal.App.4th at p. 251, 118 Cal. Rptr. 2d 325.)
We believe the Swanson court miscontrues Mercy Hospital; thus its reliance thereon is misplaced, and the two premises it draws from that opinion are erroneous. Instead, as we shall explain, we believe the statute should not be construed to cut the hospital lien free from the mooring of the underlying debt to which it rightfully attaches.
Mercy Hospital
Mercy Hospital concerned the breach by a tortfeasor's insurance company of its duty under section 3045.4 to pay to a hospital "the amount of [the hospital's section 3045.1] lien claimed in the notice, or so much thereof as can be satisfied out of 50 percent of the moneys due under any final judgment, compromise, or settlement agreement after paying any prior liens. . . ." (§ 3045.4.) The question before the court was whether the tortfeasor's insurer, who distributed settlement proceeds without paying the lien, was liable for the entire amount of the lien or was liable for the limited, 50 percent portion it should have paid to the hospital. (See Mercy Hospital, supra, 15 Cal.4th at p. 219, 61 Cal. Rptr. 2d 638, 932 P.2d 210.) Although not expressly stated, it appears from the court's factual summary that the injured party was uninsured and that he made no payments on his hospital bill. (See id. at p. 216, 61 Cal. Rptr. 2d 638, 932 P.2d 210.)
The Supreme Court began its discussion by quoting section 2872: "A lien is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act." (We note that this definition is applicable to title 14 of the Civil Code, which includes section 3045.1, the hospital lien provision.) The court then stated: "There are various types of personal property liens; the one at issue in this case is a statutory nonpossessory lien." (Mercy Hospital, supra, 15 *155 Cal.4th at p. 217, 61 Cal. Rptr. 2d 638, 932 P.2d 210.)
The Mercy Hospital opinion then notes that the hospital lien is merely one tool the hospital may employ: "Sections 3045.1 through 3045.6 are not exclusive, and the hospital may still proceed directly against the patient for any unpaid balance." (Mercy Hospital, supra, 15 Cal.4th at p. 217, 61 Cal. Rptr. 2d 638, 932 P.2d 210.) The court states that the "apparent purpose of former section 3045.4 was to secure part of the patient's recovery from liable third persons to pay his or her hospital bill, while ensuring that the patient retained sufficient funds to address other losses resulting from the tortious injury." (Ibid.) Later, the opinion notes legislative history to the effect that the hospital lien act originally "was apparently enacted in response to a California Hospital Association's membership survey that revealed at least $90,000 was lost as a result of injured persons collecting a judgment or settlement and failing to `discharge any portion of the hospital bill.' [Citation]." (Mercy Hospital, supra, 15 Cal.4th at p. 222, 61 Cal. Rptr. 2d 638, 932 P.2d 210, italics added by the Mercy Hospital.)
Not only is the Mercy Hospital court's description of hospital liens fully consistent with the legislative history disclosing a focus of the hospital lien act on uninsured or insolvent patients, it also expressly includes the hospital lien as among those statutory liens securing "the performance of an act." (§ 2872.) As such, the lien is merely an incident of the underlying debt or obligation. (Lewis v. Booth (1935) 3 Cal. 2d 345, 349, 44 P.2d 560.) And while the statute creates a direct obligation of an insurer or tortfeasor who ignores its obligations under section 3045.4, that is not the obligation the lien secures. The section 3045.4 obligation is enforced not through a lien, but by suit against the insurer or tortfeasor, as was done in Mercy Hospital.
We now turn to the passages relied upon by the Swanson opinion. For the proposition that "stare decisis" establishes that the hospital lien exists independently of any debt owed by the patient to the hospital, Swanson cites the following passage from Mercy Hospital: "Whatever principles might generally apply to liens, former section 3045.4 is a statutory, not a common law, lien. The Legislature is, of course, free to define and limit such a lien, and has done so in this case." (Mercy Hospital, supra, 15 Cal.4th at pp. 222-223, 61 Cal. Rptr. 2d 638, 932 P.2d 210.) Read in context, the limitation to which the court refers is the limit of the tortfeasor's lien liability to 50 percent of the settlement. The court was not referring to a legislative expansion of common law liens to make the hospital lien exist free from any underlying debt of the patient to the hospital.
The second passage relied upon by Swanson, its quotation from page 217 of the Mercy Hospital opinion, seems equally misplaced. Swanson quotes the Mercy Hospital court as stating the hospital lien is a "statutory medical lien in favor of a hospital against third persons liable for the patient's injuries." (Mercy Hospital, supra, 15 Cal.4th at p. 217, 61 Cal. Rptr. 2d 638, 932 P.2d 210.) The full passage states: "Mercy's lien is provided for and defined by sections 3045.1 through 3045.6. These sections, enacted in 1961, were California's first statutory medical lien in favor of a hospital against third persons liable for the patient's injuries. Sections 3045.1 through 3045.6 are not exclusive, and the hospital may still proceed directly against the patient for any unpaid balance." (Ibid.) The passage is immediately preceded by the following sentence: "Here, of course, we address the parameters of a lien that compensates a hospital for providing *156 medical services to an injured person by giving the hospital a direct right to a certain percentage of specific property . . . otherwise accruing to that person." (Ibid., italics added.)
Taking this entire passage in context, we cannot agree that it establishes that a statutory hospital lien "is not a charge against the patient," as Swanson concludes. (See Swanson, supra, 97 Cal. App.4th at p. 250, 118 Cal. Rptr. 2d 325.) Instead, Mercy Hospital recognizes that the hospital lien attaches to property that "otherwise" belongs to the patient. While it attaches to that property right when it is in the hands of the third-party tortfeasor or insurer, it only does so because of the patient's right and interest in that property. (Compare Whiteside v. Tenet Healthcare Corp., supra, 101 Cal.App.4th at p. 703, 124 Cal. Rptr. 2d 580 [amounts payable by patient's insurance company directly to hospital are not property of the patient].)
Respondent's View of the Text and Legislative History
Respondent does not attempt to explain Swanson's holding when viewed in the full context of the discussion in Mercy Hospital. Instead, respondent cites as support for its position that the hospital lien exists without regard to an underlying debt a passage in the Senate Judiciary Committee's analysis in the hearing report on Senate Bill No. 1471, which created section 3040 governing balance billing in the context of contract liens of health maintenance organizations.
The passage from the bill analysis states that the bill to create section 3040 "does not intend to limit hospital liens now available under Civil Code Section 3045.1, nor would it affect liens that a treating medical service provider may assert independently of a health care service plan or disability insurer. . . . [We omit the brief discussion of the Texas case described above, in which the court held that payment of the insurance contract billing extinguished the hospital lien for the covered services.] Although in California hospitals have an independent right to assert a lien under Civil Code Section 304.5.1, this case merely illustrates how the area of health care liens is evolving, as more and more consumers become aware of and challenge billing practices of health care service plans." (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1471 (1999-2000 Reg. Sess.) as amended April 27, 2000, pp. 4-5, italics added.)
The statement in the committee analysis is the equivalent of obiter dicta in a judicial opinion: it is a statement made in passing, not purporting to decide the matter stated and not necessary to the holding of the opinion. (See Stockton Theatres Inc. v. Palermo (1956) 47 Cal. 2d 469, 474, 304 P.2d 7.) The statement does not cite authority for its claim and is irrelevant to the discussion of the actual purposes of the bill before the committee. We do not believe the analyst's statement reflects California law.
Respondent next contends that the "plain text, purpose and legislative history" of the hospital lien act "do not support any restrictions on the hospital's ability to levy liens thereunder." (Initial capitalization omitted.) Respondent's assertion that section 3045.1 has a clear and unambiguous meaning is erroneous: section 3045.1 is ambiguous and requires judicial interpretation.
First, the phrase "reasonable and necessary charges" is not defined in the statute and, as far as we can discern, is not a phrase with a fixed usage in the law or in the medical services industry. The traditional formulation for a hospital's as-billed charges is that such charges are "usual and customary" or "reasonable and customary." *157 (See, e.g., Van Ness v. Blue Cross of California (2001) 87 Cal. App. 4th 364, 368, 104 Cal. Rptr. 2d 511.) The traditional formulation for the medical services provided by the hospital is that they were "medically necessary" or "reasonable and necessary." (See, e.g., County of San Diego v. State of California (1997) 15 Cal. 4th 68, 105, 61 Cal. Rptr. 2d 134, 931 P.2d 312.) In the ordinary use of language, charges that are "usual and customary" might well be synonymous with "reasonable" charges, but one might wonder about the use of "necessary" to further describe the "reasonable" charges. (See Eden Hospital Dist. v. Belshé (1998) 65 Cal. App. 4th 908, 920, 76 Cal. Rptr. 2d 857 [citing Medicaid regulation requiring that "costs" be "necessary and proper" as distinct from requirement that services be reasonable and necessary].)
It would seem that under a plain-language reading of the statute, the balance-billing charges cannot be deemed "necessary" in any usual sense of the word: such charges are not necessary to obtain services for the patient because he or she has an existing contract right to such services at the rates provided by the medical insurance policy and, under the terms of the various provider agreements, the debt arising from exercise of this right is fully and completely satisfied by the insurer's payment of the contract rate for such services.
In addition, the "plain language" of the hospital lien act, as respondent would read it, does not require the hospital to deduct from its lien amount any payments, partial or otherwise, it receives toward payment of the "reasonable and necessary charges" for services provided to the patient. Thus, as stated by respondent in its trial brief in the court below: "Under common law lien theory, a lien may only be levied as a means of securing an obligation or indebtedness; however, in this case, SJCH levied a statutory lien against a third party. The major limitation under this statutory lien is that it has to be levied for `reasonable and necessary medical charges.' Obligation or indebtedness is [] not a contingency." (Italics added.)
Presumably, respondent would not overtly assert its right to be paid by the patient's medical insurer as well as to be paid in full by each tortfeasor who can be held responsible for the patient's injury. Presumably, whether through an exegesis of "reasonable" or "necessary," or both, respondent would contend that the statute impliedly limits it to a single payment for its full as-billed charges. But the point is, the plain language of the statute, if viewed as rendering the patient's debt or obligation to the hospital irrelevant, does not express any such limitation. The only limitation expressed in the hospital lien act is the 50 percent of net recovery limit contained in section 3045.4. Any other limitation must be introduced through statutory construction.
The Silence of the Legislative History
A striking absence from the available legislative history undermines respondent's interpretation of the hospital lien act. We may view the matter through the lens of an example: An uninsured hospital patient incurs a bill of $5,000. Upon discharge, the patient goes to the hospital finance office and says, "I can pay you $3,000 now or $100 per month for 50 months. Take one or the other, or sue me." The hospital representative elects to accept $3,000 as full payment of the patient's bill. The next day, however, the hospital files a lien for $2,000 against the patient's potential recovery from the tortfeasor who put the patient in the hospital. Does the hospital lien law, on its face, allow or disallow such a lien? Would such *158 a lien comport with the "purpose and history" of the hospital lien act?
We think, based on the purposes of the act as disclosed in the available legislative history, the hospital lien act did not, and was not intended to, rewrite California law of accord and satisfaction in such a manner as to permit the hospital to assert a lien in the foregoing circumstances. (See §§ 1521-1523 [statutory principles of accord and satisfaction].) Nor do we see any indication in the language, purpose, or history of the law that would effect such a change if the compromise were reached with, and the discounted charges were paid by, the patient's relatives, church, or medical insurer.
Whether it makes the choice at the time of entering into a provider contract with a medical insurer or in negotiations with the patient after services have been provided to a particular patient, it is the hospital's choice to accept or refuse the level of payment offered by the payor. In either case, we see nothing in the statute designed to relieve a hospital of its choice to provide services at a price below the "usual and customary" charges for such services.
The Documentary Evidence in the Present Case
It is of some interest, in this regard, to examine the language of the documents in the record in the present case.
When appellant was billed for usual and customary charges of $18,721.80 in 1997, he received from the insurer a notice that the insurer had paid $5,000 on the bill. The "amount ineligible" column of the notice, indicating an amount of $13,721.80, was marked with "code 32." At the foot of the notice, code 32 is explained as follows: "This amount is the CCN discount received for using a CCN facility.[4] This amount will be `written off' by the facility." This "written off balance is, however, the primary basis for the hospital lien filed against appellant's recovery in his action against the tortfeasor who put him in the hospital. Hospital officials testified that the debt was "written off only for the hospital's accounting purposes.
The contract between the hospital and CCN provides that the hospital agrees to provide services for the "reimbursement amounts" set forth in the contract. "Reimbursement amounts" is defined as "payment in full to Contract Hospital for Inpatient and Outpatient Services provided to a Beneficiary pursuant to Payor Agreements . . . ."
While this contract does provide that "it is not the intention of either CCN or Contract Hospital that [beneficiaries] occupy the position of intended third party beneficiaries of the obligations assumed by either party to this Contract," the contract also provides that "Contract Hospital hereby specifically authorizes CCN to act in its behalf in contracting for the provision of Inpatient Services and Outpatient Services at the Reimbursement Amounts set forth" elsewhere in the contract. Pursuant to this authority as agent for the hospital, CCN entered into its contract with appellant's medical insurer. That contract, which contains no similar exclusion of the insureds as third-party beneficiaries, states that the insurer "agrees to reimburse . . . the preferred providers according to the Reimbursement Amounts specified in CCN's Provider Agreements. Those Reimbursement Amounts include deductible and copayment amounts and *159 shall constitute payment in full for Health Care Services . . . provided to Beneficiaries by CCN providers." Respondent's summary claim that it is not bound by this contract is frivolous.[5]
CCN also provides a patient manual to insureds participating in the medical insurance program offered by the Beer Wholesalers Association. That manual explains: "CCN is a voluntary, optional program for you. Each time you need care, you decide whether to use a CCN preferred provider. Some advantages of choosing CCN providers are that: [¶] . . . [¶] They will collect only patient copayments (deductibles, coinsurance and noncovered services), not the full amount of the charges;. . . ." The manual also states that the insured will receive an "`Explanation of Benefits' from your health plan [which] should show both the billed charges and the CCN contract rates for services. You are not responsible to pay the difference between these amounts."
The trial court concluded that section 3045.1 should not be interpreted to implement these contract limitations on the patient's obligation to the hospital because "public policy does not mandate that plaintiff should have the benefit of a windfall from the third party tort feasor in the form of recovery of the full charge billing of the Hospital where discounted access to health care has been provided by the Hospital's contract with health insurance carrier." Similarly, in its trial brief, respondent took the position that "the lien procedure . . . merely seeks to intercept payments Parnell claims to have incurred as medical expenses which he did not incur, up to the market value of the Hospital's services."
The first problem with both statements is that the pleadings do not disclose that appellant here pled and proved in an action against the tortfeasor that he had medical bills from this hospital in excess of the amounts paid by his medical insurer, nor that he prayed for duplicate recovery of what the medical insurer paid the hospital.[6] The second problem is that the interpretation of a statute is not an ad hoc exercise that is to be based upon the facts of one case in isolation from the universe of cases to which the statute potentially may be applicable.[7] The third problem is that, granting that the equities might favor respondent if the facts were as the statements presuppose, there is no proposed construction of the statute that would be limited to the situation described while excluding the class of cases in which the award or settlement does not compensate the injured patient for all his or her compensable *160 losses in addition to the "usual and customary" charges he or she did not incur.
Based on the foregoing considerations, we conclude a hospital that has received full payment for services under the terms of its contract with a medical insurance provider is not entitled to file a lien to recover the difference between that payment and the hospital's "usual and customary" charges for similar services. Because section 3045.1 does not authorize a lien in those circumstances, the judgment of the trial court must be reversed.
Issues not Presented by this Appeal
Not decided in the trial court and unbriefed on this appeal is the issue of litigation immunity for the filing of notices of liens. Section 47, subdivision (b), undoubtedly precludes certain of appellant's causes of action to the extent they are based on the filing of such notice. (See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal. 4th 163, 182, 83 Cal. Rptr. 2d 548, 973 P.2d 527.) At a minimum, however, the litigation privilege does not bar appellant from seeking declaratory relief, including declaratory relief construing the applicability of a statute in particular circumstances. (See Wilton v. Mountain Wood Homeowners Assn. (1993) 18 Cal. App. 4th 565, 571, 22 Cal. Rptr. 2d 471; Lane v. City of Redondo Beach (1975) 49 Cal. App. 3d 251, 255, 122 Cal. Rptr. 189.)
On this appeal, we will not attempt to sort out the causes of action and types of relief to which appellant may be entitled. We hold only that, based on the pleadings before the trial court, appellant has stated a cause of action for declaratory relief under the Unfair Practices Act (Bus. & Prof.Code, § 17200) and the judgment against him, dismissing this action, was erroneous.
DISPOSITION
The judgment is reversed. The matter is remanded for further proceedings in accordance with the views expressed in this opinion. Appellant is awarded costs on appeal.
WE CONCUR: LEVY and CORNELL, JJ.
NOTES
[1] The court took the motion under submission and then, by stipulation, conducted a trial sitting without a jury, limited to liability and equitable issues. During the trial, the parties stipulated to various facts for purpose of the motion. Other evidence was received for purposes of the trial only. At the close of trial, the court took the matter under submission. The ensuing statement of decision determined only the motion for judgment on the pleadings, and the judgment as entered conformed to that ruling.
[2] We recognize that at least two cases raising this issue are currently pending before the Supreme Court. (McMeans v. Scripps Health, Inc, review granted Nov. 26, 2002, S109573; Olszewski v. Scripps Health, review granted Aug. 29, 2001, S098409.)
[3] A former collections supervisor for respondent testified that three or four years before trial, which was held in 2000, respondent stopped filing balance-due liens against patients with Blue Cross medical insurance because "there was an objection from Blue Cross based upon, I believe, the contract" between that insurer and respondent. It is not clear whether the parties considered this information as submitted in conjunction with the motion for judgment on the pleadings. (See fn. 1, ante.)
[4] The various contracts require appellant's medical insurer to encourage its insureds to use "preferred providers" and to structure its plan so that insureds' deductibles and other costs are less if they use preferred providers.
[5] Respondent apparently claims appellant has no enforceable right against it for services to be provided at the contract rate. According to respondent, any such contract limitation "relates to CCN's obligations and does not restrict the Hospital's rights under its Hospital Contract or the [hospital lien act]."
[6] The evidence admitted at trial (see fn. 1, ante) was to the effect there was a policylimits ($15,000) settlement and that appellant had $42,000 in lost wages, together with over $50,000 in medical bills. In addition to his initial hospitalization, he had two subsequent neck surgeries. He was left permanently restricted from heavy lifting, which was a requirement of his previous employment. Although it is not clear from the record whether the stipulation was for purposes of the motion or only for the trial, the parties stipulated that the "damage[s] potential in the case was substantially in excess of policy limits."
[7] Despite its conclusion that "public policy does not mandate that plaintiff should have the benefit of a windfall from the third party tort feasor in the form of recovery of the full charge billing of the Hospital where discounted access to health care has been provided," during the trial, the court recognized the general rule stated in the text: "I'm not sitting here looking to decide the case on the basis of comparative windfalls or lack thereof." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261225/ | 223 F. Supp. 466 (1963)
James William WEBB, Jr., and Andre Webb, minors, by James R. Webb, their parent and next friend, et al., Plaintiffs,
v.
BOARD OF EDUCATION OF the CITY OF CHICAGO and Benjamin C. Willis, as General Superintendent of Public Schools of the City of Chicago, Defendants.
No. 63 C 1895.
United States District Court N. D. Illinois, E. D.
November 18, 1963.
James D. Montgomery, Paul B. Zuber, Raymond E. Harth, Chicago, Ill., for plaintiffs.
James W. Coffey, Chicago, Ill., Thomas M. Thomas and Reuben L. Hedlund, Chicago, Ill., for defendants.
MAROVITZ, District Judge.
This class action has been brought by the parents of several Negro children presently enrolled in the public schools of Chicago, Illinois. Plaintiffs ask upon their own behalf, and also upon the behalf of others similarly situated, that *467 the Defendants, the Board of Education of the City of Chicago, and Dr. Benjamin C. Willis, Superintendent of Schools, be enjoined pendente lite from maintaining and requiring attendance at racially segregated public schools.
Plaintiffs contend that the Board, and Dr. Willis, have deliberately created and fostered a segregated school system in Chicago, in violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. More specifically, Plaintiffs allege that Defendants have gerrymandered the boundaries of school districts, adopted a permissive transfer plan for white students, and constructed additional schools in Negro areas, while failing to utilize vacant seats in White classrooms. The Plaintiffs have submitted a detailed affidavit from Attorney Paul Zuber of New York City, along with numerous exhibits, in support of their motion. Mr. Zuber has set forth data, attempting to demonstrate the predominance of one race or the other in many Chicago schools. He then presents statistical surveys tending to show that overcrowding, use of branch schools and mobile classrooms, and new building activity, are more prevalent in Negro residential areas than in those inhabited by both races, or White persons alone.
In response, the Defendants have submitted to this Court, the affidavit of Defendant Willis. Dr. Willis defends the School Board's actions with evidence that such procedures have been necessary to efficiently administer the school system. Dr. Willis contends that the large influx of Negroes into areas containing low cost public housing and other factors have dictated the Board's construction and districting policy, as it attempts to eliminate double shifts and overcrowding. In his affidavit Dr. Willis has categorically denied that he or his office has ever been motivated to maintain or perpetuate racially segregated schools. On Page 18 of Dr. Willis' affidavit, he states:
"I categorically deny that I or my office has ever been motivated to maintain or perpetuate racially segregated schools, nor are we maintaining and perpetuating racially segregated schools, nor are we committed to policies which result in racially segregated schools. The unsupported statements made on Page 39 of Plaintiffs' affidavit are totally false."
Plaintiffs have come before the bench today, asking this Court to issue a preliminary injunction. They ask that Defendants be enjoined from requiring Plaintiffs and their class to attend segregated schools, from maintaining a segregated school system, from requiring Plaintiffs and their class to attend overcrowded public schools while seats lie empty in classrooms serving White residential areas, and from any other acts which deny to Plaintiffs the equal protection of the laws.
It is not necessary for the Court to determine at this time the respective merits of these contentions. We need only note that substantial questions of fact are raised as to whether the segregation complained of is the result of an active and intentional design of the Defendants. The United States Court of Appeals for the Seventh Circuit, on October 31, 1963, upheld the constitutionality of the "neighborhood school policy" in Bell v. School City of Gary, Indiana, 324 F.2d 209.
"We agree with the argument of the defendants stated as `there is no affirmative U. S. Constitutional duty to change innocently arrived at school attendance districts by the mere facts that shifts in population either increase or decrease the percentage of either Negro or white pupils.'"
The Court continued, quoting from the District Court opinion of Judge Beamer:
"Nevertheless, I have seen nothing in the many cases dealing with the segregation problem which leads me to believe that the law requires that a school system developed on the neighborhood school plan, honestly *468 and conscientiously constructed with no intention or purpose to segregate the races, must be destroyed or abandoned because the resulting effect is to have a racial imbalance in certain schools where the district is populated almost entirely by Negroes or whites. * * *" D.C., 213 F. Supp. 819.
It would therefore appear that the only basis for equitable relief in this case must be found in the form of an intentional design on Defendants' behalf to maintain segregation in the public schools. De facto segregation resulting from the implementation of a neighborhood school policy, or residential segregation is not enough.
A temporary injunction, especially one altering the status quo, should not be issued unless the Plaintiffs demonstrate that there is a great probability they will prevail. Plaintiffs must also demonstrate that their injuries would be irreparable if the temporary injunction were not issued. The purpose of a temporary injunction is to prevent the destruction of Plaintiffs' rights until such time as a hearing upon the merits may be held. In Corica v. Ragen, 140 F.2d 496 (1944), the United States Court of Appeals for the Seventh Circuit, quoting from Russell v. Farley, 105 U.S. 433, 26 L. Ed. 1060, said,
"A court of chancery should `* * * regard the comparative injury which would be sustained by the defendant, if an injunction were granted, and by the complainant, if it were refused. * * * And if the legal right is doubtful, either in point of law or of fact, the court is always reluctant to take a course which may result in material injury to either party; * * *' * * *
"Taking all the circumstances into consideration, including the fact that the only grounds for granting the injunction were to be found in the unsupported, contradicted and impeached affidavit of plaintiff, we do not think it can be said that plaintiff had established his right to the relief sought so clearly as to be reasonably free from doubt, so as to warrant an injunction prior to trial."
This Court is aware of the irreparable harm which could result from segregation under the sanction of law. Brown v. Board of Education of Topeka, Shawnee County, Kan, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873. However, school segregation resulting from residential segregation, alone, is not a violation of any right over which this Court can take cognizance. In Bell v. School City of Gary, Indiana, supra, the Court held that there is no Constitutional right to be integrated with persons of other Races. The Constitution only forbids States from actively pursuing a course of enforced segregation.
Further, irreparable harm is, by itself, insufficient to warrant the granting of a preliminary injunction. In Vergas v. Shaughnessy, 97 F. Supp. 335 (D.C. N.Y.1951), an application for an injunction which, if granted, would have prevented temporarily Plaintiff's deportation, was denied, notwithstanding the danger of irreparable harm. The Court, in refusing the injunction, said, "It is a cardinal principle of equity jurisprudence that a preliminary injunction shall not issue in a doubtful case."
Branche v. Board of Education, 204 F. Supp. 150 (E.D.N.Y.1962) dealt with a neighborhood school policy in Hempstead, N. Y. Defendant's motion for summary judgment was denied, but the case was subsequently suspended. Branche can be read to say that the mere act of requiring attendance in a segregated school, determined by numbers, constitutes State action under the Fourteenth Amendment. That is, that all schools having a high percentage of one race are presumptively unconstitutional. To take this construction would seem illogical, as residential segregation may very often lead to a predominantly Negro school district, even when that district is drawn *469 with reasonable boundaries. A more intelligent approach to Branche would lead to the conclusion that passive gerrymandering may create an unconstitutionally segregated school. However, there must be some affirmative action of "segregating", to violate the Fourteenth Amendment, even if it is only the passive refusal to redistrict unreasonable boundaries. Mere residential segregation is not enough.
The case of Henry v. Greenville Airport Commission, 4 Cir., 284 F.2d 631, cited by Plaintiffs, is not in point, here. In that case, the existence of separate waiting rooms was established and uncontradicted. Since that was the only question of fact involved, the relief was correctly granted. In the case at bar, however, many facts upon which Plaintiffs' right to relief depends are in doubt. Therefore, the status quo should not be upset until these facts are determined by the Court.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261233/ | 223 F. Supp. 359 (1963)
Petition of Dean A. GURNSEY to perpetuate the testimony of Alfred G. Stellato.
Civ. A. No. 2547-63.
United States District Court District of Columbia.
October 31, 1963.
*360 Pierre E. Dostert, Washington, D. C., for petitioner.
Arnold Aikens, Asst. U. S. Atty., for the District of Columbia, for United States.
HOLTZOFF, District Judge.
This Court granted an ex parte order without a hearing to perpetuate the testimony of a prospective witness pursuant to Rule 27 of the Federal Rules of Civil Procedure. The case is now before the Court on a contested motion to substitute another witness for the witness named in the original order and another contested motion to vacate the original order.
The petitioner is an employee of the Federal Government. He was in a probationary status and, therefore, was not entitled to all of the protection and safeguards extended by the various Civil Service Acts. He was discharged from his employment on the ground that the Government had received information adversely affecting his moral character. He was given the nature of the information but not the names of the informants, and he was accorded an opportunity to deny the charges and presumably to offer testimony to refute them.
He now seeks to invoke Rule 27 for the purpose of taking the deposition of an official of the United States Civil Service Commission and thereby procuring the names of the informants who gave adverse information against him and the written statements of these informants. The Court appointed counsel to represent the unknown informants, and the United States Attorney has asked leave and has been granted leave to appear and move to vacate the order in view of the governmental interest involved.
The Court has considered two aspects of this matter. First is the purpose and the extent of Rule 27. Rule 27 provides a procedure for the perpetuation of testimony of a witness. It is contemplated that it may be used in instances where as a result of time the witness's testimony might become unavailable. It is not a method of discovery to determine whether a cause of action exists; and, if so, against whom action should be instituted. For this reason, the Court reaches the conclusion that a proceeding under Rule 27 may not be used for the purpose intended by the petitioner and in a manner in which he attempts to invoke it.
There is a second aspect to this matter. The purpose of the proceeding is to ascertain names of informants to the Government and the exact nature and details of the information supplied by the informants. The Court is of the opinion that the information sought by the petitioner is absolutely privileged. The Government has the privilege, in fact perhaps even a duty, not to reveal names of informants supplying information to it or the nature of the information relating to violations of the criminal law or other matters that might adversely affect the Government. This is an old time common law privilege which was approved by the Supreme Court in Vogel v. Gruaz, 110 U.S. 311, 4 S. Ct. 12, 28 L. Ed. 158. Counsel for the petitioner would seek to limit this informant's privilege strictly to matters of criminal accusations. The Court is not aware of any binding authority limiting this privilege in such a manner. The purpose of this doctrine is to make it possible for any citizen to come to governmental authorities and furnish confidential information to the Government.
The Court does not have to and will not decide whether an action for libel or slander would lie against the informant if the person concerning whom adverse information had been given became aware of the fact. That is a matter that is not before this Court. What the Court has to determine is whether the Government should be required to divulge this information. To compel the Government to do so would be to discourage citizens from furnishing information to the Government. The governmental interest *361 in matters of this kind is paramount.
In view of these considerations, the Court will vacate its original ex parte order which was made on October 17, 1963. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320658/ | 264 S.C. 303 (1975)
215 S.E.2d 184
John W. CASEY, Individually and in behalf of all others similarly situated, Respondent,
v.
SOUTH CAROLINA STATE HOUSING AUTHORITY et al., Appellants.
20004
Supreme Court of South Carolina.
May 2, 1975.
Daniel R. McLeod, Atty. Gen., and Karen L. Henderson, Asst. Atty. Gen., of Columbia, for Appellant, State Budget *304 and Control Board and Appellant Daniel R. McLeod, as Attorney General.
Messrs. Sinkler, Gibbs, Simons & Guerard, of Charleston, for Appellant, South Carolina State Housing Authority.
*306 Messrs. Frank K. Sloan and Robert C. Elliott, of Columbia, for Respondent.
*307 May 2, 1975.
LITTLEJOHN, Justice:
This action was brought pursuant to the Uniform Declaratory Judgment Act, Section 10-2001 et seq., Code of Laws of South Carolina (1962), to contest the constitutionality of Act No. 1171 of 1974 (the Act).
The Act empowers the South Carolina State Housing Authority (created by Act No. 500 of the Acts of 1971) to issue its notes, or bonds, to promote housing accommodations for persons of moderate to low income.
The respondent, Casey, brings the action as a citizen, resident, and taxpayer of South Carolina, for himself and all others who would be adversely affected by the action which the defendants propose to take pursuant to the Act. Parties defendant (now appellants) are the South Carolina State Housing Authority and members of the State Budget and Control Board, who would implement and coordinate the provisions of the Act. The Attorney General (also an appellant) was joined as a defendant pursuant to § 10-2008, by reason of the fact that this action seeks to declare an Act of the General Assembly unconstitutional.
The complaint alleges that the Act is unconstitutional on several grounds. The lower court held that it was violative of Article 10, § 6 of the Constitution of South Carolina, in that the Act authorized the defendants to pledge and lend the credit of the State of South Carolina for the benefit of private corporations and individuals. The lower court found the other grounds, attacking the constitutionality of the Act, without merit.
The pertinent part of Article 10, § 6 of the Constitution provides, as follows:
"The credit of the State shall not be pledged or loaned for the benefit of any individual, company, association or corporation ..."
*308 The Act is a complex one. After finding that there exists in South Carolina a serious shortage of sanitary and safe residential houses, it proceeds to declare that it is necessary in the public interest that the Authority be authorized to:
"(i) provide construction and mortgage loans; (ii) purchase mortgage loans; (iii) provide for pre development costs, temporary financing and land development expenses; (iv) provide residential housing construction and rehabilitation by private enterprise and housing sponsors for sale or rental to persons and families of moderate to low income; (v) provide mortgage financing; (vi) make loans to mortgage lenders under terms and conditions requiring the proceeds thereof to be used by such mortgage lenders for new residential mortgage loans; (vii) provide technical, consultation and project assistance services to housing sponsors; (viii) assist in coordinating federal, State, regional and local public and private efforts and resources; (ix) promote wise usage of land and other resources; (x) make direct loans to qualified individuals through mortgage lenders; (xi) where necessary acquire title to real property and cause to be constructed by private enterprise or housing sponsors thereon residential housing for persons and families of moderate to low income; and (xii) sell and dispose of real property and residential housing on such terms and conditions as the authority shall determine, in order to preserve the quality of life in South Carolina."
The Act then proceeds to endow the Authority with the power to do those things enumerated, declaring that all of these things are public purposes and in the public interest.
In order to accomplish the purposes of the Act, there are provided three methods of permanent mortgage financing.
LOAN TO LENDER PROGRAM
(Authorized by § 5 (1) (a))
Under this program the Authority may borrow money by issuing bonds, and lend the proceeds thereof to mortgage lending institutions which are actively engaged in the business *309 of making mortgage loans on residential houses. The money borrowed from the Authority by the mortgage lender would be loaned by the mortgage lender to persons of moderate to low income to be chosen by the mortgage lender within specific guidelines to be established by the Authority. Bonds issued by the Authority under this first program would be secured by a pledge of the revenues received by the Authority in repayment of the loans made to the mortgage lenders, and by the collateral pledged by the mortgage lenders. Bonds issued by the Authority under this plan would not be secured by the "Guaranty Fund." established by the Act, to which reference will be made hereafter.
DIRECT MORTGAGE LOAN PROGRAM
(Authorized by § 5 (1) (b))
Under this program the Authority would borrow money by issuing bonds, and use the proceeds to finance the construction of residential housing units by private builders. The Authority would then make such housing available to persons of moderate to low income. The Authority would appoint private mortgage lenders to service the loans made to members of the moderate to low income class. The bonds issued by this program would be secured by a pledge of the revenues received by the Authority on repayment of the mortgage loans made by the Authority. In addition, the bonds would be secured by the pledge of the "Guaranty Fund," to which reference will be made hereafter.
MORTGAGE PURCHASE PROGRAM
(Authorized by § 5 (1) (c))
This program authorizes the Authority to borrow money by issuing notes with a maturity not exceeding two years, the proceeds of which would be used to purchase federally insured mortgages from mortgage lenders upon the agreement of such mortgage lenders to use the proceeds of the purchase price in originating mortgage loans to persons or *310 families of moderate to low income. The notes of the Authority would be secured by a pledge of the federally-insured mortgages so purchased, and would be refunded by the proceeds of bonds directly secured by the "Guaranty Fund," to which reference will be made hereafter.
There is also provided one temporary method of mortgage financing.
DIRECT CONSTRUCTION LOAN PROGRAM
(Authorized by § 5 (1) (a))
This program permits the Authority to made direct, insured loans to housing sponsors from the proceeds of its bonds where there is a commitment for permanent financing through a federal, or federally-insured mortgage. This program does not pledge the "Guaranty Fund," to which reference will be made hereafter.
THE GUARANTY FUND
The Guaranty Fund is created by, and may be utilized by and paid out in accordance with § 6 of the Act, which reads in pertinent part as follows:
"Any unexpended balance in the State General Fund at the end of fiscal year 1973-74 in excess of the amount required to cover appropriations in the State General Appropriations Act for 1974-75, as determined by the State Budget and Control Board in accordance with the provisions of Section 1-782 of the 1962 Code, but not in excess of ten million dollars, shall be set aside in a special account in the State Treasury to constitute a Guaranty Fund for any State bonds that may thereafter be issued by the South Carolina State Housing Authority. All monies in the Guaranty Fund shall be held by the State Treasurer, and shall be used only for the purpose of paying principal (whether at state maturity, or in accordance with any mandatory sinking fund) of and interest on notes and bonds issued pursuant to Section 5 (1) *311 (b) of this act in the event funds otherwise intended therefor shall be insufficient to meet the principal of and interest on such notes and bonds as and when the same become due and payable. ..."
"In the event that funds intended to pay the interest on or principal of any notes or bonds of the authority issued pursuant to Section 5 (1) (b) are not available for that purpose, it shall be the duty of the State Treasurer to forthwith utilize the Guaranty Fund to the extent required to meet any such deficiency. The duty herein imposed upon the State Treasurer is declared to be mandatory and obligatory and enforceable by any holder of any note or bond of the authority issued pursuant to Section 5(1) (b) in any court of competent jurisdiction. ..."
GUARANTY FUND REQUIREMENT
Section 7 of the Act establishes the Guaranty Fund Requirement in language as follows:
"Notes and bonds may be issued by the authority pursuant to Section 5 (1) (a) of this act without regard to the Guaranty Fund limitation of this section. The Guaranty Fund shall not be pledged to secure either the interest on or principal of any notes or bonds issued pursuant to Section 5(1) (a). No notes or bonds may be issued pursuant to Section 5 (1) (b) unless the Guaranty Fund limitation hereinafter set forth in this section shall be complied with. No notes or bonds shall be issued pursuant to Section 5 (1) (b) unless the value of the Guaranty Fund, after taking into account any bond proceeds required to be credited thereto by a resolution authorizing the issuance of additional bonds, shall be not less than the Guaranty Fund Requirement. For purposes of this act, the Guaranty Fund Requirement shall mean the maximum amount of principal, sinking fund installment and interest becoming due in any future year on all bonds issued pursuant to Section 5 (1) (b) and then outstanding including the bonds then proposed to be issued.
*312 "In calculating the principal amount of notes and bonds of the authority then outstanding, no account shall be taken of any outstanding notes or bonds which have been refunded as to both principal and interest or are to be refunded as to both principal and interest out of the proposed series of notes or bonds."
Section 14 of the Act requires the Authority to report annually to the State Budget and Control Board the sum, if any, required to restore the Guaranty Fund to levels necessary to service bonds issued under § 5 (1) (b) and requires the Budget and Control Board to include in its annual report to the General Assembly a statement showing the amount necessary to fund the deficit and restore the Guaranty Fund Requirement. In addition to making this recommendation, the Budget and Control Board must also approve the issuance of any bonds or notes issued pursuant to the Act.
Section 11 of the Act provides as follows:
"The notes, bonds, or other obligations of the authority shall not be a debt or grant or loan of credit of the State of South Carolina or any political subdivision thereof and neither the State of South Carolina nor any political subdivision thereof shall be liable thereon, nor shall they be payable out of any funds other than those of the authority and the Guaranty Fund; and all notes, bonds and other obligations issued pursuant to this act shall contain on the face thereof a statement to such effect."
The basic question which the lower court decided, and which we must now determine is: Does this Act and the plan of promoting housing so involve the credit of the State that it can be said that the credit is "pledged or loaned for the benefit of any individual, company, association or corporation?"
This Court has repeatedly held that all reasonable doubt must be resolved in favor of the constitutionality of an act. If a constitutional construction of a statute *313 is possible, that construction should be followed in lieu of an unconstitutional construction. We approach the question now before us in the light of this rule.
We are of the opinion that the Act commits the State of South Carolina and, by so doing, pledges its credit to make good any deficit arising because of default under both the Direct Mortgage Loan Program and the Mortgage Purchase Program. The fact that such deficit would be paid out of the Guaranty Fund, instead of the General Fund of the State, makes the obligation no less a pledge of the credit of the State. The lower court observed: "The fund. ... is comprised purely and simply of tax revenues." When the State in effect says, "The deficit will be paid out of the Guaranty Fund," the credit of the State, and the obligation to pay, is involved just as though the State should say, "The deficit will be paid out of the General Fund, or some other fund."
Section 11, quoted herein above, fails to devise a method of lessening the impact of the prohibition presented by Article 10, § 6 of the Constitution. It fails to accomplish the desired end without pledging the credit and the financial backing of the State.
There can, of course, be no requirement by the legislature which created this Act that some future legislature appropriate funds to absorb a deficit reported to it by the Budget and Control Board as contemplated by § 14. A future legislature could refuse to replenish the Guaranty Fund. There is, however, on the part of the legislature always a compelling desire, if not a moral obligation, to protect the credit and the good name of the State by appropriating monies to make good deficits created by State agencies.
We have referred to the Mortgage Purchase Program and the Direct Mortgage Loan Program. We now discuss the Loan to Lender Program and the Direct Construction Loan Program, neither of which directly pledges the Guaranty Fund to the payment of any deficit. Although the Act would *314 not appear to pledge the Guaranty Fund, and thus the credit of the State, to programs coming under § 5 (1) (a) (Loan to Lender Program and Direct Construction Loan Program), the Act goes on to say in § 10:
"Provided, however, that if any party of an agreement securing, directly or indirectly, the payment of the principal and interest on notes or bonds issued pursuant to Section 5 (1) (a) shall default in his or its obligations under such agreement, the authority may sell bonds pursuant to Section 5 (1) (b) for purposes of refunding the notes or bonds issued under Section 5 (1) (a) without regard to whether the notes or bonds to be refunded mature or are subject to redemption within ten years from the date of issue of the refunding notes or bonds. ..."
Sections 6 and 7, read independent of the rest of the Act, would appear not to commit the Guaranty Fund, but when these two sections are read in connection with § 10, it is inescapable that the credit of the State is involved and pledged for the purpose of securing the payment of notes and bonds issued pursuant to § 5 (1) (a).
Appellants argue that even if it be held that those provisions relating to the Guaranty Fund are unconstitutional, the remainder of the Act is valid and should be sustained. It is the duty of the Court to sustain an Act insofar as it is valid. We conclude, however, that the three permanent programs and the one temporary program are so interdependent for their funding and repayment and so intertwined by reason of §§ 6, 7 & 10, that all programs are objectionable as violative of Article 10, § 6.
In the lower court the Act was attacked on five basic grounds. The lower court sustained the position of the contestants of the constitutionality of the Act on one ground alone, holding that four other grounds were without merit. In this appeal the respondent has reasserted those four grounds as additional sustaining grounds and has asked this Court, if it should reverse the lower court, to sustain the result *315 reached in the lower court on one or all of the four additional grounds. Inasmuch as we sustain the lower court on the same ground that the judge announced his ruling upon, we do not reach the merits of any other contentions.
Affirmed.
MOSS, C.J., and LEWIS and NESS, JJ., concur.
BUSSEY, J., dissents.
BUSSEY, Justice (dissenting):
The separation of powers clause of the Constitution requires us to uphold the constitutionality of the particular act unless its unconstitutionality clearly appears beyond all reasonable doubt. The majority opinion recognizes, but, I respectfully submit, totally fails to apply this cardinal rule of constitutional construction. With all due respect to my brethren, it seems to me that the Court more and more tends to give only lip service to this rule. In the instant case I am not at all convinced that the act is violative of Article 10, section 6 of the Constitution. At the very worst it is only arguably so, and most certainly it is not unconstitutional beyond a reasonable doubt.
Since I am deeply concerned about what I regard as a tendency to give only lip service to the cardinal rule of constitutional construction and to invade the provinces of the other branches of government. I take the liberty of restating here my views as set forth in the dissenting opinion in Gunter v. Blanton, 259 S.C. 436, 192 S.E. (2d) 473, as follows:
"The power vested in the judiciary to declare an act of the General Assembly unconstitutional and void is, indeed, a most delicate one to be exercised with the greatest of caution by the courts lest the judiciary itself encroach upon the legislative domain in violation of the separation of powers clause of the Constitution, which the General Assembly is here charged with violating. It is well settled that doubt as to the constitutionality of a particular act has to be resolved in favor of validity and it is only where an act is clearly unconstitutional, *316 beyond any reasonable doubt, that the judiciary may invalidate it. McElveen v. Stokes, 240 S.C. 1, 124 S.E. (2d) 592; Thomas v. Macklen, 186 S.C. 290, 195 S.E. 539; State ex rel. Edwards v. Query, 207 S.C. 500, 37 S.E. (2d) 241; State ex rel. Edwards v. Osborne, 195 S.C. 295, 11 S.E. (2d) 260.
"It is timely and appropriate, I think, to quote from the opinion of Chancellor Waties in the leading case of Byrne's Adm'rs v. Stewart's Adm'rs, (1812) (SC) 3 Desaus. 466:
"It is the peculiar and characteristic excellence of the free governments of America, that the legislative power is not supreme; but that it is limited and controlled by written constitutions, to which the Judges, who are sworn to defend them, are authorized to give a transcendent operation over all laws that may be made in derogation of them. This judicial check affords a security here for civil liberty, which belongs to no other governments in the world; and if the Judges will everywhere faithfully exercise it, the liberties of the American nation may be rendered perpetual. But while I assert this power in the Court, and insist on the great value of it to the community, I am not insensible of the high deference which is due to the legislative authority. It is supreme in all cases in which is not restrained by the constitution; and as it is the duty of the legislators as well as of the Judges to consult this and conform their acts to it, so it ought to be presumed that all their acts are conformable to it, unless the contrary is manifest. This confidence in the wisdom and integrity of the legislature, is necessary to ensure a due obedience to its authority; for if this is frequently questioned, it must tend to diminish that reverence for the laws which is essential to the public safety and happiness. I am not, therefore, disposed to examine with scrupulous exactness the validity of a law. It would be unwise to do so on another account. The interference of the judicial power with legislative acts, if frequent or on dubious grounds, might occasion so great a jealousy of this power, and so general *317 a prejudice against it, as to lead to measures which might end in the total overthrow of the independence of the judiciary, and with it this best preservative of the constitution. The validity of a law ought not then, to be questioned, unless it is so obviously repugnant to the constitution, that when pointed out by the Judges, all men of sense and reflection in the community may perceive the repugnancy. By such a cautions exercise of this judicial check, no jealousy of it will be excited, the public confidence in it may be promoted, and its salutary effects be justly and fully appreciated.' (Emphasis added.)
"The Byrne case has been cited numerous times by this Court as well as courts of other jurisdictions, and most of the foregoing quotation was quoted with approval and applied in Massey v. Glenn, 106 S.C. 53, 90 S.E. 321, an en banc decision in 1916.
"The foregoing salutary principles should constantly guard us, the judiciary, against encroaching upon the legislative domain in violation of the separation of powers clause of the Constitution." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320661/ | 134 Ga. App. 734 (1975)
215 S.E.2d 707
JAMES PAIR, INC.
v.
GENTRY.
50282.
Court of Appeals of Georgia.
Argued February 25, 1975.
Decided April 17, 1975.
Rehearing Denied May 9, 1975.
Talley Kirkland, for appellant.
Carl A. Veline, Jr., for appellee.
DEEN, Presiding Judge.
The plaintiff Gentry applied to James Pair, Inc. to procure a fee-paid job as clerk-typist. She was sent for two job interviews which were to be all or partly employer-paid, but was not hired. She was then told by the defendant's employment counselor to go to Pendley Brothers and speak to Mr. or Mrs. Kubatzky, and informed that "applicant pays fee. [Employer] will refund in six months." Mrs. Kubatzky, who interviewed her for Pendley, informed her to the same effect. She accepted the *735 job at $135 per week, signed a monthly instalment note for $500 to the employment agency, worked two months and made two payments on the note totaling $163.80; then after receiving certain information called the home office of Pendley Brothers and was informed that Mrs. Kubatzky had no authority to agree to a refund of the job placement fee and that the employer would not do so. Plaintiff contacted James Pair, Inc., was told that her contract was with them, not the employer, and that she owed the full amount of the note. The plaintiff then quit the job and sued for recovery of the $163.80. The employment agency countersued for the remainder of the face amount of the note plus attorney fees. The court, sitting without a jury, entered judgment for the plaintiff. Held:
1. The employment agency does not have the rights of a holder in due course. In the first place, under Code Ann. § 109A-3-302(1) the holder, whether or not a payee, must take without notice of any defense against the instrument. Under the undisputed evidence here, the agreement between the agency, the employer's (disavowed) agent and the plaintiff was that if the plaintiff worked for six months her job placement fee would be refunded. This was an understanding a breach of which would operate as a defense. Secondly, even a holder in due course does not take the instrument free from defenses except those of "any party to the instrument with whom the holder has not dealt." Code Ann. § 109A-3-305(2). Obviously the parties dealt with each other in the transaction out of which this cause of action arose.
2. It is contended, however, that the plaintiff is in effect pleading failure of consideration, and that this is not available to her because under Code Ann. § 109A-3-408 "no consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind." But the Code section continues: "Nothing in this section shall be taken to displace any statute outside this Act under which a promise is enforceable notwithstanding lack or failure of consideration." As pointed out in Anderson, Uniform Commercial Code, Vol. 2, 2d Ed. § 3-408:7: "Code *736 § 3-408 governs only the liability of a party on commercial paper. It does not purport to regulate agreements which may be entered into collaterally with the execution of commercial paper. Whether consideration is required for such other agreements and whether it exists will be determined by pre-Code principles which continue in force because not displaced." The actual purpose of this sentence is to do away with the necessity for a new consideration, as e.g. where a note signed by one is renewed by a substituted note signed by the original payor and others. Code Ann. § 109A-1-103 provides: "Unless displaced by the particular provisions of this Act, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions." (Emphasis supplied.)
3. Taking the evidence most favorable to the judgment of the trial court, this plaintiff informed the employment agency that she wanted only a job where the placement fee would be paid by the employer. The employer sent her to two such job interviews, where she was unsuccessful. The employer then sent her to the present one, advising her that the fee would have to be paid by her in the first instance subject to refund by the employer after she had worked for six months. The employer discussed the situation and advised her to the same effect. She took the job, and went back and signed the note in question on the understanding between all parties that the money would be refunded. Thereafter, the employer's home office reneged on the repayment provision, and plaintiff, when she found she had been "had" terminated her employment. Notwithstanding this, the agency insists that it is entitled to the entire face value of the fee note because the obligation was incurred at the time plaintiff accepted the job and prior to the time the note was signed. This at most creates a fact issue. The trial judge had ample evidence on which to base her finding that, whether due to mistake, misrepresentation or other cause, she was induced to interview the employer, accept the job, and sign the note on the understanding *737 that the money would be refunded.
Judgment affirmed. Evans and Stolz, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320662/ | 134 Ga. App. 648 (1975)
215 S.E.2d 515
ROSE, SILVERMAN & HUNT
v.
BEN O'CALLAGHAN COMPANY.
50433.
Court of Appeals of Georgia.
Argued March 4, 1975.
Decided April 11, 1975.
Rehearing Denied April 28, 1975.
Rose & Stern, George S. Stern, Benjamin Landey, for appellant.
Lipshutz, Macey, Zusmann & Sikes, Winston H. Morriss, for appellee.
WEBB, Judge.
Ben O'Callaghan Company brought suit on a promissory note in the Civil Court of Fulton County against Security Development & Investment Company.[1] Pursuant to Code Ann. § 46-101, entitling plaintiff to the process of garnishment where suit is pending, O'Callaghan filed in conjunction with its pending suit an affidavit and bond for garnishment which was served upon Rose, Silverman & Hunt, a law partnership. Pursuant to Code Ann. § 46-102, O'Callaghan's affidavit was made before the deputy clerk of the Fulton Civil Court and recited that "Security Development & Investment Company, defendant, is indebted to said plaintiff in the sum of $36,500.00 principal, $1,370.00 interest, $5,680.50 attorney's fees, and $19.50 court cost and that said plaintiff has a suit pending in suit no. 310883 at the_________ Term, 1970 of the Civil Court of Fulton County, and that affiant has reason to apprehend the loss of said sum or some part thereof unless process of garnishment issues."
*649 Rose, Silverman & Hunt, garnishee, answered that it was not indebted to Security Development and had none of its property or effects. O'Callaghan traversed this answer, and subsequently both O'Callaghan and the garnishee moved for summary judgment. O'Callaghan's motion was granted and garnishee's motion was denied, and garnishee appeals from both judgments with a certificate for immediate review. Held:
Some two months after the judgments complained of were entered, the United States Supreme Court, in reversing North Georgia Finishing, Inc. v. Di-Chem, Inc., 231 Ga. 260 (201 SE2d 321), struck down as unconstitutional the pre-judgment garnishment statutes and procedures utilized here. North Georgia Finishing, Inc. v. Di-Chem, Inc., 43 U. S. L. Week 4192 (U. S. Jan. 22, 1975), conformed to North Georgia Finishing, Inc. v. DiChem, Inc., supra. We must therefore hold this garnishment proceeding, which was instituted prior to final judgment in the main action, void and of no effect, and we reverse both judgments with direction that final judgment be entered in favor of the garnishee, Rose, Silverman & Hunt.
Judgments reversed with direction. Bell, C. J., and Marshall, J., concur.
NOTES
[1] This proceeding has been before us twice before. Security Development &c. Co. v. Ben O'Callaghan Co., 125 Ga. App. 526 (188 SE2d 238); Ben O'Callaghan Co. v. Rose, Silverman & Hunt, 131 Ga. App. 29 (205 SE2d 45). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320663/ | 685 S.E.2d 550 (2009)
Jessica HARDY, a minor, by and through her parent, Gail HARDY, and Viktoria King, a minor, by and through her parent, Revondia Harvey-Barrow, Petitioners-Appellants
v.
BEAUFORT COUNTY BOARD OF EDUCATION, Respondent-Appellee.
No. COA09-132.
Court of Appeals of North Carolina.
November 17, 2009.
*552 Advocates for Children's Services, Legal Aid of North Carolina, Inc., by Erwin Byrd and Lewis Pitts; and Children's Law Clinic, Duke University School of Law, by Jane Wettach, Durham, for the petitioners-appellants.
Tharrington Smith, L.L.P., by Curtis H. Allen III and Robert M. Kennedy, Jr., Raleigh, for defendant-appellees.
Roberts & Stevens, P.A., by Christopher Z. Campbell, Asheville, on behalf of North Carolina School Boards Association; and North Carolina School Boards Association, by Allison B. Schafer, Raleigh, amicus curiae.
North Carolina Justice Center, by Jack Holtzman, Raleigh, on behalf of Concerned Citizens for the Betterment of Beaufort County Schools, North Carolina Community Advocates for Revitalizing Education, and the North Carolina Justice Center, amici curiae.
CALABRIA, Judge.
I. Background
Jessica Hardy, a minor, by and through her parent, Gail Hardy, and Viktoria King, a minor, by and through her parent, Revondia Harvey-Barrow (collectively "petitioners"), appeal orders dismissing petitioners' declaratory judgment claims pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure and affirming the decision of the Beaufort County School Board ("the Board"). We affirm the trial court.
Petitioners were tenth grade students at Southside High School in Beaufort County during the 2007-2008 school year. On 18 January 2008, multiple fights involving numerous students occurred at the school. One of these fights was between petitioners. As a result, petitioners were subsequently suspended for ten days, beginning 24 January 2008. Additionally, Dr. Todd Blumenreich, the principal of Southside High School ("the principal") recommended to Beaufort County School Superintendent Jeffrey Moss ("the superintendent"), long-term suspensions for petitioners for the remainder of the school year. The superintendent followed this recommendation and on 1 February 2008 suspended petitioners for the remainder of the 2007-2008 school year. The superintendent provided each petitioner an appeal form, and these forms were completed and returned to the school on 6 February 2008.
Pursuant to procedures enacted by the Board, students may appeal their long-term suspensions first to the superintendent or his designee(s) and then to the Board itself. On 13 February 2008, petitioners each received their first review before a panel of administrators designated by the superintendent ("the panel"). At those hearings ("the panel hearings"), the principal explained to the panel the reasoning behind his recommendations. Petitioners, who were each represented by their mothers at their respective panel hearings, were given the opportunity to offer arguments to the panel as to why the length of the suspensions were inappropriate. Each mother admitted her daughter's involvement in the fight but maintained that overall they were good students and would benefit from another chance.
After the panel hearings, the panel recommended upholding both petitioners' long-term suspensions. The superintendent followed these recommendations. Petitioners then appealed their suspensions to the Board.
On 6 March 2008, petitioners each received a hearing before the Board ("the Board hearings"). Because it appeared the panel who conducted the panel hearings had considered evidence that had not been formally introduced, the Board voted to conduct de novo hearings in order to allow petitioners to respond to any and all of the evidence against them. Each petitioner was represented by an attorney at the Board hearings. After the Board hearings, the Board voted to uphold petitioners' respective long-term suspensions.
Subsequently, each petitioner filed a Petition for Judicial Review and Complaint for Declaratory Judgment against the Board in *553 Beaufort County Superior Court. The Board filed motions to dismiss both of petitioners' actions. The trial court dismissed petitioners' declaratory judgment claims pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) (2007) for failure to state a claim upon which relief could be granted and affirmed the decision of the Board. Petitioners, after joining their individual actions, appeal.
II. Dismissal Pursuant to Rule 12(b)(6)
Petitioners argue that the superior court erred by dismissing their Petitions for Judicial Review pursuant to Rule 12(b)(6). After a careful review of the superior court's order, we disagree.
The actions initiated by petitioners each contained two distinct parts: (1) a "Complaint for Declaratory Judgment" and (2) a "Petition for Judicial Review." The superior court's final disposition of the case also contained two parts. The superior court: (1) dismissed petitioners' declaratory judgment claims pursuant to Rule 12(b)(6) and (2) affirmed the decision of the Board upholding petitioners' suspensions. These separate dispositions indicate that the trial court considered the two parts of petitioners' pleadings separately, and we review the superior court's determinations accordingly.
A. Dismissal of Declaratory Judgment
The test on a motion to dismiss for failure to state a claim upon which relief can be granted is whether the pleading is legally sufficient. A legal insufficiency may be due to an absence of law to support a claim of the sort made, absence of fact sufficient to make a good claim or the disclosure of some fact which will necessarily defeat the claim. When making a ruling under this rule, the complaint must be viewed as admitted and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted.
State of Tennessee v. Envtl. Mgmt. Comm., 78 N.C.App. 763, 765, 338 S.E.2d 781, 782 (1986)(internal citations omitted).
Petitioners' respective Complaints for Declaratory Judgment contained three distinct claims. Petitioners asserted that: (1) N.C. Gen.Stat. § 115C-391(c) violated petitioners' fundamental right to have the opportunity to obtain a sound, basic education and was therefore unconstitutional; (2) the procedures contained in N.C. Gen.Stat. § 115C-391(c) & (e) did not adequately provide petitioners with due process; and (3) N.C. Gen. Stat. § 115C-391(c) & (e) violated petitioners' constitutional right to equal protection of the law. The superior court dismissed each of these claims. On appeal, petitioners assign error only to dismissal of their first declaratory judgment claim, that N.C. Gen. Stat. § 115C-391(c) violates petitioners' fundamental right to have the opportunity to obtain a sound, basic education.
Petitioners argue that the final decision of the Board, approving the long-term suspension imposed by the superintendent, violated their fundamental right to a sound, basic education that was established by our Supreme Court in Leandro v. State of North Carolina, 346 N.C. 336, 488 S.E.2d 249 (1997). Petitioners have previously litigated this claim, which was appealed to and considered by this Court in the companion cases King v. Beaufort Cty. Bd. of Educ., ___ N.C.App. ___, 683 S.E.2d 767 (2009) and Hardy v. Beaufort Cty. Bd. of Educ., ___ N.C.App. ___, 683 S.E.2d 774 (2009), where the claim was found to be without merit. The superior court correctly concluded that under the doctrines of res judicata and collateral estoppel, petitioners were not permitted to pursue their same Leandro claim again in the instant case. This assignment of error is overruled.
B. Review of the Board's Decision
The standard of review on appeal from a decision of a local board of education is set forth in N.C. Gen.Stat. § 150B-51(b), which provides that the reviewing court may:
reverse or modify the agency's decision, or adopt the administrative law judge's decision if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions or decisions are:
(1) In violation of constitutional provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (3) *554 Made upon unlawful procedure; (4) Affected by other error of law; (5) Unsupported by substantial evidence ... in view of the entire record as submitted; or (6) Arbitrary, capricious, or an abuse of discretion.
N.C. Gen.Stat. § 150B-51(b) (2007).
The proper standard for the superior court's judicial review depends upon the particular issues presented on appeal. When the petitioner contends that the decision of the agency, here the local school board, was unsupported by the evidence or was arbitrary or capricious, then the reviewing court must apply the "whole record" test. The "whole record" test requires the reviewing court to examine all competent evidence (the "whole record") in order to determine whether the agency decision is supported by "substantial evidence." Substantial evidence is that which a reasonable mind would regard as adequately supporting a particular conclusion. When the petitioner argues that the decision of the agency violates a constitutional provision, the reviewing court is required to conduct a de novo review.
In re Roberts, 150 N.C.App. 86, 90, 563 S.E.2d 37, 40 (2002) (internal quotations and citations omitted), overruled on other grounds by N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004). This Court "examines the trial court's order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly." Amanini v. N.C. Dep't of Human Resources, 114 N.C.App. 668, 675, 443 S.E.2d 114, 118-19 (1994) (internal citations omitted).
In the instant case, each of the trial court's orders included the following conclusions of law:
3. After reviewing the Board's alleged violations of petitioner's constitutional rights de novo, the Court finds no violation of petitioner's right to due process, equal protection, or to the opportunity for a sound, basic education.
4. Applying the whole record test to petitioner's claims that the Board abused its discretion and acted arbitrarily and capriciously, the Court finds that the decision of the Board upholding petitioner's long term suspension was not arbitrary, capricious, or an abuse of discretion.
These conclusions indicate that even though the literal language of the superior court's order seemingly dismissed petitioners' respective "Petitions for Judicial Review," the superior court in fact exercised the appropriate appellate standard of review in affirming the Board's decision. This assignment of error is overruled.
III. Due Process
Petitioners argue that the superior court erred in determining they were provided due process in the two administrative hearings that upheld their long-term suspensions. Specifically, petitioners argue that their due process rights were violated because (1) due process requires a full evidentiary pre-deprivation hearing before the imposition of a long-term suspension; and (2) the Board failed to follow its own published policies when it reviewed petitioners' suspensions. We disagree.
When petitioners allege that an agency's decision, here the local school board, is based on an error of law, the proper review is de novo review. Carroll, 358 N.C. at 659, 599 S.E.2d at 894. "Under the de novo standard of review, the trial court considers the matter anew and freely substitutes its own judgment for the agency's." Id. at 660, 599 S.E.2d at 895 (internal quotation and citation omitted).
"[A] student facing suspension has a property interest that qualifies for protection under the Due Process Clause of the Fourteenth Amendment." Roberts, 150 N.C.App. at 92, 563 S.E.2d at 41 (citation omitted). "The student's interest is to avoid unfair or mistaken exclusion from the educational process. ..." Id. at 92, 563 S.E.2d at 42 (internal quotation and citation omitted). "In order to establish a denial of due process, a student must show substantial prejudice from the allegedly inadequate procedure." Watson ex rel. Watson v. Beckel, 242 F.3d *555 1237, 1242 (10th Cir.2001). In Roberts, this Court determined that when a student factually disputes the basis for his or her long-term suspension, due process requires that the student "have the opportunity to have counsel present, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident." 150 N.C.App. at 93, 563 S.E.2d at 42.
In the instant case, it is important to note that throughout the appeals process, both petitioners, unlike the student in Roberts, admitted their involvement in the altercation that led to their suspensions. The arguments made by petitioners' parents during the panel hearings and by petitioners' attorney during the Board hearings were attempts to mitigate petitioners' punishments; they did not attempt to challenge petitioners' guilt. Under these circumstances, it is unnecessary to determine whether the Board's procedure violated petitioners' due process rights.
A procedural due process denial cannot be established when the student admits guilt because prejudice cannot be shown. See, e.g., Beckel, 242 F.3d at 1242; Keough v. Tate County Bd. of Educ., 748 F.2d 1077, 1083 (5th Cir.1984). Even assuming, arguendo, that the due process violations alleged by petitioners were substantiated, there is no evidence that correction of these alleged violations would have produced a more favorable outcome for petitioners. After admitting their guilt, petitioners were provided ample opportunities to argue for mitigation of their punishment in the administrative hearings before the panel and the Board. Petitioners have failed to show an "unfair or mistaken exclusion from the educational process...." Roberts, 150 N.C.App. at 92, 563 S.E.2d at 42. While a different result may have been reached under these facts if petitioners had been contesting the factual basis for their suspensions, we hold that in the circumstances of the instant case petitioners failed to prove they were denied procedural due process.
IV. Conclusion
The record on appeal includes an additional assignment of error not addressed by petitioners and cross-assignments of error not addressed by the Board in their respective briefs to this Court. Pursuant to N.C.R. App. P. 28(b)(6) (2008), we deem these assignments of error abandoned and need not address them. The trial court properly dismissed petitioners' declaratory judgment claims and properly affirmed the decision of the Board.
Affirmed.
Judges WYNN and ELMORE concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320668/ | 215 S.E.2d 659 (1975)
Harold W. PARRISH et al., etc. and Lorin R. Carnell et al., etc.
v.
Lucy PANCAKE.
No. 13500.
Supreme Court of Appeals of West Virginia.
June 10, 1975.
*660 James H. Swadley, Jr., Keyser, James, Wise, Robinson & Magnuson, Charles C. Wise, Jr., and Joseph Beeson, Charleston, for appellees.
H. R. Athey and Gary Athey, Keyser, Anthony G. Halkias, Charleston, for appellants.
NEELY, Justice:
This appeal was granted in order to determine whether valid delivery of a deed occurred in a transaction allegedly conveying to the grantee a perpetual right of way across the property of the grantor. The Circuit Court of Mineral County found that, although the delivery of the deed was invalid as a matter of law, there existed an intention on the part of the plaintiff-grantor to convey an easement for life to the defendant-grantee and, therefore, the circuit court reformed the instrument to conform to its findings. As this Court finds that the delivery of the deed was valid and that there were no patent ambiguities in the written instrument which would warrant judicial construction, the judgment of the circuit court is reversed.
On March 12, 1969, one of the appellees, Lorin R. Carnell, conveyed a permanent easement for a right of way to the defendant below and appellant, Lucy Pancake, her heirs and assigns, forever.[1] The easement *661 consisted of a fourteen foot right of way for all types of travel over certain real estate owned by Lorin R. Carnell in fee simple and located on the west side of U.S. Route 50 in Mineral County, West Virginia. The easement was to be a privilege appurtenant to Lucy Pancake's land to provide a means of entrance and exit to and from her land. The deed contained a description of the right of way by metes and bounds which was prepared by a licensed surveyor. Lorin R. Carnell executed the deed; however, it was not executed by his wife, appellee Katherine L. Carnell, who was named as a grantor in the deed but whose sole interest in the real estate was an inchoate dower interest. It is this failure of execution by Mrs. Carnell upon which the circuit court relied in holding that the delivery of the deed was invalid. The deed in question was acknowledged April 7, 1969, and recorded in the Office of the Clerk of the County Court of Mineral County, West Virginia, on May 2, 1969.
Seven months later appellees Lorin R. Carnell and Katherine L. Carnell, conveyed to appellees Harold W. Parrish and Allene R. Parrish for fifty-five thousand dollars ($55,000) all the real estate which they *662 owned lying on the westerly side of U.S. Route 50 in Mineral County. The land conveyed by the Carnells to the Parrishes was subject to the easement; however, the deed from the Carnells to the Parrishes did not mention the easement nor did it except or reserve the easement from the conveyance. Approximately two years after execution of the deed from the Carnells to the Parrishes, the Carnells and Parrishes together instituted this civil action against Lucy Pancake to have the deed conveying the easement from Lorin Carnell to Lucy Pancake declared void.
In a pre-trial order the Circuit Court of Mineral County held that because of the missing signature of Katherine L. Carnell the deed granting the easement was incomplete on delivery and, therefore, parol evidence concerning its effect and intent would be admissible. The case was referred to a commissioner of the circuit court who found that (1) the consideration for the granting of the easement was a forbearance by Pancake to demand payment for timber which had been inadvertently cut from her land by Carnell; (2) Carnell did intend to grant a right of way to Pancake; (3) there was no evidence of fraud, deceit, or mistake in the transaction; and (4) the recordation of the deed by Pancake five months before the purchase by the Parrishes served as constructive notice of the right of way and, therefore, the Parrishes were bound by the instrument.
The circuit court overruled the commissioner's findings and held that the circumstantial evidence showed no intent on the part of Lorin Carnell to convey a permanent right of way, and further held that the deed had not been validly delivered. The circuit court apparently based its conclusion on testimony by Lorin Carnell that he did not intend for the deed to become effective because he knew that his wife would refuse to sign it. Furthermore, the circuit court relied on evidence that the wife's name was in the granting clause, that a line was provided at the end of the deed for her signature, and that the acknowledgment was originally written to include her as a party to the deed, although Donald C. Hott, Pancake's attorney, struck her name from the acknowledgment clause when he finally signed it as a notary.
I
The correct rule for this Court's evaluation of evidence in a case originally heard by a commissioner is set forth in syllabus point 3 of Fanti v. Welsh, 152 W.Va. 233, 161 S.E.2d 501, 502 (1968) which says:
"Where questions of fact are referred to and passed upon by a commissioner, and the findings of the commissioner are overruled and disaffirmed by the circuit court, the appellate court must determine for itself, from the facts and circumstances disclosed by the record, whether it will sustain the conclusion of the commissioner or that of the circuit court."
The findings of the commissioner in chancery, on questions of fact, should generally be sustained, unless plainly not warranted by any reasonable view of the evidence, Snyder v. Lane, 141 W.Va. 195, 89 S.E.2d 607 (1955). In the case at bar this Court finds that the clear weight of the evidence sustains the commissioner's conclusion that there was an intent on the part of Lorin Carnell to convey an easement to Lucy Pancake, and that there was valid consideration in the forbearance by Pancake to collect the fair market value of timber cut by Lorin Carnell from her property. The testimony of Lucy Pancake, Alma Becker, her daughter, Frank Pancake, her brother-in-law, Donald C. Hott, her attorney, and Larry Kitzmiller, a licensed surveyor, sustained the appellant's contention that Lorin Carnell agreed to convey the easement in return for the timber. The weight of the evidence also shows that Lucy Pancake relied upon this agreement and incurred the expense of having the easement surveyed and expended additional monies in purchasing *663 an easement over the property of one Vaughn Amtower in order to connect the easement across the Carnells' land with the public highway, and that Mr. Carnell signed the deed in question knowing that it conveyed the easement to which the parties had agreed. The only evidence supporting the appellees' allegation of non-delivery is Lorin Carnell's testimony that he forgot his glasses the day that he signed the deed and that, consequently, he did not read the instrument and did not intend the deed to become effective because his wife would be unwilling to sign it.
II
The threshold issue concerns the effect of multiple grantors when less than all sign the deed. To resolve that issue requires reckoning with two confusing and at first blush, apparently contradictory holdings of this Court. In Adams v. Medsker, 25 W.Va. 127 (1884) one Philip Lyons, a resident of the State of Pennsylvania, died intestate owning land in Harrison County, West Virginia. All of his heirs took equal shares of the Harrison County property. Only one of the heirs, Medsker, had lived on the property before the death of Lyons. Consequently, the other heirs agreed to convey their interests in the property to Medsker. One deed was prepared in which all of the heirs except Morgan Lyons and his wife were named as grantors in the granting clause. The deed was signed and sealed by all of the heirs, including Morgan, who was not named in the granting clause, but Thomas Campbell, an heir who was named in the granting clause did not sign the deed.
The Court held that the deed was effective only to pass the titles of those heirs who were named in the granting clause and who had signed the deed. That is to say, the deed was ineffective to pass the titles of Morgan Lyons and Thomas Campbell. Each of the heirs intended to convey his share regardless of what the others did. Even though neither Morgan Lyons nor Thomas Campbell had accomplished all of the formalities, the Court held that those parties who did intend to convey their interests, who were properly named, and also who had properly signed the deed effectively passed their titles to the property.
In Bennett v. Neff, 130 W.Va. 121, 42 S.E.2d 793 (1947), the parties attempted to enter into an agreement in which all of the seven children of one Louisa F. Bennett, who mistakenly believed that they all owned equal undivided interests with her in land in Nicholas County, West Virginia, would convey to the mother the undivided interests. She would partition the property into separate and equal parcels and, in return for a small consideration, would convey such parcels by deed to each child respectively. Seven deeds were prepared but two of the children refused to sign their deeds. The Court held in syllabus point 4 in Bennett that:
"No delivery occurs when deeds not signed by some of the grantors are given by a grantor who has signed and acknowledged them to the grantee in one of such deeds, upon the unperformed condition that they shall not become effective until signed and acknowledged by all of the grantors; and such deeds do not pass title to the real estate described therein to any of the designated grantees."
The Court apparently determined from the evidence that when the agreement was suggested, it was the intent of all of the parties that each child's deed would not become effective unless each of the other children signed a deed as grantor, conveying his own undivided share to the mother. That is to say, it was well known by all of the parties that each individual deed would not be effective until performance of the condition that every other child signed a deed. It is on this ground that Bennett is distinguishable from, and not in conflict with Adams.
The case sub judice takes from both of these precedents. Under Adams, supra, in *664 spite of the fact that Katherine Carnell did not sign the deed although named as a grantor, still Lorin Carnell was named as grantor and did sign the deed. Again, under Adams, without a clear demonstration that there was a condition precedent that Mrs. Carnell also would sign before the delivery became effective, as would be required under Bennett, supra, the deed became effective with regard to Mr. Carnell. Secondly, according to Bennett, extrinsic evidence showed that Lorin Carnell did in fact intend to convey an easement and, therefore, the effectiveness and validity of the deed was not hampered by absence of the signature of his wife.
On the facts of the case before us this Court holds that the commissioner was correct in finding a valid delivery and that the circuit court was in error in concluding that Carnell was not fulfilling a prior executory contract to grant the easement by signing the deed.
III
In the case at bar the deed was given to Mrs. Pancake's attorney, Donald C. Hott. The circuit court confused the questions of delivery and construction when it determined that less than lawful delivery did not make the deed a nullity, but rather made it latently ambiguous and susceptible to judicial construction. A deed is either properly delivered or it is not properly delivered. Without proper delivery the deed is incomplete and passes no title, Garrett v. Goff, 61 W.Va. 221, 56 S.E. 351 (1907), but a deed does take effect on valid delivery, Clemens v. Morris, 24 F.Supp. 380 (N.D.W. Va.1938). Accordingly, once it is determined that a deed has been validly delivered the same rules with regard to parol evidence apply to the construction of that deed as apply to any other properly executed and delivered instrument. Previous unsuccessful challenges with regard to delivery do not create a latent ambiguity. In the case sub judice there is no patent or latent ambiguity that would warrant the introduction of parol evidence for the purpose of judicial construction. Lorin Carnell owned the fee simple and he was entitled to convey the easement without his wife's consent, subject only to her inchoate dower interest. There is no question of intent as the instrument is clear; there is only a question of delivery which we resolve adversely to appellees.
Therefore the judgment of the Circuit Court of Mineral County is reversed and the case is remanded with directions to enter judgment for the appellant.
Reversed and remanded.
NOTES
[1] "Lorin R. Carnell and Katherine Carnell
TO RIGHT OF WAY
Lucy Pancake
THIS DEED, Made on this the 12th day of March, 1969, by and between LORIN R. CARNELL and KATHERINE CARNELL, his wife, grantors and parties of the first part, and LUCY PANCAKE, grantee and party of the second part,
WITNESSETH: That, for and in consideration of TEN DOLLARS ($10.00), and other good and valuable considerations, the receipt of all of which is hereby acknowledged, the said parties of the first part do hereby grant, bargain, sell and convey unto the said party of the second part, her heirs and assigns, an Easement of Right of Way fourteen (14) feet wide for all types of travel over certain property owned by the grantors in New Creek District of Mineral County, West Virginia, to be used as a privilege appurtenant to two (2) certain tracts or parcels of land now owned by the grantee, which said tracts or parcels of land are described in a certain deed dated August 5, 1941, from A. J. Pancake and Emma E. Pancake, his wife, to A. J. Pancake, Jr., as recorded in Mineral County Deed Book No. 64, at page 49, the center line of which said Easement of Right of Way is bounded and described as follows:
BEGINNING at a point in the center line of existing road in the property line between Vaughn T. Amtower and Lorin R. Carnell; thence, with the center line survey of a 14.0 foot wide Right of Way over the land of Lorin R. Carnell with metes and bounds as follows: North 70° West 95 Feet; thence, North 86° West 120.0 feet; thence, South 89° West 130.0 feet; thence, North 79° West 200.0 feet; thence, North 75° West 90.0 feet; thence, North 70° West 200.0 feet; thence, North 74° West 200.0 feet; thence, North 77° West 114.0 feet; thence, North 67° West 168.0 feet; thence, North 55° 30' West 753.0 feet; thence, North 49° West 200.0 feet; thence, North 55° West 132.0 feet; thence, North 63° West 158.0 feet; thence, North 49° West 85.0 feet; thence, North 55° 30' West 200.0 feet; thence, North 59° 30' West 102.0 Feet; thence, North 43° West 104.0 feet; thence, North 69° West 126.0 feet; thence, North 53° West 124.0 feet; thence, North 64° West 100.0 feet; thence, North 46° 30' West 125.0 feet; thence, North 60° 30' West 115.0 feet; thence, North 52° West 280.0 feet; thence, North 43° West 73.0 feet; thence, North 59° West 142.0 feet; thence, North 55° West 268.0 feet; thence, North 45° West 247.0 feet; thence, North 56° West 130.0 feet; thence, North 39° West 190.0 feet; thence, North 49° West 352.0 feet; thence, North 38° 30' West 138.0 feet; thence, North 29° West 200.0 feet; thence, North 43° West 96.0 feet; thence, North 60° West 90.0 feet; thence, North 83° 30' West 54.0 feet; thence, South 79° West 82.0 feet; thence, North 63° West 196.0 feet crossing a small hollow to a point in the property line between Lorin R. Carnell and Lucy Pancake.
TO HAVE AND TO HOLD the above described and conveyed Easement of Right of Way unto the said Lucy Pancake, her heirs and assigns, forever, as a privilege appurtenant to the above described real estate.
WITNESS the following signatures and seals:
Lorin Carnell /s/ (SEAL)
Lorin R. Carnell
(SEAL)
Katherine Carnell
STATE OF WEST VIRGINIA, COUNTY OF MINERAL, to-wit:.
I, Donald C. Hott /s/, a Notary Public in and for the County and State aforesaid, do certify that Lorin R. Carnell and Katherine Carnell, his wife, whose name is signed to the foregoing writing bearing date the 12th day of March, 1969, have this day acknowledged the same before me in my said County and State.
Given under my hand this 7th day of April
March, 1969.
Donald C. Hott /s/
Notary Public
My Commission Expires:
7 December 1976.
"DECLARATION OF CONSIDERATION OR VALUE"
The total consideration paid for the property conveyed by the document to which this declaration is appended is $10.00.
Given under my hand this 16th day of April
March, 1969.
Lucy Pancake
Lorin R. Carnell
Lucy Pancake, Grantee
ADDRESS: Keyser, W. Va.
THIS INSTRUMENT WAS PREPARED BY DONALD C. HOTT ROGERS AND HOTT, ATTORNEYS AT LAW KEYSER, WEST VIRGINIA
-3-
STATE OF WEST VIRGINIA, MINERAL COUNTY, TO-WIT:
Be it remembered that on this 2nd day of May, 1969 at 1:15 o'clock p. m., the foregoing Right of Way with the certificate thereto annexed, was presented in the Office of the Clerk of the County Court and admitted to record.
Earl E. Kemp /s/ G.H.
Clerk County Court" | 01-03-2023 | 10-30-2013 |
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300 Ga. App. 608
ADAMS
v.
The STATE.
No. A09A1576.
Court of Appeals of Georgia.
October 8, 2009.
Reconsideration Denied October 27, 2009.
*403 Jon C. Rhoades, for Appellant.
Peter J. Skandalakis, Dist. Atty., and Timothy M. Marlow, Asst. Dist. Atty., for Appellee.
MILLER, Chief Judge.
A jury convicted Marcus Julius Adams of one count of armed robbery (OCGA § 16-8-41) and one count of possession of a firearm during the commission of a crime (OCGA § 16-11-106). Adams appeals, contending that the trial court erred in overruling his Batson challenge to the State's peremptory strikes of two African-American jurors. Discerning no error, we affirm.
Viewed in the light most favorable to the jury's verdict (Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)), the evidence shows that on July 21, 2005, Joseph Reid entered a service station convenience store located in West Point. Reid pointed a handgun at the cashier, demanded the cash in the register, and fled from the scene in a vehicle which the cashier recognized as having been driven by Adams when he purchased gas at the station in the past. In the investigation which followed, a DNA sample voluntarily given by Reid revealed that he had been present at the scene. Other evidence showed that Adams was driving the car after the robbery. Both Adams and Reid were thereafter seen wiping down the areas of the vehicle which they might have touched with their hands. And they then got into the trunk of the vehicle and had Adams' girlfriend drive them to her home in Lanett. Their arrests followed. Reid pled guilty to the offense of armed robbery, and, at trial, gave testimony against Adams.
Adams contends that the trial court erred in overruling his Batson challenge to the State's peremptory strikes of Juror Nos. 23 and 24, two African-Americans, to reach *404 Juror Nos. 25, 26, and 28 who were white.[1] Inasmuch as Adams failed to meet his burden to show that the jurors' excusals were for a racially discriminatory purpose, no Batson error resulted.
The United States Supreme Court in Purkett v. Elem[, 514 U.S. 765, 767-769, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995),] established a three-step test for evaluating challenges to peremptory strikes on Batson grounds. First, the opponent of a peremptory challenge must make a prima facie showing of racial discrimination. Second, the burden of production then shifts to the proponent of the strike to give a race-neutral reason for the strike. Third, after hearing from the opponent of the strike and considering the totality of the circumstances, the trial court then decides whether the opponent of the strike carried his burden of proving discriminatory intent in fact motivated the strike.
(Citation and footnote omitted.) Boone v. State, 293 Ga.App. 654, 659(4), 667 S.E.2d 880 (2008). While striking a particular juror in order to get to other jurors further down the list on its face appears to be a race-neutral explanation, "only in the context of application can we determine whether such an explanation is in fact racially-neutral." Covin v. State, 215 Ga.App. 3, 4, 449 S.E.2d 550 (1994). In this regard, we bear in mind that the trial judge's findings must be accorded great deference, and they cannot be reversed unless clearly erroneous. Lingo v. State, 263 Ga. 664(1)(b), 437 S.E.2d 463 (1993).
Inasmuch as the trial court found that Adams made a prima facie case below, our analysis extends only to the sufficiency of the State's proffered reasons for the exercise of the peremptory strikes in issue. See Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) ("Once a prosecutor has offered a race-neutral explanation for [a] peremptory challenge[] and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot."); see also Lewis v. State, 262 Ga. 679, 680(2), 424 S.E.2d 626 (1993).
Here, there is no dispute that the prosecutor peremptorily struck African-American Juror Nos. 23 and 24 in order to reach Juror Nos. 25 and 26 who were white. The prosecutor explained that she wanted Juror No. 25 because she knew that he had a brother who worked for the sheriff's department and thought he would be a "law-abiding juror." As to Juror No. 26, a retired registered nurse, the prosecutor explained that as an older and more established individual she would make a good State's juror. Finally, the prosecutor explained that she selected Juror No. 28 because, although young, the juror was a graduate student, in business, and married to a man with a responsible job. Other evidence before the trial court showed that three African-Americans were seated as members of the jury. Nine African-Americans had been members of the venire of thirty. No improper discriminatory intent is revealed where, as here, 25 percent of the actual jury seated was African-American as compared to a venire which was 30 percent African-American. Further, the prosecutor made it clear that there had been no purposeful discrimination but "understood if [the trial court had] to make an adjustment" to foreclose any appearance of impropriety.
Given the foregoing, the trial court's denial of the Batson motion at issue was not error. Covin, supra, 215 Ga.App. at 4, 449 S.E.2d 550; Lingo, supra, 263 Ga. at 664(1)(b), 437 S.E.2d 463.
Judgment affirmed.
ANDREWS, P.J., and BARNES, J., concur.
NOTES
[1] By his appellate brief, Adams also appears to argue that the trial court erred in overruling his Batson challenge as to Juror No. 30. The record shows, however, that such challenge was limited to Juror Nos. 25, 26, and 28. Inasmuch as there was no ruling below as to Juror No. 30, such issue is waived on appeal. Carroll v. State, 255 Ga.App. 230, 232(3), 564 S.E.2d 833 (2002). Even were it otherwise, the prosecutor's explanation that she struck Juror No. 30 upon the suggestion of a police officer is not error where, as here, there is no showing that the officer had an interest in the outcome of the trial. Covin v. State, 215 Ga.App. 3, 5, 449 S.E.2d 550 (1994). | 01-03-2023 | 10-30-2013 |
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300 Ga. App. 321
In the Interest of S.N.H., a child.
No. A09A0159.
Court of Appeals of Georgia.
August 18, 2009.
*293 Nathan A. Hayes, for appellant.
Thurbert E. Baker, Atty. Gen., Shalen S. Nelson, Senior Asst. Atty. Gen., Kathryn A. Fox, Asst. Atty. Gen., John P. Cheeley, for appellee.
MIKELL, Judge.
Appellant K.H., the biological mother of S.N.H., appeals from the orders terminating her parental rights to the child and denying her amended motion for new trial. Appellant challenges the sufficiency of the evidence to support the termination. She also contends that her trial counsel rendered ineffective assistance and that the juvenile court erred in taking judicial notice of matters in prior deprivation proceedings. Finding no error, we affirm.
On appeal from an order terminating parental rights, we must determine whether, after reviewing the evidence in a light most favorable to the lower court's judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court's factfinding and affirm unless the appellate standard is not met.[1]
Viewed in the light most favorable to the termination order, the record shows that S.N.H. was born on November 16, 2005, and appellant was evicted from her home in April 2006, when S.N.H. was five months old. Because appellant was homeless and unable to care for the child, she sought assistance from the Gwinnett County Department of Family and Children Services ("DFACS"). DFACS provided temporary shelter for appellant and S.N.H., but when offered additional housing, appellant declined the offer. In July, appellant returned to DFACS to give up the child, stating that she was "tired of dealing" with the situation and "wanted her life back."
DFACS filed a deprivation petition on July 17, 2006, and the juvenile court held an emergency hearing. In an order entered on December 13, nunc pro tunc to August 1, 2006, the juvenile court found that appellant "behaved very belligerently and disrespectfully and displayed physical aggressiveness and posturing as the [c]ourt attempted to inform her of her rights." Appellant resisted arrest for criminal contempt, attempted to bite a female deputy, took off her shirt, wrapped it around her neck, and attempted to hang herself. She informed another deputy that she would shoot him if she had a gun. The court found that the child was deprived because appellant suffered from a deficiency of her physical, mental, emotional, or moral condition of such a nature as to render her unable to provide for the child's needs.[2] The court also found that "[t]he child would be at significant risk if she were in the custody of this suicidal and threatening mother." The court placed the child in the temporary custody of DFACS but stated that the permanency plan was reunification.
The reunification plan required appellant to maintain stable housing and stable income; attend anger management and parenting classes and counseling and drug and alcohol treatment, as recommended by The Road to Recovery, Inc. ("Road to Recovery"); attend budgeting classes; secure a transportation plan; and obtain a GED. Appellant, however, substantially failed to comply with the plan. She was terminated from the Road to Recovery program due to her belligerent behavior, lost her job, smoked marijuana daily, and was evicted from her home. As a result, in an order dated May 31, 2007, the juvenile court found her in contempt of court. DFACS then filed a nonreunification case plan.
On June 12, 2007, appellant filed a motion to modify her case plan, alleging that she had completed parenting classes, was enrolled in alcohol and drug treatment classes, and had *294 enjoyed several successful supervised visits with the child. The court conducted a hearing on that date, denying appellant's petition and noting that although she claimed to be sober, she opted not to take a drug screen that day. The court ruled that the permanency plan was termination of parental rights and adoption. DFACS filed a petition for termination of parental rights and a protective order on October 4, 2007.
The termination hearing was held on February 12, 2008. Dr. Michael J. Runo, a psychologist who performed a parental fitness evaluation on appellant pursuant to the court's order,[3] diagnosed her with a significant mood disorder, cannabis abuse, and a personality disorder with paranoid and histrionic traits. Runo testified that appellant was "very hostile and has a lot of animosity towards anyone who is attempting to deliver. . . treatment." According to Runo, appellant refused to accept responsibility for the removal of her child, stopped taking medication to treat her mental disorders when she was 18,[4] and was "behaviorally . . . out of control" without medication. Runo expressed "concerns about her amenability to treatment" and her "willingness to stay off marijuana." Runo concluded that without treatment, appellant's volatility would adversely impact her child. Runo was "very skeptical based on her track record" that she would be able to accomplish a goal of reunification with the child, and he opined that appellant was unfit to care for the child without treatment.
Dr. Margaret Garvin, a psychotherapist and appellant's expert witness,[5] testified that she treated appellant from February through July 2007. According to Garvin, appellant was "primarily compliant" with therapy and completed treatment for anger management, alcohol and drug therapy, and parenting skills. Garvin observed a visit between appellant and S.N.H. and testified that appellant was "very loving and kind" to the child; that the child was "very open and receptive" to appellant; and that mother and child appeared to have a "strong bond." Although Garvin agreed with Runo that appellant needed medication and psychiatric treatment, Garvin believed that appellant would be able to parent her child if she followed the recommended treatment. Garvin testified, however, that appellant stated that she could not afford such treatment. Upon questioning by the court, Garvin testified that medication and psychiatric treatment were available to appellant on a sliding scale, but she had not availed herself of those services, even though Garvin had recommended them almost a year prior to the termination hearing.
Tara Thomas testified that she was the DFACS case manager assigned to appellant's case during the time that the case plan called for reunification. Thomas testified that the goals of the plan were stable housing, stable income, anger management, parenting classes, budgeting class, and getting a GED; that appellant had not come forward with proof of compliance with any of the goals except for a proposed budget; and that appellant had not paid any child support. However, the visits Thomas observed between appellant and the child appeared to be "meaningful and purposeful." Thomas also testified that appellant had not asked for DFACS's assistance in obtaining medication or treatment and had not inquired about the availability of sliding-scale services. Moreover, Thomas was unable to conduct any home visits because appellant "would not allow it."
Thomas testified that S.N.H. has "a very tight bond" with the foster mother, who plans to adopt the child, and that it would be "devastating" to the child to be removed from that home. Based on appellant's disruptive behavior, inability to maintain housing and employment, and her mental status, Thomas did not believe that appellant was capable of providing structure and a nurturing environment for the child.
*295 Appellant testified that she had taken several steps to provide a suitable home for S.N.H. Her attorney tendered into evidence a copy of two paycheck stubs from Pizza Hut; a copy of her lease, showing that she had rented an apartment on February 4, two weeks before the hearing; evidence that she had secured utility service; and certificates of completion issued by Garvin on July 6, 2007, for an anger management program, an alcohol and drug treatment program, and a parenting skills class. Appellant testified that she earns $1,600 per month, but except for a part-time job for which she was paid "under the table," she had never held a job for more than a couple of months.
Appellant admitted that she smoked marijuana; that she needs help with her drug problem and her anger; that she needs medication to control her anger but that the lack of it would not prevent her from taking care of her child; and that she has not obtained medication because she cannot afford it. Appellant also admitted, however, that she had no idea what the medication costs and that she pays to have her hair and nails done. Appellant testified that she would be willing to "sacrifice" her hair and nails if she had to do so. Appellant also admitted telling Road to Recovery that she felt like killing herself; that they would "regret it" if she did not get her baby back; and that appellant would get the child back "legally or illegally." Road to Recovery had to call the police when appellant refused to leave.
The juvenile court ruled from the bench that it would grant DFACS's petition to terminate appellant's parental rights. The court remarked that although appellant might be able to provide financially for the child's basic needs, appellant still had mental health needs that had not been addressed, and the child had bonded with the only home she had ever really known. The court found that DFACS had sustained its burden of proof by clear and convincing evidence.
The juvenile court entered a termination order in March 2008, nunc pro tunc to February 12, 2008.[6] The court appointed new counsel for appellant, who filed a motion for new trial, alleging, inter alia, ineffective assistance of trial counsel. At the hearing held on the motion, appellant's new attorney exhaustively questioned trial counsel as to her actions and motives. The juvenile court denied the motion for new trial, and appellant appeals.
1. A termination of parental rights case involves a two-step analysis.[7] First, the juvenile court must find parental misconduct or inability, based on clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child.[8] If these four factors are satisfied, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child's physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.[9] Applying the four factors set forth in OCGA § 15-11-94(b)(4)(A), we find sufficient evidence to support the juvenile court's finding of parental misconduct or inability.
(a) The child is deprived. Because appellant did not appeal the juvenile court's order finding S.N.H. deprived, and because the evidence showed that the conditions upon which this finding was based still existed at the time of the termination hearing, appellant was bound by this finding.[10]
(b) Lack of proper parental care or control caused the deprivation. One ground for seeking termination is "[a] medically verifiable *296 deficiency of the parent's physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child."[11] In this case, the juvenile court properly found the existence of this factor. Runo diagnosed appellant with mood and personality disorders and testified that she needs medication to control her anger. Runo testified that appellant's volatility would negatively impact her child and that absent treatment, appellant was unfit to care for the child. In addition, appellant had not obtained medication despite a recommendation from her own therapist, Garvin. Appellant claimed that she could not afford medication, even though she paid to have her hair and nails done. Appellant failed to avail herself of services that were available on a sliding-scale basis. The juvenile court's finding as to this factor is supported by clear and convincing evidence.[12]
When the child is not in the parent's custody, the court also is required to consider whether that parent, without justifiable cause, has failed significantly for a year or more prior to the filing of the termination petition: "(i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child. . .; and (iii) To comply with a court ordered plan designed to reunite the child with the parent."[13] Here, although the evidence showed that appellant had meaningful visits with the child, she did not pay child support. Although she claimed to have given the child gifts, her caseworker testified that she had never witnessed appellant doing so. "Georgia law requires a parent to financially support his or her child while the child is in foster care, even in the absence of a court order and even if unable to earn income."[14] Nor did appellant comply with all of the goals of the court-ordered reunification plan. Specifically, she did not demonstrate the ability to maintain stable housing and stable income. Appellant had only recently leased an apartment, and she denied DFACS access to her home to determine its suitability. Appellant had only recently obtained a job at Pizza Hut and had never held a job for more than a few months, except for a job with a moving company for which she was paid "under the table."
We conclude that DFACS demonstrated by clear and convincing evidence that lack of proper parental care or control caused the child's deprivation.
(c) The cause of the child's deprivation is likely to continue. Appellant's failure to stabilize her volatility, and her continued inability to maintain stable housing and stable employment, authorized the juvenile court to find that the cause of the deprivation is likely to continue.[15] While we commend the mother's efforts to address her problems, "the juvenile court, not this [C]ourt, determines whether a parent's conduct warrants hope of rehabilitation, and it also judges the credibility of the mother's good intentions."[16] Moreover, "recent improvements do not establish that the parent is capable of maintaining *297 the progress."[17] Evidence of appellant's failure to seek medication to address her anger control problem, and the impact that problem would have on her child supports the juvenile court's finding that the cause of the deprivation is likely to continue or will not likely be remedied.
(d) Continued deprivation is likely to cause serious harm to the child. The same circumstances that authorized the juvenile court's determination that the child was deprived due to lack of proper parental control or inability and that such deprivation was likely to continue provided clear and convincing evidentiary support for the conclusion that such "continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child."[18] As set forth above, expert testimony showed that the mother's volatile, unstable behavior presents a danger to the child, and her behavior is likely to continue absent medication, to which she apparently is averse. Appellant has failed to maintain steady employment or stable housing. In addition, "it is well settled that children need permanence of home and emotional stability or they are likely to suffer serious emotional problems."[19] At the time of the termination hearing, S.N.H. had been in DFACS's custody for all but eight of her twenty-seven months of life. DFACS offered evidence that the child was thriving in her current placement and that it would be devastating to the child to be removed from her foster mother. The juvenile court was authorized to consider the adverse effects of prolonged foster care and to conclude that the child's continued deprivation was likely to cause her serious harm.[20]
2. Best interest of the child. After finding clear and convincing evidence of parental misconduct or inability, the juvenile court must then determine whether termination of parental rights is in the child's best interest, "after considering the physical, mental, emotional, and moral condition and needs of the child, . . . including the need for a secure and stable home."[21] Given the mother's mental instability and aversion to medication, as well as the close bond that the child has developed with her foster mother, and the foster mother's desire to adopt the child, the juvenile court did not abuse its discretion in finding that termination of appellant's parental rights was in the child's best interest.[22]
3. Appellant argues that the juvenile court erred by accepting a stipulation from the parties that all previous evidence and not specific facts tendered at prior hearingswould come into evidence, even though those hearings did not involve the termination of parental rights. Appellant mischaracterizes the law as well as what occurred at the hearing, where the juvenile court simply asked the parties' attorneys if they would stipulate to the court taking judicial notice of the evidence, exhibits, testimony, and court orders in the underlying deprivation proceeding. A court may take "judicial cognizance of records on file in its own court."[23] In the case at bar, the judge announced her intention to take judicial notice of the prior proceedings; appellant was given an opportunity to be heard on whether judicial notice should be taken; and her attorney stipulated to the court taking judicial notice. Thus, the juvenile court did not err in taking judicial notice of the evidence, exhibits, testimony, and orders in the underlying *298 deprivation proceeding in the same court.
4. Appellant next argues that the juvenile court abused its discretion and committed reversible error by taking judicial notice of previous unappealed court orders from earlier hearings when the juvenile court knew that appellant's attorney never informed her of her appeal rights. Appellant points out that because a court may take judicial notice of records in the same court, where appeals are not taken from orders in those cases, a party is bound by the determinations in later proceedings.[24] Appellant argues that this is an unfair resultparticularly in deprivation and termination proceedingswhere the parent is not informed of her appeal rights. Appellant contends that failing to inform a parent in a deprivation proceeding of her appeal rights and then taking judicial notice of the proceedings in a subsequent termination hearing violates her due process right to confrontation. Appellant cites In the Interest of C.W.D.,[25] in which we recognized that a parent's right to due process in termination cases includes the right to confront the witnesses who testify against her.[26] But appellant has not identified any witness whom she was unable to confront and therefore has not demonstrated harm. "An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful."[27]
5. Appellant next alleges six instances of ineffective assistance of trial counsel. "While termination of parental rights cases are more civil in nature than criminal, parents facing termination of their rights have been afforded some of the protections to which criminal defendants are entitled," including the right to effective representation.[28] In order to prevail on an ineffective assistance claim, appellant must show that her trial counsel's performance was deficient and that the deficient performance prejudiced her.[29]
To meet the first prong of this test, [appellant] must overcome the strong presumption that counsel's performance fell within a wide range of professional conduct and that counsel's decisions were not made in the exercise of reasonable professional judgment. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the circumstances of the case. The second prong requires [appellant] to show there is a reasonable probability that, absent counsel's unprofessional errors, the result of the trial would have been different.[30]
Failure to satisfy either prong of this test is fatal to an ineffective assistance claim, and we need not address the issue of deficient performance if appellant has not borne her burden of demonstrating prejudice.[31] Finally, a juvenile court's finding that a parent has been afforded effective assistance of counsel will be affirmed on appeal unless that finding is clearly erroneous.[32]
(a) Appellant first argues that trial counsel was ineffective for stipulating to the evidence that had been admitted in the prior deprivation proceedings. At the hearing, newly appointed counsel argued that trial counsel should have objected on the ground that the orders in the file were not the best evidence and should have demanded that DFACS present certified copies of the evidence in the deprivation proceedings.[33] This argument lacks merit. First, the court was permitted *299 to take judicial notice of the orders.[34] Second, even if appellant could show that trial counsel performed deficiently in this regard, she has not demonstrated a reasonable probability that the outcome of the termination proceeding would have been different had DFACS been required to present certified copies of the evidence in question.
(b) Appellant next argues that trial counsel was ineffective in failing to instruct her client of her right to appeal the deprivation orders. Trial counsel testified repeatedly at the new trial hearing that she found no grounds upon which to appeal the orders. Although appellant claims that one of the court's unappealed orders did not comply with OCGA § 15-11-58(h), she does not show a reasonable probability that an appeal would have been successful and, most significantly, would have altered the outcome of her current termination proceeding. As we held in Division 1(a), DFACS presented evidence that the child was deprived at the time of the termination hearing and did not simply rely on the court's prior orders. The juvenile court's finding that counsel was not ineffective in this regard is not clearly erroneous.
(c) Appellant next maintains that trial counsel was ineffective in failing to introduce evidence that during a hearing on September 17, 2007, appellant had taken a drug test, which was negative. This assertion lacks factual support in the record. During the termination hearing, trial counsel specifically directed the court's attention to the fact that the drug screen appellant took in September 2007 was negative. Finally, at the new trial hearing, the court stated that it considered all of the evidence before rendering its ruling. Accordingly, this allegation of ineffectiveness is meritless.
(d) Appellant contends that trial counsel was ineffective in failing to object when the guardian ad litem asked Runo whether, in his medical opinion, appellant was unfit to care for S.N.H. on the day of the hearing. We disagree. That was the last question asked by the guardian ad litem, and appellant's trial counsel quickly asked Runo whether appellant's ability to parent could change if she were to receive therapy. Trial counsel was able to get Dr. Runo to admit that it was "possible" that appellant's outlook could change. "A claim of ineffective assistance of counsel is judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight."[35] Given trial counsel's thorough cross-examination of Runo and the fact that she objected to a similar question asked by the guardian, appellant has not shown that trial counsel was ineffective for failing to object to the question concerning parental fitness.
(e) Citing In the Interest of C.W.D.,[36] appellant argues generally that trial counsel was ineffective in failing to object to Runo's opinions, which violated her due process right to confrontation, since his opinions were based on witness statements and documents that were not introduced into evidence. Runo's testimony reveals, however, that he reached his conclusions regarding appellant primarily based on his own personal observations of her during two interviews. Moreover, he specifically declined to comment as to whether appellant's parental rights should be terminated. Thus, there was no due process violation in this regard, and this claim of ineffectiveness fails.
(f) Appellant contends that trial counsel was ineffective in failing to file a motion for a pretrial Daubert[37] hearing under OCGA § 24-9-67.1(d) to limit Runo's testimony. Again, we disagree.
OCGA § 24-9-67.1(d) permits a civil litigant to file a motion requesting a pretrial hearing to determine whether a witness qualifies as an expert and whether his or her testimony is based on sufficient facts that will be admitted at trial, among other criteria. Pretermitting whether this statute applies in *300 cases concerning termination of parental rights, there was no showing of prejudice in the case at bar from failure to hold a pretrial hearing because DFACS established Runo's qualifications at the termination hearing. Runo testified that he was a licensed psychologist who had been performing court-ordered parental fitness custody evaluations for over 15 years. Runo explained his methodology and testified that it was a generally accepted method for performing such evaluations. Runo's opinions were based on personal interviews with appellant. Appellant has not shown that Runo's testimony would have been excluded under OCGA § 24-9-67.1 and has therefore failed to show that trial counsel was ineffective in this regard.
In sum, appellant has failed to show that, but for trial counsel's alleged errors, there is a reasonable probability that her parental rights would not have been terminated. Furthermore, clear and convincing evidence supports the termination order. It follows that the trial court did not err in denying appellant's motion for new trial.
Judgment affirmed.
JOHNSON, P.J., and ELLINGTON, J., concur.
NOTES
[1] (Citation and punctuation omitted.) In the Interest of J.A., 286 Ga.App. 704, 649 S.E.2d 882 (2007).
[2] See OCGA §§ 15-11-2(8)(A); 15-11-94(b)(4)(A)(i), (B)(i).
[3] Although Runo's report was marked as an exhibit at the hearing, it was not tendered into evidence.
[4] Appellant was 24 years old on the date of the termination hearing.
[5] The court granted appellant's motion for funds to retain this expert witness.
[6] The court order issued an amended order on June 17, 2008, nunc pro tunc to February 12, 2008, to correct the statement in the March order that Runo's report had been entered into evidence.
[7] OCGA § 15-11-94(a).
[8] OCGA§ 15-11-94(b)(4)(A)(i)-(iv).
[9] OCGA§ 15-11-94(a).
[10] See In the Interest of R.C.M., 284 Ga.App. 791, 798(III)(1), n. 6, 645 S.E.2d 363 (2007); In the Interest of A.K., 272 Ga.App. 429, 434(1)(a), 612 S.E.2d 581 (2005).
[11] OCGA§ 15-11-94(b)(4)(B)(i).
[12] See In the Interest of H.E.M.O., 281 Ga.App. 281, 285(1)(b), 636 S.E.2d 47 (2006) (mother suffered from mental illnesses and a psychologist concluded that her prognosis was poor without inpatient treatment, to which she was resistant); In the Interest of B.B., 268 Ga.App. 858, 860(3)(a), 603 S.E.2d 333 (2004) (mother's mental illness coupled with refusal to seek treatment showed parental inability).
[13] OCGA§ 15-11-94(b)(4)(C).
[14] (Citations omitted.) In the Interest of A.R.A.S., 278 Ga.App. 608, 613(2)(c), 629 S.E.2d 822 (2006).
[15] See In the Interest of O.M.J., 297 Ga.App. 20, 27(2)(b), 676 S.E.2d 421 (2009); In the Interest of H.E.M.O., supra at 287(1)(c), 636 S.E.2d 47 (mother's resistance to mental health treatment and failure to maintain stable housing or employment, in addition to other factors, authorized finding that the cause of the deprivation is likely to continue).
[16] (Punctuation and footnote omitted.) In the Interest of K.A.B., 285 Ga.App. 537, 541(1)(b), 646 S.E.2d 736 (2007).
[17] (Punctuation omitted.) In the Interest of M.L., 290 Ga.App. 437, 441(3), 659 S.E.2d 800 (2008), citing In the Interest of D.L.S., 271 Ga.App. 311, 314(1)(c), 609 S.E.2d 666 (2005).
[18] OCGA§ 15-11-94(b)(4)(A)(iv); In the Interest of H.E.M.O., supra at 287(1)(d), 636 S.E.2d 47.
[19] (Citation and punctuation omitted.) In the Interest of A.R.A.S., supra at 615(2)(d), 629 S.E.2d 822.
[20] In the Interest of T.W.O., 283 Ga.App. 771, 777(1)(a)(iv), 643 S.E.2d 255 (2007).
[21] OCGA§ 15-11-94(a).
[22] In the Interest of M.L.P., 236 Ga.App. 504, 510(1)(d), 512 S.E.2d 652 (1999) (juvenile court has broad discretion in determining how the interest of the child is best served).
[23] (Citations and punctuation omitted.) In the Interest of A.A., 293 Ga.App. 471, 475(3), 667 S.E.2d 641 (2008).
[24] See id.
[25] 232 Ga.App. 200, 501 S.E.2d 232 (1998).
[26] Id. at 209(5), 501 S.E.2d 232.
[27] (Punctuation and footnote omitted.) In the Interest of D.W., 294 Ga.App. 89, 94(3)(a), 668 S.E.2d 533 (2008).
[28] (Citations and punctuation omitted.) In the Interest of A.H.P., 232 Ga.App. 330, 334(2), 500 S.E.2d 418 (1998).
[29] Id.
[30] (Citation and punctuation omitted.) Id. at 334-335(2), 500 S.E.2d 418. See also Miller v. State, 285 Ga. 285, 286-287, 676 S.E.2d 173 (2009).
[31] White v. State, 293 Ga.App. 241, 242(1), 666 S.E.2d 618 (2008).
[32] See id.
[33] See In the Interest of C.W.D., supra at 204-205(2), 501 S.E.2d 232.
[34] See In the Interest of S.H.P., 243 Ga.App. 720, 722(1)(a), 534 S.E.2d 161 (2000).
[35] (Citation omitted.) Hooks v. State, 280 Ga. 164, 165(3), 626 S.E.2d 114 (2006).
[36] See supra at 209(5), 501 S.E.2d 232.
[37] Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1320630/ | 685 S.E.2d 11 (2009)
In the Matter of J.L., Juvenile.
No. COA08-1306.
Court of Appeals of North Carolina.
September 1, 2009.
*12 Attorney General Roy Cooper, by Assistant Attorney General Jane L. Oliver, for the State.
Richard E. Jester, Louisburg, for Juvenile-Appellant.
BEASLEY, Judge.
J.L. (Juvenile) appeals the order of Mecklenburg County District Court which adjudicated him delinquent of first-degree burglary and robbery with a dangerous weapon. For the reasons stated below, we reverse and remand.
On 12 December 2007, a petition was filed alleging that Juvenile committed first-degree burglary under N.C. Gen.Stat. § 14-51 on 11 December 2007. On 14 January 2008, additional petitions were filed alleging that Juvenile committed robbery with a dangerous weapon, second-degree kidnapping, failure to stop for an emergency vehicle, speeding to elude arrest, operating a motor vehicle without a license, and reckless driving on the same date of 11 December 2007.
At the adjudicatory hearing on 25 February 2008, Juvenile admitted to the allegations of first-degree burglary and robbery with a dangerous weapon.
The trial court made findings of fact consistent with the State's summary of facts. The trial court adjudicated Juvenile as delinquent on the charges of first-degree burglary and robbery with a dangerous weapon on 25 February 2008.
Following adjudication, Juvenile's counsel made a motion to continue the disposition hearing to allow him to review Juvenile's predisposition report. Juvenile's counsel argued that the Department of Juvenile Justice and Delinquency Prevention had not distributed the predisposition report within the required time period. The trial court denied Juvenile's motion to continue and scheduled the disposition hearing on 3 March 2008.
On 28 February 2008, Juvenile's counsel served subpoenas on the Guardian ad Litem (GAL) for Juvenile, requesting Juvenile's records "including but not limited to court reports and volunteer notes." On 29 February 2008, the GAL filed a motion to quash on the grounds that the subpoena failed "to allow reasonable time for compliance." The GAL also stated that:
[g]iven the short period of time that the GAL had the case, the fact that the case was not assigned to a volunteer, and the fact that any critical information about the case would be included in reports filed with the Court, the subpoena is unreasonable and creates an undue burden.
At the 4 March 2008 disposition hearing, representatives from Area Mental Health and Mecklenburg County Department of Social Services (DSS) produced some of Juvenile's records. The trial court reviewed these documents and ruled that the DSS court summary dated November 2006 was admissible. However, the trial court found that the other documents provided by Area Mental Health, which were from 2000 and 2001, were either cumulative or would "create a potential of disclosure of evidence that is not relevant" to the disposition of Juvenile. When the trial court ordered that the irrelevant documents be sealed for appeal, Juvenile's counsel objected to the trial court's *13 ruling which denied complete access to Juvenile's DSS and Area Mental Health's records.
Also during the 4 March 2008 hearing, the trial court granted the GAL's motion to quash, finding that the GAL was not given sufficient time to gather the requested information. The trial court denied Juvenile's motion to continue stating that it did not:
see or hear anything that would create any better understanding that [sic] what I have now or the facts of the situation or seriousness of the offense made to hold the juvenile accountable and importance of protecting public safety, degree of culpability indicated by the circumstances of the particular case or rehabilitative or treatment needs of the juvenile.
The trial court found that Juvenile was a Level 3 for disposition, sending him to "training school without a recommendation for community release for a period of six months or until his 19th birthday." From this order, Juvenile appeals.
REVIEWING JUVENILE'S RECORD
Juvenile argues that the trial court erred when it did not permit his counsel full access to review DSS files or his mental health records. Juvenile argues that his counsel had an absolute right to review his records in order to search for possible mitigating evidence. We agree.
At the Juvenile's hearing on 3 March 2008, Juvenile's counsel informed the trial court that representatives from DSS and Area Mental Health were present with the Juvenile's records. The following was exchanged:
JUVENILE'S COUNSEL: Your Honor, I would prefer that they be delivered to me as they are my client's records. However, if Your Honor feels that it's necessary to review these records in camera before releasing them to me we would not have an objection to that.
....
THE COURT: Okay, I'll accept the records.... We will recess ... while I review these records to see if they have any pertinent information that is relevant.
....
THE COURT: We had [sic] began our dispositional hearing yesterday when the Court was presented subpoenaed documents from YFS andthat is, DSS and Area Mental Health. The Court has reviewed those in chambers yesterday.... Having reviewed those documents, the Court will note that the Area Mental Health documents are from the years 2000 and 2001. And that the court summary that was handed out yesterday of November 27th, 2006 is an appropriate, relevant history of this child's development with [DSS.] The Court finds that the Area Mental Health documents have no relevance in this disposition and that the other documents... are cumulative or irrelevant or would create a potential of disclosure of evidence that is not relevant to this matter.... The other documents are sealed for appeal.
Under N.C. Gen.Stat. § 7B-2901(b) (2007), The Director of the Department of Social Services shall maintain a record of the cases of juveniles ... which shall include family background information; reports of social, medical, psychiatric, or psychological information concerning a juvenile.... The records maintained pursuant to this subsection may be examined only by order of the court except that the guardian ad litem, or juvenile, shall have the right to examine them.
Therefore, N.C. Gen.Stat. § 7B-2901(b) gives Juvenile the right to examine his DSS files and mental health records.
In the present case, the trial court judge deemed which portions of Juvenile's record were irrelevant or cumulative and ordered those portions sealed. The trial court abused its discretion by denying Juvenile the right to examine his records under N.C. Gen. Stat. § 7B-2901(b). Accordingly, we reverse and remand for a new disposition hearing with instructions to the trial court to permit Juvenile access to his records which are maintained by DSS pursuant to N.C. Gen. Stat. § 7B-2901(b).
MOTION TO CONTINUE
Juvenile contends that the trial court erred in denying his motion to continue the *14 disposition in order to allow additional time for his counsel to prepare for the disposition hearing. We agree.
"When reviewing a denial of a motion to continue, this Court must determine whether the trial court abused its discretion." In re D.A.S., 183 N.C.App. 107, 110, 643 S.E.2d 660, 662 (2007). "An abuse of discretion occurs `where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'" State v. Fuller, 176 N.C.App. 104, 108, 626 S.E.2d 655, 657-58 (2006) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).
In his 25 February 2008 motion to continue the disposition hearing, Juvenile argued that because his counsel had not had the opportunity to review his predisposition report, Juvenile could not "effectively prepare to offer evidence in rebuttal" at the disposition hearing. The dispositional hearing was scheduled for 3 March 2008. After hearing arguments from both the State and Juvenile, the trial court denied the motion to continue for these reasons:
(1) this Court has reviewed the juvenile's Area Mental Health and Department of Social Services records and has provided to all parties the document which the Court believes to be the only relevant, reliable and necessary document from those records to determine the needs of the juvenile and the most appropriate disposition, according to North Carolina General Statute section 7B-2501 (a), (2) a continuance would not promote the purposes of disposition, in North Carolina General Statute section 7B-2500, (3) issues related to mental health can be requested to be incorporated into the dispositional order at the dispositional hearing and (4) juvenile court requires timeliness.
Based on our holding above, we conclude that the trial court abused its discretion by denying Juvenile's motion to continue. Under N.C. Gen.Stat. § 7B-2501(b) (2007) "[t]he juvenile ... shall have an opportunity to present evidence, that they may advise the court concerning the disposition they believe to be in the best interests of the juvenile." Because Juvenile had a right under N.C. Gen.Stat. § 7B-2901(b) to access additional records, the trial court should have granted Juvenile's motion to continue in order to give him an opportunity to gather evidence for his disposition hearing.
We do not reach Juvenile's remaining arguments because a new disposition hearing is required.
For the foregoing reasons, we
Reverse and Remand.
Judge McGEE and HUNTER, ROBERT C., concur. | 01-03-2023 | 10-30-2013 |
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