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https://www.courtlistener.com/api/rest/v3/opinions/1324431/ | 225 Ga. 170 (1969)
167 S.E.2d 135
JACKSON et al.
v.
MARTIN; and vice versa.
25070, 25089.
Supreme Court of Georgia.
Argued February 10, 1969.
Decided March 4, 1969.
Leon Boling, Wilbur A. Orr, for appellants.
Garland B. Cook, Davis & Stringer, Thomas O. Davis, for appellee.
PER CURIAM.
This appeal and cross appeal arise from a habeas corpus proceeding involving custody of a child. The father, Andrew Webster Martin, filed the action in the Superior Court of Forsyth County against the deceased mother's parents, Mr. and Mrs. Carl L. Jackson.
The father alleged in essence that the mother was awarded custody of the child in their divorce action, that since her death he has the prima facie right of custody, but that the grandparents refuse to deliver the child to him.
*171 The grandparents asserted that subsequent to the mother's death they and the father entered into an agreement whereby he surrendered parental control of the child to them.
The trial court, by order of November 15, 1968, found against the grandparents' contention, ordered that the grandparents deliver the child to the father, and granted the grandparents specified weekend and summer visitation privileges. A notice of appeal from this judgment was filed by the grandparents on January 9, 1969, an extension of time having been granted. On January 13, 1969, the trial court issued a supplemental order whereby "the writ of habeas corpus as set forth in the order of November 15, 1968," was stayed until the end of the school term in June 1969, the visitation privileges were broadened, and provisions were specified for picking up and returning the child for such visits. Thereafter, the father filed a cross appeal from the November 15, 1968, order and from the supplemental order of January 13, 1969.
1. The rule is that "... when it is insisted that the father has relinquished [his parental rights] by contract, the terms of the contract, to have this effect, should be definite and certain, and the proof to establish the contract should be clear and satisfactory." Richards v. McHan, 129 Ga. 275 (1) (58 SE 839). See also, Looney v. Martin, 123 Ga. 209 (51 SE 304) (one Justice absent). Here, the evidence was in conflict as to whether there was an agreement for the father to surrender his parental rights to the grandparents, and as to the terms of any such agreement. Therefore, the trial court was authorized to find that the father had not surrendered parental control of his child to the grandparents. For this reason, the main appeal is without merit.
2. Two issues are raised in the cross appeal.
(a) The first is whether the trial court was authorized to award visitation privileges to the grandparents where it found that the father had not surrendered parental control of the child to them and that he is entitled to its custody. This issue must be resolved against the grandparents. "On the death of the parent who holds custody of a child under a divorce decree, the prima facie right to the custody automatically inures to the surviving parent." Brown v. Newsome, 192 Ga. 43 (1) (14 SE2d *172 470). Unless this right has been lost by one of the methods recognized by law, such surviving parent is entitled to the full and complete custody. Here, the only contention as to the loss of such right by the father was based on an alleged agreement and, as held in Division 1, the trial court was authorized under the evidence to find against that contention. Having found that the father was entitled to custody, the trial court had no discretion to qualify this custody by awarding visitation privileges to the grandparents.
(b) The other issue is whether the trial court had jurisdiction to supplement its final order of November 15, 1968, after a notice of appeal from that judgment had been filed. We conclude that it did not. Under Georgia Laws 1965, pages 18, 22 (Code Ann. § 6-1002), the notice of appeal served as a supersedeas, and the trial judge thus had no jurisdiction to modify the prior judgment while it was on appeal. In this connection, see Swindle v. Swindle, 221 Ga. 760 (5) (147 SE2d 307).
Judgment affirmed on the main appeal; reversed on the cross appeal. All the Justices concur, except Mobley and Grice, JJ., who dissent from Division 2 (a) of the opinion.
GRICE, Justice, dissenting. I cannot agree with the majority that the trial court abused its discretion in awarding visitation privileges to the grandparents. It has always been the law in this State that in cases involving the custody of children the chief concern is the best interest and welfare of the child, and that the court has a wide discretion in achieving this. See Code § 50-121; Oetter v. Oetter, 150 Ga. 118 (2) (102 SE 818) (one Justice absent); Scott v. Scott, 154 Ga. 659 (115 SE 2); Evans v. Lane, 8 Ga. App. 826 (70 SE 603). Under the circumstances here, where the child has been with the grandparents since his birth and is undergoing treatment for an eye condition for which he faces possible further surgery, it is my opinion that the judgment providing visitation with the grandparents should not be disturbed.
I am authorized to state that Mr. Justice Mobley joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2444481/ | 134 F. Supp. 2d 1 (2000)
Robert E. HARTLINE et al., Plaintiffs,
v.
SHEET METAL WORKERS' NATIONAL PENSION FUND et al., Defendants.
No. Civ.A.1998-1274 RMU.
United States District Court, District of Columbia.
September 14, 2000.
*2 *3 George Michael Chuzi, Kalijarvi, Chuzi & Newman, P.C., Washington, DC, David S. Preminger, Rosen, Szegda, Preminger & Bloom, New York City, for Plaintiffs.
Steuart Hill Thomsen, Nicholas Theodore Christakos, Anthony J. Costantini, Sutherland, Asbill & Brennan, L.L.P., Washington, DC, David R. Levin, Kilpatrick Stockton, LLP, Washington, DC, Marc Harold Rifkind, I, Slevin & Hart, P.C., Washington, DC, Franklin K. Moss, Spivak, Lipton, Watanabe, Spivak & Moss, New York City, for Defendants.
MEMORANDUM OPINION
URBINA, District Judge.
GRANTING THE TRUSTEE DEFENDANTS' MOTION TO DISMISS; GRANTING THE SMWIA DEFENDANTS' MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART THE PLAINTIFFS' MOTION TO AMEND THE COMPLAINT; DENYING THE PLAINTIFFS' MOTION TO ORDER SETTLEMENT DISCUSSIONS AND STAY THE PENDING MOTIONS
I. INTRODUCTION
This ERISA matter is before the court on a motion to dismiss filed by defendants *4 Sheet Metal Workers' International Association ("SMWIA") and Arthur Moore, in his capacity as President of the SMWIA (collectively, "the SMWIA defendants"), a motion to dismiss filed by defendants Board of Trustees of the Sheet Metal Workers' National Pension Fund ("Board of Trustees"), Arthur Moore, Matthew B. Hernandez, Jr., Clinton O. Gowan, Jr., Bruce Stockwell, Alan J. Chermak, Ronald Palmerick, and the Estate of Gordon Jones (collectively, with the Board of Trustees, "the Trustee defendants"), a motion for leave to file a second amended complaint filed by plaintiffs Robert E. Hartline, Eugene Hintz, Ronald W. McCarthy, Joseph Valdastri, and Eurie Williams (collectively, "the named plaintiffs"), and the named plaintiffs' motion to refer this action to a magistrate judge for settlement discussions and to stay consideration of the pending motions to dismiss during such discussions.
The named plaintiffs bring this consolidated action on behalf of themselves and on behalf of a class of all others similarly situated (collectively, with the named plaintiffs, "the plaintiffs") under sections 502(a)(1)(B), (a)(2), (a)(3) and 510 of the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1132(a)(1)(B), (a)(2), (a)(3) and § 1140, against the Sheet Metal Workers' National Pension Fund (the "Pension Fund"), the Trustee defendants, and the SMWIA defendants. This court has subject matter-jurisdiction pursuant to ERISA section 502(e), 29 U.S.C. § 1132(e). This court has supplemental jurisdiction over any other claims pursuant to 28 U.S.C. § 1367(a). For the reasons stated herein, this court grants the Trustee defendants' motion to dismiss, grants the SMWIA defendants' motion to dismiss, grants in part and denies in part the plaintiffs' motion for leave to file a second amended complaint, and denies the plaintiffs' motion for referral to a magistrate judge for settlement discussions and for a stay of consideration of the pending motions during such discussions.
II. BACKGROUND
A. Facts
The named plaintiffs are retired employees of three different employer-participants in the Pension Fund. (Am. Compl.¶¶ 5-11.) Each named plaintiff also is a member of a local union affiliated with the SMWIA and, at some time prior to their respective retirements, worked under the auspices of his respective local union. (Am.Compl.¶ 10.) Each named plaintiff has been a participant and beneficiary of the Pension Fund within the meaning of ERISA sections 3(7) and 3(8), 29 U.S.C. §§ 1002(7) and 1002(8), and is currently receiving a retirement pension from the Pension Fund. (Am.Compl.¶ 11.)
The Pension Fund is an employee benefit plan within the meaning of ERISA section 3(3), 29 U.S.C. § 1002(3), an employee pension benefit plan within the meaning of ERISA section 3(2), 29 U.S.C. § 1002(2), a defined benefit plan within the meaning of ERISA section 3(35), 29 U.S.C. § 1002(35), and a multiemployer pension fund within the meaning ERISA section 3(37)(A), 29 U.S.C. § 1002(37)(A). (Am.Compl.¶ 12.) The plaintiffs allege no substantive wrongdoing by the Pension Fund and have named the Pension Fund "solely for the purpose of relief." (Am.Compl.¶ 12.)
The Board of Trustees of the Pension Fund is comprised of natural persons, half of whom have been appointed by the SMWIA and half of whom have been appointed by employers who contribute to the Pension Fund. (Am.Compl.¶ 13.) The Board of Trustees as an entity is a fiduciary within the meaning of ERISA section 3(21)(A), 29 U.S.C. § 1002(21)(A). (Am. Compl.¶ 13.) Defendants Arthur Moore, *5 Matthew B. Hernandez, Jr., Clinton O. Gowan, Jr., Bruce Stockwell, Alan J. Chermak, Ronald Palmerick, Robert J. Fanning, Cavet Snyder, Robert Custer, Ronald Simpson, Gordon Jones and Edward J. Carlough allegedly were directly responsible for the administration and operation of the Pension Fund, are or were members of the Board of Trustees and are or were fiduciaries within the meaning of ERISA section 3(21)(A), 29 U.S.C. § 1002(21)(A). (Am.Compl.¶ 14.)
The SMWIA is a labor organization within the meaning of Labor Management Relations Act section 201(5), 29 U.S.C. § 1002(5), and is the current or former employer of certain named plaintiffs and members of the putative class. (Am. Compl.¶ 16.) The SMWIA is affiliated with many local unions throughout the United States (the "locals"), each of which bargains collectively with employers in its jurisdiction on behalf of its members, who also are members of the SMWIA. (Am. Compl.¶ 21.) The collective bargaining agreements entered into by the majority of the locals require the signatory employers to contribute to the Pension Fund on behalf of their employees who are members of the local. (Am.Compl.¶ 21.) The contribution rate varies from one local to another. (Am.Compl.¶ 21.)
The Pension Fund also receives contributions from employers that are not parties to collective bargaining agreements but that are related to SMWIA (the "Related Employers"). (Am.Compl.¶ 23.) The Related Employers include the SMWIA, the National Training Fund for the Sheet Metal & Air Conditioning Industry ("NTF") and the National Energy Management Institute ("NEMI"). (Am. Compl.¶ 23.) The Related Employers have employees who are both members and non-members of the SMWIA. (Am. Compl.¶ 23.) Related Employers contribute to the Pension Fund pursuant to "Participation Agreements" rather than collective bargaining agreements. (Am. Compl.¶ 24.) The Pension Fund's Board of Trustees allegedly unilaterally sets the contribution rates to be paid by the Related Employers. (Am.Compl.¶ 24.) The Trustee defendants set non-uniform contribution rates for the SMWIA, the NTF and the NEMI to pay on behalf of their SMWIA-member employees. (Am. Compl.¶ 24.) The contribution rate paid on behalf of any such employee is the rate established by collective bargaining by that employee's "home local union." (Am. Compl.¶ 25.) The SMWIA makes no Pension Fund contributions on behalf of any SMWIA employee whose local union has not negotiated for employers in its jurisdiction to make Pension Fund contributions and, therefore, such employees are ineligible for Fund benefits. (Am. Compl.¶ 26.) The NTF makes Pension Fund contributions on behalf of any NTF employee whose local union has not negotiated to require employers in its jurisdiction to make Pension Fund contributions. (Am.Compl.¶ 26.) However, the NTF makes such contributions at a rate arbitrarily selected by the Defendants. (Id.) The plaintiffs contend that this system sets contribution rates and, therefore, pension amounts, without any relation to a participant's employer, job, duties, or salary. (Am.Compl.¶ 26.)
The plaintiffs assert eight claims. They assert the first, second, third, fifth, seventh, and eighth claims only against the Trustee defendants, and the fourth and sixth claims only against the SMWIA defendants. The plaintiffs contend that the Trustee defendants breached their fiduciary duty under ERISA section 404(a)(1), 29 U.S.C. § 1104(a)(1), by establishing non-uniform. Pension Fund contribution rates for contributions by the plaintiffs' former employers on behalf of the plaintiffs. (Am. *6 Compl. Claims 1, 2 and 3.) The plaintiffs ask that the pension plan be reformed to provide higher pension benefit levels. (Id.) The plaintiffs further assert that the Trustee defendants acted arbitrarily and capriciously in setting contribution rates that the SMWIA, the NTF and the NEMI would pay on behalf of class members. (Am.Compl. ¶ 29.) The plaintiffs contend that the contribution rate system creates a disparity in pension-benefit computations among the class and that the disparity: (1) is not required by any provision of the Pension Fund or ERISA, (2) bears no rational relation to any legitimate purpose of the Pension Fund and (3) is antithetical to the fiduciary requirements of ERISA section 404(a)(1), 29 U.S.C. § 1104(a)(1). (Am.Compl. ¶ 29.) The plaintiffs allege that employers of certain SMWIA, NTF, and/or NEMI employees contributed at the "Maximum Contribution Rate" the prevailing highest contribution rate paid by any employer contributing to the Pension Fund and, therefore, those employees will receive pension benefits based on that rate. (Am.Compl. ¶¶ 18 and 30.) The plaintiffs seek permanent injunctive relief reforming the Pension Fund to require that the pension-benefit calculation for class members be based on the Maximum Contribution Rate. (Am.Compl.¶ 31.)
The plaintiffs also allege that the SMWIA, at the direction of Arthur Moore, stopped contributing to the Pension Fund on behalf of its participating employees. (Am.Compl. ¶ 34, Claim 4.) The plaintiffs claim this action by the SMWIA violates ERISA section 510, 29 U.S.C. § 1140, because it was in retaliation for the commencement of the instant action. (Am. Compl. ¶¶ 36 and 37.)
The plaintiffs contend that the Trustee defendants' failure and refusal to seek the payment of contributions due from the SMWIA constitutes a breach of their fiduciary duties. (Am.Compl. ¶¶ 38 and 39; Claim 5.) According to the plaintiffs, the SMWIA contributed for 1,400 hours of employment per year rather than the actual 2,080 hours for which all other contributing employers pay; in addition, the plaintiffs allege that the SMWIA paid contributions in a one-time annual payment rather than monthly as did all other contributing employers, and never paid interest on the delinquent contributions. (Am.Compl. ¶¶ 40 and 41; Claim 6.) The plaintiffs assert that the Trustee defendants breached their fiduciary duties by not attempting to collect contributions from the SMWIA based on all hours for which its employees were paid and by not attempting to collect interest from the SMWIA for its delinquent contributions or to enforce a monthly payment schedule. (Am.Compl. ¶ 42, Claim 7.)
The plaintiffs further maintain that Arthur Moore and other Board members are in an incurably conflicted position because they caused SMWIA to stop its Pension Fund contributions and/or acquiesced to SMWIA's stopping of contributions. (Am. Compl. ¶ 43; Claim 8.)
The plaintiffs seek, inter alia, that the court: (1) certify this action as a class action, (2) declare that the Pension Fund's terms violate ERISA, (3) reform the Pension Fund retroactively to the first Participation Agreement between the Pension Fund and the SMWIA, the NTF or the NEMI to require that each class member receive benefits calculated from the Maximum Contribution Rate, (4) order the defendants to pay pension benefits prospectively to all class members pursuant to the reformed Pension Fund and (5) order the defendants to pay retroactive pension benefits to all class members who already have received pension benefits. (Am. Compl., Prayer for Relief.)
*7 B. Procedural History
This case was transferred to this court from the Eastern District of New York on May 21, 1998 pursuant to 28 U.S.C. § 1404(a) upon the defendants' motion. On August 27, 1998, this court denied without prejudice the defendants' pending motions to dismiss ("August 27, 1998 Order"). On May 4, 1999, upon considering the parties' cross-motions, this court ruled that it "will engage in an independent analysis of the plaintiffs' claims using as binding precedent the decisions of the Court of Appeals of the District of Columbia Circuit and the Supreme Court only." ("May 4, 1999 Order.")
On June 29, 1999, the Trustee defendants moved to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("TDs' Mot. to Dismiss"). On August 5, 1999, the plaintiffs opposed the Trustee defendants' motion to dismiss ("Opp'n to TDs' Mot. to Dismiss"). On September 13, 1999, the Trustee defendants replied to the plaintiffs' opposition to the Trustee defendants' motion to dismiss ("TDs' Reply").
On June 29, 1999, the SMWIA defendants also moved to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("SDs' Mot. to Dismiss"). On August 5, 1999, the plaintiffs opposed the SMWIA defendants' motion to dismiss ("Opp'n to SD's Mot. to Dismiss"). On September 13, 1999, the SMWIA defendants replied to the plaintiffs' opposition to the SMWIA defendants' motion to dismiss ("SDs' Reply").
On August 5, 1999, in the plaintiffs' opposition to the Trustee defendants' motion to dismiss, the plaintiffs moved to amend their complaint and to file a second amended complaint with respect to the claims against the Trustee defendants, that is, the first, second, third, fifth, seventh and eighth claims. (Opp'n to TDs' Mot. to Dismiss at 44.) On September 13, 1999, the Trustee defendants opposed the plaintiffs' request to amend the amended complaint. (TDs' Reply at 24.)
On August 5, 1999, in the plaintiffs' opposition to the SMWIA defendants' motion to dismiss, the plaintiffs also moved to amend their complaint and to file a second amended complaint with respect to the claims against the SMWIA defendants, that is, the fourth and sixth claims. (Opp'n to SDs' Mot. to Dismiss at 20-21.) The SMWIA defendants did not oppose the plaintiffs' motion.
On December 22, 1999, the plaintiffs moved to refer this matter to a magistrate judge for settlement discussions and to stay consideration of the pending motions during such discussions ("Mot. for Settlement Discussions"). On January 3, 2000, the SMWIA defendants opposed this motion for settlement discussions ("SDs' Opp'n to Mot. for Settlement Discussions"). Likewise, on January 4, 2000, the Trustee defendants opposed the motion ("TDs' Opp'n to Mot. for Settlement Discussions"). On January 11, 2000, the plaintiffs replied in support of their motion for settlement discussions ("Reply in Supp. of Mot. for Settlement Discussions").
III. LEGAL STANDARD
A motion to dismiss for failure to state a claim upon which relief can be granted tests not whether the plaintiff will prevail on the merits, but instead whether the claimant has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); FED. R.CIV.P. 12(h)(6). The court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73, *8 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). In deciding such a motion, the court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in the plaintiffs' favor. See Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 264, 111 S. Ct. 2298, 115 L. Ed. 2d 236 (1991); Talenti v. Clinton, 102 F.3d 573, 574 (D.C.Cir.1996); accord Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir.1996). While the court must accept all well-pled allegations of fact, allegations that are overbroad and unsupported by specific factual averments are insufficient to state a claim upon which relief may be granted. See DeVoren Stores, Inc. v. Philadelphia, 1990 WL 10003, *1, *3 (E.D.Pa.1990); Crowder v. Jackson, 527 F. Supp. 1004, 1006 (W.D.Pa.1981). In addition, the court need not accept as true the plaintiffs' legal conclusions. See Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986); Taylor v. F.D.I.C., 132 F.3d 753, 762 (D.C.Cir.1997). Nor need the court accept unsupported assertions, unwarranted inferences or sweeping legal conclusions cast in the form of factual allegations. See Miree v. DeKalb County, 433 U.S. 25, 27, 97 S. Ct. 2490, 53 L. Ed. 2d 557 (1977); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). In addition, the court need not assume the existence of facts that would eliminate a defense. See Droppleman v. Horsley, 372 F.2d 249 (10th Cir.1967); Johnson v. MacCoy, 278 F.2d 37 (9th Cir.1960). The court may consider the allegations of the complaint, documents attached to or specifically referred to in the complaint, and matters of public record. See 5A Wright & Miller, Federal Practice & Procedure § 1357 at 299 (2d ed.1990).
IV. ANALYSIS
A. The Trustee Defendants' Motion to Dismiss
The amended complaint alleges that the Trustee defendants breached their fiduciary duty under ERISA section 404(a)(1) by: (1) establishing non-uniform contribution rates (Am.Compl. Claims 1, 2, and 3); (2) failing to seek payment on overdue contributions (Am.Compl. Claim 5); and (3) not attempting to collect contributions from the SMWIA based on the hours for which its employees were paid and for not collecting interest for delinquent contributions or enforcing a monthly payment schedule (Am.Compl. Claim 7.). The plaintiffs also assert that the Trustee defendants should be removed from the Board of Trustees because they are subject to an incurable conflict of interest (Am.Compl. Claim 8). The Trustee defendants contend that the plaintiffs' claims should be dismissed because the court could grant no relief for them under any set of facts that could be proved consistent with the allegations in the amended complaint. The court will address each claim in turn.
1. Claims 1, 2 and 3: ERISA Section 404(a)(1) and the Use of Non-Uniform Contribution Rates
The plaintiffs assert that the Trustee defendants breached their fiduciary duty under ERISA section 404(a)(1) by setting non-uniform contribution rates for Pension Fund contributions by the plaintiffs' former employers. (Am.Compl. Claims 1, 2 and 3.) The Trustee defendants contend that the plaintiffs' ERISA section 404(a)(1) claims fail because: (1) the Trustee defendants are subject to the fiduciary standards of ERISA only, (2) under ERISA, trustees of a multi-employer pension plan do not engage in a fiduciary function in designing or amending a pension plan, and *9 (3) establishing contribution rates is inherently a pension plan design, not fiduciary, function. (TDs' Mot. to Dismiss at 2, 10.) The plaintiffs dispute each of these contentions. (Opp'n to TDs' Mot. to Dismiss at 6.)
(a) ERISA Defines the Trustee Defendants' Fiduciary Responsibility
In determining whether the Trustee defendants breached a fiduciary duty to the plaintiffs, the plaintiffs urge this court to consider not only ERISA, but also the Taft-Hartley Act, 29 U.S.C. § 141 et seq., and the common law of trusts. (See Pls.' Opp'n at 8-9, 20-23, 26, 37-38.) For the reasons that follow, the court concludes that only ERISA, and not the common law of trusts nor the Taft-Hartley Act, defines the Trustee defendants' fiduciary duties in this matter. The plaintiffs claim that the Trustee defendants breached their fiduciary duties to the plaintiffs under ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1). (Pls.' Opp'n at 23-26.) ERISA section 404(a)(1), which sets forth a fiduciary's duties, provides in relevant part:
[A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and
(A) for the exclusive purpose of
(i) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims[.] ****
29 U.S.C. § 1104(a)(1). The plaintiffs argue that the Trustee defendants failed to "discharge [their] duties with respect to the plan solely in the interest of the participants and beneficiaries...." See ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1). However, this section by its terms applies to a person only to the extent that (1) the person is a fiduciary, and (2) the person is discharging his or her duties with respect to a plan. Thus, the court first must determine whether the Trustee defendants are fiduciaries and whether they were discharging "duties with respect to a plan." ERISA section 3(21)(A) states:
[A] person is a fiduciary with respect to a plan to the extent
(i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets,
(ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or
(iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. ****
29 U.S.C. § 1002(21)(A). The Supreme Court has interpreted this provision to mean that a person is a fiduciary with respect to a plan and, therefore, is subject to ERISA fiduciary duties to the extent that the person "exercises any discretionary authority or discretionary control respecting management" of the plan, or "has any discretionary authority or discretionary responsibility in the administration" of the plan. See Varity Corp. v. Howe, 516 U.S. 489, 498, 116 S. Ct. 1065, 134 L. Ed. 2d 130 (1996) (emphasis added) (citing 29 U.S.C. § 1002(21)(A)(i) and (iii)). *10 The Court thus indicated that plan management and administration are the hallmarks of fiduciary status. See id. The D.C. Circuit has further held that a party "is subject to ERISA's fiduciary standards only when it acts in a fiduciary capacity." See Systems Council EM-3 v. AT & T Corp., 159 F.3d 1376, 1379 (D.C.Cir.1998), aff'g 972 F. Supp. 21 (D.D.C.1997). Thus, the Trustee defendants contend that they were not acting in a fiduciary capacity and thus were not discharging their duties as fiduciaries when they established the contribution rate and benefit structure. (TDs' Mot. to Dismiss at 12.)
The plaintiffs respond that the Trustee defendants' fiduciary responsibilities are defined not solely by ERISA section 404(a), but also by the duties found under the common law of trusts. (Opp'n to TDs' Mot. to Dismiss at 8, 24-25) (citing Central States, S.E. and S.W. Areas Pension Fund v. Central Transport, Inc., 472 U.S. 559, 570 & n. 10, 105 S. Ct. 2833, 86 L. Ed. 2d 447 (1985)). The plaintiffs contend that adopting contribution rates is a fiduciary act under the common law of trusts. Moreover, the plaintiffs argue that ERISA should not be read to provide pension plan participants with less protection than they enjoyed before ERISA's enactment. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 114, 109 S. Ct. 948, 103 L. Ed. 2d 80 (1989). Thus, according to the plaintiffs, the Trustee defendants' adoption of contribution rates should be reviewable as a fiduciary act and, under the common law of trusts, a fiduciary must treat similarly situated beneficiaries similarly. (Opp'n to TDs' Mot. to Dismiss at 25.) Accordingly, the plaintiffs contend, the Trustee defendants should be held liable because they established a contribution system whereby "similarly situated employees of Related Employers have been treated differently for no reason other than an arbitrary one that they started their careers in different geographic areas." (Opp'n to TDs' Mot. to Dismiss at 25-26.)
The court disagrees that either the common law of trusts or the Taft-Hartley Act determines the Trustee defendants' fiduciary duties in this action. As a preliminary matter, the court notes that the plaintiffs did not allege any violations of or seek relief under the Taft-Hartley Act. More importantly, however, the court concludes that prior case law applying the common law of trusts and the Taft-Hartley Act no longer controls in ERISA fiduciary duty cases such as the instant matter. See Local 144 Nursing Home Pension Fund v. Demisay, 508 U.S. 581, 595, 113 S. Ct. 2252, 124 L. Ed. 2d 522 (1993) (Stevens, J., concurring) (noting that Local 144 "overrule[s] decades of case law"). The Court in Local 144 cited ERISA section 404(a)(1), 29 U.S.C. § 1104(a)(1), as setting forth the duties of a fiduciary under ERISA, and indicated that the remedies for breach of such duties were to be found under ERISA. See id. at 592 & n. 6, 113 S. Ct. 2252.
Moreover, the Supreme Court has held that ERISA constitutes a comprehensive statutory scheme that preempts the common law of trusts where the two bodies of law conflict. See, e.g., Mertens v. Hewitt Associates, 508 U.S. 248, 262, 113 S. Ct. 2063, 124 L. Ed. 2d 161 (1993) (ERISA is "enormously complex and detailed"); Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 361, 100 S. Ct. 1723, 64 L. Ed. 2d 354 (1980) (ERISA is a "comprehensive and reticulated statute"). Although trust law may offer a "starting point" for analysis in some situations, it must give way if it is inconsistent with "the language of the statute, its structure, or its purposes." See Varity Corp. v. Howe, 516 U.S. 489, 497, 116 S. Ct. 1065, 134 L. Ed. 2d 130 (1996); see also Hughes Aircraft Co. v. *11 Jacobson, 525 U.S. 432, 447, 119 S. Ct. 755, 142 L. Ed. 2d 881 (1999).
The D.C. Circuit has addressed the precise question of whether the common law of trusts or ERISA governs in determining whether a party acts as a fiduciary. See Systems Council EM-3 v. AT & T Corp., 159 F.3d 1376, 1379 (D.C.Cir.1998). In Systems Council, the D.C. Circuit stated that "although appellants urge us to consider the extensive common law of trusts in determining whether AT & T acted as a settlor or as a fiduciary when it amended its pension plans, the [Supreme] Court's interpretation of [ERISA] § 3(21)(A) is dispositive." Id.
Thus, this court declines to reach into the common law of trusts or the Taft-Hartley Act, but rather will look only to ERISA sections 3(21)(A) and 401-404 to determine whether the Trustee defendants acted as fiduciaries so as to subject their actions to review under the fiduciary standards of ERISA section 404(a)(1). As stated earlier, the Trustee defendants will be subject to the fiduciary standards only if they acted in a fiduciary capacity when they established the pension contribution rates and benefit system.
(b) Designing or Amending a Plan Is Not a Fiduciary Function
The Trustee defendants contend that the trustees of a multi-employer pension plan do not engage in a fiduciary function when they design or amend a pension plan. (TDs' Mot. to Dismiss at 13.) The Supreme Court in Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 115 S. Ct. 1223, 131 L. Ed. 2d 94 (1995) held that under ERISA a welfare plan sponsor is free, "for any reason at any time, to adopt, modify, or terminate welfare plans" and does not act in a fiduciary capacity when it does so. Id. at 77-79, 115 S. Ct. 1223; see also Systems Council EM-3 v. AT & T, 972 F. Supp. 21, 30-31 (D.D.C.1997), aff'd 159 F.3d 1376 (D.C.Cir.1998).
The Supreme Court, in Lockheed Corp. v. Spink, 517 U.S. 882, 116 S. Ct. 1783, 135 L. Ed. 2d 153 (1996), subsequently expanded the rule of Curtiss-Wright from welfare plans to pension plans. In Lockheed, the Supreme Court dismissed a group of employees' breach-of-fiduciary-duty claims, holding that "the act of amending a pension plan does not trigger ERISA's fiduciary provisions." See id. at 891, 116 S. Ct. 1783. Next, in Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 119 S. Ct. 755, 142 L. Ed. 2d 881 (1999), the Court clarified that its holding in Lockheed does not turn on "the type of plan being amended for the simple reason that the plain language of the statute defining fiduciary makes no distinction." Id. at 443, 119 S. Ct. 755. Thus, under this line of cases, a plan sponsor does not act in a fiduciary capacity when it adopts, modifies, or terminates a pension plan.
The plaintiffs, however, contend that the design or amendment of multi-employer pension plans are fiduciary acts. (Opp'n to TDs' Mot. to Dismiss at 26.) The plaintiffs argue that Curtiss-Wright, Lockheed, and Hughes are inapplicable because the Supreme Court never intended those cases to refer to multi-employer pension plans. (Id.) As a preliminary matter, the plaintiffs cite several pre-Lockheed Second Circuit authorities applying ERISA's fiduciary duty standards to plan amendments. (Opp'n to TDs' Mot. to Dismiss at 28, 31.) See Siskind v. Sperry Retirement Program, 47 F.3d 498, 505-506 (2d Cir.1995) ("courts have treated [multi-employer] plan amendments as fiduciary functions, invalidating amendments not made in furtherance of the participants' and beneficiaries' interest."); Chambless v. Masters, Mates & Pilots Pension Plan, 772 F.2d 1032, 1040 (2d Cir.), cert. den., 475 U.S. *12 1012, 106 S. Ct. 1189, 89 L. Ed. 2d 304 (1985) (plan amendment nullified because it was not "solely in the interests of the participants and the beneficiaries" under ERISA § 404(a)(1)). This court, however, declines to follow those authorities precisely because they pre-date the Supreme Court's more recent decisions in Lockheed and Hughes. See Lockheed, 517 U.S. at 890-91, 116 S. Ct. 1783; Hughes Aircraft, 525 U.S. at 443, 119 S. Ct. 755.
Next, the plaintiffs argue that Lockheed does not apply to multi-employer pension plans. The plaintiffs contend that the Lockheed Court meant to refer only to employers, not to a board of trustees. They point out that the Court's exact words were that "when employers undertake [to adopt, modify, or terminate pension plans,] they do not act as fiduciaries." Lockheed, 517 U.S. at 891, 116 S. Ct. 1783 (emphasis added); (Opp'n to TDs' Mot. to Dismiss at 29.) The plaintiffs argue that despite the Supreme Court's use of the term of "plan sponsor" in other parts of the opinion, the Court actually focused on employers throughout its analysis. (Opp'n to TDs' Mot. to Dismiss at 29.) Moreover, the plaintiffs contend that the Court used the term "plan sponsors" in its generic sense rather than its technical sense under ERISA. (Opp'n to TDs' Mot. to Dismiss at 30.)
This court disagrees with the plaintiffs and concludes that the term "plan sponsor," as used in Curtiss-Wright, Lockheed and Hughes, applies to the trustees of a multi-employer pension plan, such as the Trustee defendants here. ERISA section 3(16)(B), 29 U.S.C. § 1002(16)(B), defines "plan sponsor" as follows:
The term "plan sponsor" means (i) the employer in the case of an employee benefit plan established or maintained by a single employer, (ii) the employee organization in the case of a plan established or maintained by an employee organization, or (iii) in the case of a plan established or maintained by two or more employers or jointly by one or more employers and one or more employee organizations, the association, committee, joint board of trustees, or other similar group of representatives of the parties who establish or maintain the plan.
29 U.S.C. § 1002(16)(B) (emphasis added). The express language of ERISA section 3(16)(B)(iii), thus, would include trustees of multi-employer pension plans within the definition of "plan sponsor." Moreover, the definition in ERISA section 3(16)(B)(iii) is the statute's sole definition of the term "plan sponsor," appearing in ERISA's definitional section and indicating that the definition governs throughout the statute and for all types of plans, including multi-employer pension plans such as the plan at issue here. See 29 U.S.C. § 1002 (stating that definitions are "for purposes of this subchapter," i.e., ERISA). Despite the plaintiffs' contention that the Court used the term "plan sponsor" in a generic sense in Lockheed and Hughes, this court notes that Congress has given that term a specified and technical meaning in the context of ERISA plans. Moreover, this court must assume the Supreme Court was familiar with that meaning. See, e.g., Will v. Michigan Dep't of State Police, 491 U.S. 58, 64, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989) (Court follows ordinary usage of terms, unless Congress gives them a specified or technical meaning); see also William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court 1993 Term: Foreword, 108 Harv.L.Rev. 26, 97 (1994). Accordingly, this court concludes that the holdings in Curtiss-Wright, Lockheed, and Hughes are best read to support the proposition that trustees, such as the Trustee defendants here, do not engage in a fiduciary *13 function when they design or amend a pension plan, whether or not it is a multi-employer plan.
In the wake of Curtiss-Wright, Lockheed and Hughes, subsequent appellate decisions have followed the view that modifying or amending (as opposed to administering) an ERISA plan are not fiduciary acts. See, e.g., Voyk v. Brotherhood of Locomotive Engineers, 198 F.3d 599, 605 (6th Cir.1999) (amendments to multi-employer health and welfare plan are not fiduciary acts); Walling v. Brady, 125 F.3d 114, 117-18 (3d Cir.1997) (amendment to multi-employer pension plan authorizing payment of additional $100 per month to 85% of fund participants, rather than all participants, was not a fiduciary act); Pope v. Central States S.E. and S.W. Health and Welfare Fund, 27 F.3d 211, 212-13 (6th Cir.1994) (amendment to multi-employer welfare plan is not subject to ERISA's fiduciary-duty provision).
In further support for the proposition that establishing the contribution rate system did not constitute managing or administering the investment or use of trust assets, this court finds instructive the distinction between "settlor functions" and "fiduciary functions." See Lockheed, 517 U.S. at 890-91, 116 S. Ct. 1783. In Lockheed, the Court explained that creating, altering or terminating a trust are deemed "settlor functions," while managing or administering the investment and use of the trust assets are deemed "fiduciary functions." See id. While the settlor-fiduciary distinction already had been applied in the context of welfare plans, see Curtiss-Wright, 514 U.S. at 77-79, 115 S. Ct. 1223, Lockheed expressly extended the principle to pension plans. See Lockheed, 517 U.S. at 891, 116 S. Ct. 1783 ("[W]e think that the rules regarding fiduciary capacity including the settlor-fiduciary distinction should apply to pension and welfare plans alike"); see also Systems Council EM-3 v. AT & T, 972 F. Supp. 21 (D.D.C.1997).
The D.C. Circuit has stated that changing the design of a trust does not involve the kind of discretionary administration that typically triggers fiduciary responsibilities. See Systems Council EM-3 v. AT & T Corp., 159 F.3d 1376, 1379 (D.C.Cir. 1998). This rule, according to the Court, "is rooted in the text of [ERISA section 3(21)(A)]." See Systems Council, 159 F.3d at 1379 (quoting Lockheed, 517 U.S. at 890, 116 S. Ct. 1783).
Thus, this court agrees with the Trustee defendants that the reference to plan sponsors in Curtiss-Wright, Lockheed, and Hughes should be read as applying those holdings to boards of trustees of multiemployer plans. In addition, this court holds that the board of trustees of a multiemployer plan, such as the Trustee defendants here, do not act in a fiduciary capacity when they amend or modify a pension plan.
(c) Setting Contribution Rate and Benefit Structure is Plan Design Function Exempt from ERISA Fiduciary Duty Provisions
The Trustee defendants contend that setting a contribution rate structure is necessarily a plan design function because it directly determines pension benefit levels. (TDs' Mot. to Dismiss at 21.) The Trustee defendants argue that establishing the contribution rate constitutes a plan amendment or design, amounting to a settlor function not subject to ERISA's fiduciary standards. (Id.) The Trustee defendants argue that the plaintiffs' principal dispute concerns the level of benefits generated by the contribution rates, not the contribution rates as such. (Reply to TDs' Mot. to Dismiss at 17.)
As discussed above, the definition of a fiduciary may hinge on the distinction between *14 settlor and fiduciary functions. The Trustee defendants argue that the power to name beneficiaries and define benefits and liabilities of a trust is a settlor, not a fiduciary, power. The Trustee defendants cite Alessi v. Raybestos-Manhattan Inc., 451 U.S. 504, 511, 101 S. Ct. 1895, 68 L. Ed. 2d 402 (1981), where the Court commented that it "is clear from the statutory language" of ERISA that "private parties, not the Government, control the level of benefits." (TDs' Mot. to Dismiss at 21-2.) The court notes that numerous other authorities stand for the principle that ERISA does not confer substantive rights on employees, but rather ensures that they will receive those benefits that the employers have guaranteed to them. See, e.g., Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 720, 104 S. Ct. 2709, 81 L. Ed. 2d 601 (1984) (citing Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 375, 100 S. Ct. 1723, 64 L. Ed. 2d 354 (1980)); Connors v. Incoal Inc., 995 F.2d 245, 248 (D.C.Cir.1993); accord Bennett v. Conrail Matched Savings Plan Administrative Committee, 168 F.3d 671, 677 (3d Cir.1999). Accordingly, plan amendments affecting benefit levels have been held not to be fiduciary functions that run afoul of ERISA's restrictions and guarantees. See Jos. Schlitz Brewing Co. v. Milwaukee Brewery Workers' Pension Plan, 3 F.3d 994, 1001-1002 (7th Cir.1993).
The D.C. Circuit in Systems Council explained that, under ERISA, AT & T, an employer and plan administrator, was subject to ERISA's fiduciary standards only when it acts in a fiduciary capacity. See Systems Council, 159 F.3d at 1379. Specifically, the court held that a group of current and retired employees and their union failed to state a claim under ERISA's fiduciary provisions, because they failed to show that AT & T acted in a fiduciary capacity when it amended its pension and welfare plans and allocated the assets and liabilities of those plans between AT & T and a new company created by AT & T. See id. Those actions failed to constitute fiduciary functions because, as the D.C. Circuit explained, amending or modifying any type of employee benefit plan, including pension plans, are settlor and not fiduciary functions. Id. In other words, changing the design of a plan does not involve the kind of discretionary administration that typically triggers fiduciary responsibilities. Id.
The D.C. Circuit in Systems Council thus relied in part on the settlor-fiduciary distinction discussed in Lockheed. See Systems Council, 159 F.3d at 1379-80. In particular, the D.C. Circuit noted that actions "creating, altering or terminating a trust" are deemed settlor functions, and actions "managing and administering the investment and use of the trust assets" are deemed fiduciary functions. Id. This court in Fitts v. Federal Nat. Mortg. Ass'n, 44 F. Supp. 2d 317, 325 (D.D.C.1999) (Urbina, J.), echoed the settlor-fiduciary distinction, citing the language of ERISA's fiduciary duty provisions, which state that:
[A] person is a fiduciary with respect to a plan to the extent (i) he exercises ... any authority or control respecting management or disposition of its assets, ... or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.
See 29 U.S.C. § 1002(21)(A) (emphasis added).
The plaintiffs dispute that setting contribution rates is a plan design function. (Opp'n to TDs' Mot. to Dismiss at 9-10.) The plaintiffs argue that because the plan document "never contained, nor was required to contain, a provision requiring employers to pay contributions at a specific rate," the adoption of the contribution *15 rates was not a plan design, but rather a matter of plan administration within the discretion of the Trustee defendants. (Id. at 13.) The plaintiffs note that the pension plan document contains a benefit formula, not a contribution formula, and that the 1993 Participation Agreement provides that "the Employer shall make contributions at such rates as are established by the Trustees of the Funds." (Id. at 10-11.) The minutes of a Board of Trustees meeting reflect that the Board adopted the "home local rate." (Id. at 12.) The plaintiffs argue that neither the minutes of the Board of Trustees meeting, nor a resolution by the Trustee defendants, constitutes a plan amendment. (Id. at 13-14.) Thus, according to the plaintiffs, because the Trustee defendants had the power to amend the Plan but did not use that power, adopting the contribution rates cannot be considered a Plan amendment. (Id. at 14.)
Whether a party acts as a fiduciary under ERISA is determined by reference to the nature of the particular activity at issue. See Systems Council, 972 F.Supp. at 30, aff'd, 159 F.3d 1376 (D.C.Cir.1998); Arakelian v. National W. Life Ins. Co., 748 F. Supp. 17, 22 (D.D.C.1990); accord Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 61 (4th Cir.1992), cert. den., 506 U.S. 1081, 113 S. Ct. 1051, 122 L. Ed. 2d 359 (1993); Maniace v. Commerce Bank, 40 F.3d 264, 267 (8th Cir.1994), cert. den., 514 U.S. 1111, 115 S. Ct. 1964, 131 L. Ed. 2d 854 (1995). Moreover, plan design may be accomplished through a variety of means besides the formal adoption of a plan or an amendment to an existing plan. See Horn v. Berdon, Inc. Defined Benefit Pension Plan, 938 F.2d 125, 127 (9th Cir.1991). Thus, the court may treat the Trustee defendants' adoption or modification of plan contribution rates as plan design functions even though the Trustee defendants did not formally amend the plan. For example, in Horn, an employer was permitted to terminate a plan through a board of directors resolution and did not need to call or treat the document as an amendment to the plan. See id. at 127. Thus, the plan amendments or modifications here need not have been implemented by formal amendment. Accordingly, this court holds that the nature of the Trustee defendants' action rather than its form will control whether the action is deemed a fiduciary function.
In further support of the plaintiffs' view that the Trustee defendants' actions were not plan design changes, the plaintiffs contend that the Trustee defendants set the contribution rates unilaterally. (Pls.' Opp'n at 12-13.) The Trustee defendants dispute the plaintiffs' contention. (TDs' Reply at 18.) However, for purposes of this motion to dismiss, the court will take the plaintiffs' allegations as true. See, e.g., Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 264, 111 S. Ct. 2298, 115 L. Ed. 2d 236 (1991); Talenti v. Clinton, 102 F.3d 573, 574 (D.C.Cir.1996). Nevertheless, the court concludes that this issue does not bear on whether the Trustee defendants acted in a fiduciary capacity. As noted above, the question of whether a party acts as a fiduciary is to be determined with respect to the nature of each particular activity at issue. See Systems Council, 972 F.Supp. at 30. Here, the particular activity in question is the Trustee defendants' setting of contribution rates.
The court now turns to the question of whether the Trustee defendants' setting of contribution rates is a fiduciary function. The plaintiffs cite Abbott v. Pipefitters, Local Union No. 522 Hospital, Medical, and Life Benefit Plan, 94 F.3d 236 (6th Cir. 1996), for the proposition that a decision to *16 change contribution rates is an administrative decision, rather than a plan modification or amendment. (Opp'n to TDs' Mot. to Dismiss at 15.) The Abbott court stated that "the Trustees, in making this decision, did not act in a manner analogous to settlors of a trust, but rather as administrators exercising the discretionary authority granted to them under the plan." (Opp'n to TDs' Mot. to Dismiss at 16.)
This court finds the plaintiffs' citations to Abbott unavailing. First, this court notes that Abbott held that the contribution rate change was subject to review under ERISA's fiduciary duty provisions because the court found the decision to be administrative, rather than one that "modified" or "amended" the plan. In other words, the trustees, in making this decision, did not act in a manner analogous to settlors of a trust, but rather as administrators exercising the discretionary authority granted to them under the plan. See Abbott, 94 F.3d at 240.
The court concludes Abbott is distinguishable from the instant case because Abbott involved changes to contribution rates in accordance with specified actuarial tables to correct a benefits disparity discovered during a plan investigation. Id. at 237. Thus, the changes in Abbott indeed were administrative tasks that involved the application of plan documents and the exercise of powers by plan administrators. Id. Moreover, the changes to the plan in Abbott did not amount to changes in the design or structure of the plan.
Under the instant plan, employees receive benefits in direct proportion to the contribution amount. Thus, the trustees would not have to change the contribution rate for administrative reasons. Rather the types of changes adopted by the trustees here reflected a change in the design of the plan. Importantly, the court notes that the plaintiffs seek, inter alia, the reformation of the Plan. (Opp'n to TDs' Mot. to Dismiss at 38.) By seeking reformation as a remedy, the plaintiffs in effect acknowledge that the contribution rates are a plan design function. If the only acceptable relief is a reformation of the plan's design, then logic suggests that the alleged fault must have been with the underlying plan design. Accordingly, the court concludes that the establishment of the contribution rates was a part of plan design.
This court holds that setting the contribution rate was a settlor, not fiduciary, function because it was a matter of plan design. The court also concludes that the Trustee defendants were not fiduciaries under ERISA section 3(21)(A) and thus they were not subject to review under the fiduciary standards of ERISA section 404(a)(1). Accordingly, no relief can be granted on plaintiffs' first, second, and third claims under any set of facts that could be proved consistent with the allegations. Accordingly, this court will dismiss the plaintiffs' first, second, and third claims pursuant to Rule 12(b)(6).
2. Claims 5, 7 and 8: ERISA Section 404(a)(1) Breach of Fiduciary Duty Claims for Failing To Collect Distributions from SMWIA and Conflict of Interest
The plaintiffs assert that the Trustee defendants breached their fiduciary duty under ERISA section 404(a)(1) by failing to collect distributions from the SMWIA. (Am.Compl. Claims 5, 7.) The plaintiffs also assert that Arthur Moore as well as other members of the Board are in an incurably conflicted position because of their actions in causing the cessation of contributions to the pension fund by the SMWIA or in acquiescing to the cessation of contributions. (Am.Compl. Claim 8.) The Trustee defendants contend that these *17 claims must fail because they are insufficiently pled and are based on conclusory assertions that lack factual support. (TDs' Mot. to Dismiss at 2-3.)
Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). The purpose of the minimum pleading standard of Rule 8 is to give the defendants fair notice of the claim being asserted sufficient to prepare a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata applies. See Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C.1977).
The plaintiffs contend that their fifth, seventh, and eighth claims have fairly put the Trustee defendants on notice of the claims asserted by the plaintiffs and the relief they seek. (Opp'n to TDs' Mot. to Dismiss at 44.) The plaintiffs argue that, with respect to the fifth claim, they have alleged the cessation of contributions by the SMWIA in violation of ERISA and the failure of the Trustee defendants to "pursue these contributions because Defendant Moore, at that time, was both President of the Union and Chairman of the [Pension] Fund." (Id. at 42.)
Similarly, with respect to the seventh claim, the plaintiffs have alleged that the SMWIA paid contributions for 1,400 hours of employment per year per employee rather than the actual 2,080 hours for which all other contributing employers pay and that the SMWIA paid contributions in a one-time annual payment rather than monthly as did all other contributing employers mid never paid interest on the delinquent contributions. (Am. Compl.¶¶ 40-41.) The plaintiffs asserted that the Trustee defendants breached their fiduciary duties by not attempting to collect contributions from the SMWIA based on all hours for which its employees were paid and by not attempting to collect interest from the SMWIA for its delinquent contributions or to enforce a monthly payment schedule. (Am.Compl. ¶ 42, Claim 7.)
Under ERISA, trustees have a fiduciary duty to "act to ensure that a plan receives all funds to which it is entitled, so that those funds can be used on behalf of participants and beneficiaries." See Central States S.E. & S.W. Areas Pension Fund v. Central Transp., Inc., 472 U.S. 559, 571-72, 105 S. Ct. 2833, 86 L. Ed. 2d 447, reh'g den., 473 U.S. 926, 106 S. Ct. 17, 87 L. Ed. 2d 696 (1985); Diduck v. Kaszycki & Sons Contractors, Inc., 874 F.2d 912, 916 (2d Cir.1989). In performing this duty, trustees have a range of options including suing the delinquent employer, randomly auditing the employer's records, threatening work stoppages, picketing the employer, or similar actions depending upon the circumstances. There is no duty to take any particular course of action if another approach seems preferable. See Alfarone v. Bernie Wolff Constr. Corp., 788 F.2d 76, 79-80 (2d Cir.1986) (employee benefit fund trustees' refusal to file suit to recover contributions allegedly due from employers was not breach of fiduciary duty). Rather, the trustees' duty is to act with "care, skill, prudence, and diligence" in attempting to recover delinquent contributions or in declining to take a particular course of action to recover those contributions. See 29 U.S.C. § 1104(a)(1)(B); Diduck, 874 F.2d at 916.
Moreover, plan administrators have been held to have substantial discretion in determining an appropriate course of action against a plan sponsor. See Herman v. Mercantile Bank, N.A., 137 F.3d 584 (8th Cir.1998). In Mercantile Bank, the court held that to establish a breach of duty by a health plan's fiduciary for failing *18 to pursue a lawsuit against the plan sponsor, the plaintiff must show that the suit would be successful and that the health plan and its beneficiaries would benefit. See id. at 586. The court pointed out that even if the fiduciary won judgment in a lawsuit against the employer but remained unable to collect on that judgment, the lawsuit would waste the resources of both the plan and the employer. See id. at 587. Similarly, allegations that an employer-appointed plan trustee refused to file suit to recover contributions allegedly due fails to make out a breach of fiduciary duty by the trustees under ERISA. See Alfarone, 788 F.2d at 80.
Accordingly, the plaintiffs must do more than allege that pension contributions were due and owing, and that the Trustee defendants failed to file suit against the delinquent contributors. Rather the plaintiffs must allege that the Trustee defendants failed to act with the requisite care, skill, prudence, or diligence. The plaintiffs contend that they are not in the position to audit the fund or participate in meetings of the trustees and, thus, cannot know without discovery the trustees' motives in not attempting to collect contributions. (Opp'n to TDs' Mot. to Dismiss at 41.) The court, however, concludes that the plaintiffs simply need to allege facts indicating that the Trustee defendants failed to act with the required care, skill, prudence or diligence.
With respect to their eighth claim, the plaintiffs similarly argue that they have alleged the necessary facts to put the Trustee defendants on notice. The plaintiffs alleged that "Arthur Moore as well as the other current members of the Board are in an incurably conflicted position because of their actions in causing the cessation of contributions to the Pension Fund by the SMWIA and/or in acquiescing to that cessation of contributions." (Am. Compl. ¶ 43; Claim 8.) The plaintiffs seek to remove the Trustees because of their conflicts. (Am.Compl., Prayer for Relief ¶ 13.) This court concludes, however, that the plaintiffs have failed to state a claim upon which relief may be granted. ERISA places a number of detailed duties and responsibilities on fiduciaries, including the avoidance of conflicts of interest. See Mertens v. Hewitt Assoc., 508 U.S. 248, 252-253, 113 S. Ct. 2063, 124 L. Ed. 2d 161 (1993); Fitts v. Federal Nat. Mortg. Assn., 44 F. Supp. 2d 317, 326 (D.D.C.1999). However, the court finds here that the plaintiffs have failed to allege specifically how the Trustees are in an incurably conflicted position. In fact, this court notes that no union trustee could avoid the conflict over setting contribution rates because, as union employees, union trustees will receive benefits from the Pension Fund. Thus, the plaintiffs would be unable to identify any union employee who would not be in a similarly conflicted position.
Because this court finds that the fifth, seventh, and eighth claims are insufficiently pled, this court will grant the Trustee defendants' motion to dismiss those claims without prejudice. The court will grant the plaintiff leave to amend their fifth, seventh, and eighth claims. The plaintiffs will have 30 days from the issuance of this Memorandum Opinion to file an amended complaint with respect to those claims.
B. The SMWIA defendants' Motion to Dismiss
As discussed above, the plaintiffs assert the following claims against the SMWIA defendants: (1) a claim of discrimination in violation of ERISA section 510 and (2) a claim for unpaid contributions under ERISA section 502(a)(3). (Am.Compl. Claims 4 and 6, respectively.) The SMWIA defendants contend that the plaintiffs' claims should be dismissed because *19 the court could grant no relief under any set of facts that could be proved consistent with the allegations in the amended complaint. (SDs' Mot. to Dismiss at 1.) This court will address each claim in turn.
1. Claim 4: Discrimination in Violation of ERISA Section 510
The plaintiffs assert that the SMWIA defendants discriminated against them in violation of ERISA section 510 when they decided to have the SMWIA cease contributing to the Pension Fund for its employees. (Am.Compl. Claim 4.) The SMWIA defendants respond that the plaintiffs' section 510 claim must fail because the plaintiffs fail to allege any facts showing that: (1) the SMWIA defendants took any adverse employment action against them, (2) the SMWIA defendants targeted particular individuals for discrimination, and (3) the SMWIA defendants acted with the requisite intent to retaliate. (SDs' Mot. to Dismiss at 2.) As discussed below, the court concludes that the plaintiffs have failed to allege that the SMWIA defendants acted in a discriminatory manner in violation of ERISA section 510. Consequently, the court will dismiss the plaintiffs' fourth claim and will not address the SMWIA defendants' other arguments.
ERISA section 510 states in relevant part:
It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter, ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, [or] this subchapter[.]
29 U.S.C. § 1140 (emphasis added).
The SMWIA defendants contend that the plaintiffs fail to allege any discriminatory actions by the SMWIA defendants sufficient to support a section 510 claim. (SDs' Mot. to Dismiss at 8.) ERISA section 510 does not restrict an employer's right to amend a plan as to all participants, even to eliminate future benefits. Instead, it restricts an employer's ability to curtail the rights of some employees vis-a-vis other employees for a discriminatory purpose. See Inter-Modal Rail Employees Ass'n v. Atchison, Topeka & Santa Fe Railway Co., 520 U.S. 510, 117 S. Ct. 1513, 137 L. Ed. 2d 763 (1997) (absent an employer's contractual ceding of its rights, the employer remains free under ERISA, for any reason at any time, to adopt, modify, or terminate its welfare plan) (internal quotations and citations omitted). Here the SMWIA's decision to withdraw from the Pension fund affected all current SMWIA employees equally. The SMWIA defendants thus contend that the withdrawal did not discriminate against any particular group. (SDs' Mot. to Dismiss at 8; SDs' Reply at 4.) Moreover, the SMWIA defendants point out that the plaintiffs fail to identify a particular group against whom the SMWIA defendants discriminated. (SDs' Reply at 4.)
This court agrees that the plaintiffs fail to show discriminatory action. In Andes v. Ford Motor Co., 70 F.3d 1332 (D.C.Cir. 1995), the D.C. Circuit analyzed ERISA section 510 to interpret certain of the prohibited actions specified in the statute. The court concluded that the prohibited actions in ERISA section 510 all typically refer to actions targeted against an individual employee or actions which treat certain individual employees discriminatorily vis-a-vis other employees. See Andes, 70 F.3d at 1337-38, 1339. Applying the familiar canon of construction noscitur a sociis, the D.C. Circuit construed the term "discharge" in ERISA section 510 not to apply *20 to "layoffs" or "terminations." See id. at 1337-38. The court held that layoffs and terminations were not covered by the statute because those terms lacked the personalized targeting associated with each of the prohibited actions listed in ERISA section 510.
Following the D.C. Circuit's holding in Andes, this court similarly concludes that the plaintiffs here have failed to allege that the SMWIA defendants' actions involved the singling out or targeting of a particular person or group. The SMWIA defendants' actions thus resemble the across-the-board actions to which the D.C. Circuit concluded that section 510 does not apply. See Andes, 70 F.3d at 1337-38. Because this court concludes that the plaintiffs have failed to allege the requisite discriminatory action, the court holds that no relief can be granted on the plaintiffs' fourth claim under any set of facts that could be proved consistent with the allegations. Accordingly, this court will dismiss the plaintiffs' fourth claim pursuant to Rule 12(b)(6).
2. Claim 6: Derivative Claim for Contributions
The plaintiffs assert a claim for contributions owed to the Pension Fund because the SMWIA defendants allegedly: (1) paid contributions for its employees for only 1,400 hours of employment per year per employee rather than the actual 2,080 hours for which all other contributing employers paid, (2) paid contributions only as one-time annual payments rather than monthly as did all other contributing employers and (3) never paid interest on the delinquent contributions. (Am.Compl. Claim 6.) The SMWIA defendants contend that the plaintiffs' claim must be dismissed because ERISA does not give the plaintiffs standing to raise a contribution claim as individuals and because the plaintiffs have not fulfilled the requirements to bring their contribution claim as a derivative suit on behalf of the Pension Fund. (SDs' Mot. to Dismiss at 2.) The court agrees and grants the SMWIA defendants' motion to dismiss this claim without prejudice.
(a) Standing
Here the plaintiffs assert a claim on behalf of the pension fund for contributions to the fund. The SMWIA defendants contend that, except in a derivative action on behalf of a fund, plan participants generally lack standing to sue an employer to require the employer to make contributions to a pension plan. See Kenney v. Roland Parson Contracting Corp., 790 F. Supp. 12, 16 (D.D.C.), rev'd o.g., 28 F.3d 1254 (D.C.Cir.1994); (SDs' Mot to Dismiss at 10; SDs' Reply at 5.) Thus, the SMWIA defendants argue that the plaintiffs would have standing only if this action is brought as, a derivative action, subject to the demand requirement and other procedures set forth in Federal Rule of Civil Procedure 23.1. (SDs' Mot. to Dismiss at 10; SDs' Reply at 5.) The plaintiffs state that their claim is not derivative and, in any event, is not subject to the demand requirements of Rule 23.1. (Pls.' Opp'n at 13.)
While the plaintiffs state that their claim is not derivative, they cite authority only for the proposition that they are not subject to the demand requirement of Rule 23-1. (Pls.' Opp'n at 13) (citing Kamen v. Kemper Financial Servs., Inc., 500 U.S. 90, 97, 111 S. Ct. 1711, 114 L. Ed. 2d 152 (1991)). The plaintiffs cite Kamen in support of their arguments that Rule 23.1 does not create a demand requirement and that, in derivative suits based on federal law, any demand requirement is governed by the substantive federal statute itself, in this case ERISA. See Kamen, 500 U.S. at 95-98, 111 S. Ct. 1711. However, none of these arguments directly addresses whether *21 the plaintiffs have standing as individuals or rather must bring this claim as a derivative action.
This court concludes that the plaintiffs must bring the instant claim as a derivative action. The plaintiffs' claim here is for unpaid contributions, including for the timely payment of monthly contributions and interest upon late contributions. (Am. Compl. ¶¶ 40-41, Claim 6.) Thus, the instant claim for unpaid contributions is brought for or on behalf of the plan because such employer contributions would inure to the benefit of the trust generally rather than an individual beneficiary. See Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270, 287 (2d Cir.1992) (citing Alfarone v. Wolff Constr. Corp., 788 F.2d 76, 80 (2d Cir.), cert. den., 479 U.S. 915, 107 S. Ct. 316, 93 L. Ed. 2d 289 (1986)). As such, the enforcement of the obligation to make contributions is the function, at least in the first instance, of the Trustees. Id. Accordingly, this court agrees with the defendants that the plaintiffs have standing to bring this claim, if at all, only as a derivative suit. See id.; Thornton v. Evans, 692 F.2d 1064, 1079-80 (7th Cir.1982); Kenney, 790 F.Supp. at 16; Crawford v. Magee, 1993 WL 438463, *1 (D.Mass.1993); Warner v. Armco Inc., 1993 WL 771048, *8 (D.Minn.1993) (collecting unpublished cases).
(b) Derivative Suit Requirements
The SMWIA defendants contend that the plaintiffs' sixth claim must be dismissed because: (1) the plaintiffs fail to allege that the Trustee defendants breached their fiduciary duty by failing to collect the contributions; (2) the claim is based upon inapplicable provisions of the Trust Agreement and (3) the plaintiffs failed to follow the procedural requirements specified in Rule 23.1 of the Federal Rules of Civil Procedure for derivative claims for employer contributions owed to the pension fund. (SDs' Mot. to Dismiss at 10-11.) The court concludes that the plaintiffs failed to follow the requirements of Rule 23.1 by failing to either allege their efforts to demand action by the trustees or allege that such demand would have proved futile. Accordingly, the court will grant the motion to dismiss without prejudice with respect to Claim 6. Because the court concludes that the plaintiffs have failed to follow the requirements of Rule 23.1, the court will not address the SMWIA defendants' other arguments in support of their motion to dismiss Claim 6.
The SMWIA defendants contend that the plaintiffs both failed to fulfill the demand requirements of Rule 23.1 and failed to provide any explanation for their failure to do so. (Reply to SDs' Mot. to Dismiss at 5.) A derivative action permits an individual shareholder to bring, inter alia, "suit to enforce a corporate cause of action against officers, directors, and third parties." See Ross v. Bernhard, 396 U.S. 531, 534, 90 S. Ct. 733, 24 L. Ed. 2d 729 (1970). Devised as a suit in equity, the purpose of the derivative action was to place in the hands of the individual shareholder a means to protect the interests of the corporation from the misfeasance and malfeasance of "faithless directors and managers." See Cohen v. Beneficial Loan Corp., 337 U.S. 541, 548, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). To prevent the abuse of this remedy, however, equity courts established as a precondition for the suit that the shareholder demonstrate "that the corporation itself had refused to proceed after suitable demand, unless excused by extraordinary conditions." See Kamen, 500 U.S. at 95-96, 111 S. Ct. 1711 (quoting Ross, 396 U.S. at 534, 90 S. Ct. 733). This requirement is accommodated by Federal Rule of Civil Procedure 23.1. Rule 23.1 states in pertinent part:
*22 The complaint [in a derivative action] shall ... allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for the plaintiff's failure to obtain the action or for not making the effort. ****
FED.R.CIV.P. 23.1.
The plaintiffs argue that they are not required to fulfill the demand requirement under Rule 23.1. (Opp'n to SDs' Mot. to Dismiss at 13-14.) The plaintiffs argue that according to Kamen, a case involving a suit under the Investment Company Act of 1940, 15 U.S.C. § 80a-20(a), a district court must look to the particular federal substantive law to determine whether a demand requirement exists. See Kamen, 500 U.S. at 95, 111 S. Ct. 1711. The plaintiffs here are suing Pursuant to ERISA section 502(a)(3) which authorizes actions by participants for equitable relief to redress violations of ERISA or the plan. (Opp'n to SDs' Mot. to Dismiss at 15.) The plaintiffs argue that neither section 502(a)(3) nor any other provision of ERISA imposes a demand requirement. (Opp'n to SDs' Mot. to Dismiss at 15.)
The court, however, looks for guidance to those authorities specifically addressing whether Rule 23.1 applies to derivative claims brought by ERISA plan participants against employers to collect delinquent contributions. See Diduck, 974 F.2d at 287; Kenney, 790 F.Supp. at 16; Thornton, 692 F.2d at 1080; Crawford, 1993 WL 438463 at *1; Warner, 1993 WL 771048 at *8. Because the plaintiffs' claim for unpaid contributions is on behalf of the plan, and because the Trustees bear the primary responsibility for enforcing obligations under the plan, the court concludes that the plaintiffs' claim may properly be brought only as a derivative action and thus is subject to the requirements of Rule 23.1. See Diduck, 974 F.2d at 287; Thornton, 692 F.2d at 1080.
The court next turns to whether the plaintiffs may be excused from fulfilling the demand requirement. The purpose of the demand requirement is to "affor[d] the directors an opportunity to exercise their reasonable business judgment and `waive a legal right vested in the corporation in the belief that its best interests will be promoted by not insisting on such right.'" See Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 533, 104 S. Ct. 831, 78 L. Ed. 2d 645 (1984) (quoting Corbus v. Alaska Treadwell Gold Mining Co., 187 U.S. 455, 463, 23 S. Ct. 157, 47 L. Ed. 256 (1903)). Ordinarily, it is only when demand is excused that a shareholder enjoys the right to initiate "suit on behalf of his corporation in disregard of the directors' wishes." See R. Clark, CORPORATE LAW § 15.2, p. 640 (1986).
The plaintiffs argue that, if a demand requirement exists, it may be dispensed with if compliance would be futile. (Opp'n to SDs' Mot. to Dismiss at 17.) The plaintiffs argue that they have alleged facts showing that a demand on the trustees would have been futile. (Opp'n to SDs' Mot. to Dismiss at 18.) The SMWIA defendants, however, argue that the plaintiffs must plead with particularity the reasons why it would have been futile to demand that the Trustees sue the SMWIA for contributions. See Gaubert v. Federal Home Loan Bank Bd., 863 F.2d 59, 69 (D.C.Cir. 1988). (SDs' Reply at 6.) In Gaubert, the D.C. Circuit held that a plaintiff bringing a derivative action and claiming futility as art exception from the demand requirement must plead with particularity some reason to infer that the directors (or trustees, in an ERISA case) could not have *23 acted independently. See Gaubert, 863 F.2d at 69.
Federal Rules of Civil Procedure 8(a)(2), 8(e) and 8(f) state that technical forms of pleading are not required, that pleadings ought to be construed liberally so as to do substantial justice and, importantly, that they need to contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." See, e.g., Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1202 (2d ed.1990). Hence, a complaint is not subject to dismissal with prejudice unless it appears with certainty that no relief may be granted under any set of facts that can be proved in support of its allegations. See Heimann v. National Elevator Industry Pension Fund, 187 F.3d 493, 509 (5th Cir.1999). Although the plaintiffs' opposition explains why the action would have been futile, they failed to allege futility in the Amended Complaint. (Am.Compl. ¶¶ 40, 41; Claim 6.) Thus, the court may not excuse the plaintiffs' failure to follow the demand requirement. Nevertheless, this court will dismiss the plaintiffs' sixth claim without prejudice and will grant the plaintiff leave to refile the claim within 30 days of the date of this Memorandum Opinion.
C. Plaintiffs' Request for Leave to File a Second Amended Complaint
Although the plaintiffs have not filed a separate motion to amend their amended complaint, the plaintiffs requested leave to amend in their oppositions to the defendants' motions to dismiss. (Opp'n to SDs' Mot. to Dismiss at 20-21; Opp'n to TDs' Mot. to Dismiss at 44.)
Because the plaintiffs already have amended their complaint and the defendants have filed their answer, the plaintiffs may further amend only with leave of this court. Under Rule 15 of the Federal Rules of Civil Procedure, "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend the party's pleading only by leave of the court or by written consent of the adverse party...." Fed.R.Civ.P. 15(a). The court recognizes that leave to amend a complaint "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962). The decision whether to permit a party to amend a pleading is within the discretion of the court. See Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir. 1996). It is, however, an abuse of discretion by the court to deny leave to amend unless there is a sufficiently compelling reason, such as "undue delay, bad faith or dilatory motive ... repeated failure to cure deficiencies by [previous] amendments ... [or] futility of amendment." Id. (quoting Foman, 371 U.S. at 182, 83 S. Ct. 227).
Because the SMWIA defendants have not opposed the plaintiffs' request to amend, the court grants the plaintiffs leave to amend the plaintiffs' sixth claim and file a second amended complaint with respect to the sixth claim. However, as indicated above, the court concludes that leave to amend with respect to the fourth claim would be futile and, accordingly, the court will deny the plaintiffs' motion for leave to amend with respect to their fourth claim.
The Trustee defendants oppose the plaintiffs' request for leave to amend on two grounds. (Reply to TDs' Mot to Dismiss at 24.) First, the Trustee defendants contend that, with respect to the plaintiffs' first three claims, any amendments would be futile because setting contribution rates and corresponding benefit levels is not a fiduciary duty and cannot as a matter of law be the basis for a breach of fiduciary *24 duty. (Reply to TDs' Mot. to Dismiss at 24.) Second, the Trustee defendants contend that they should not be required to undertake the time and expense of responding to yet another version of the plaintiffs' complaint. See Gaubert, 863 F.2d at 59 (affirming denial of leave to amend where second amended complaint would not have been materially different from first amended complaint); (Reply to TDs' Mot. to Dismiss at 24.)
This court finds no evidence in the record of bad faith or dilatory motive on the part of the plaintiffs. Yet, as indicated above, this court concludes that the proposed amendments to the first, second, and third claims in the amended complaint would be futile. Accordingly, this court grants the plaintiffs' request for leave to amend with respect to the amended complaint's fifth, seventh and eighth claims, and denies the plaintiffs' request for leave to amend with respect to the amended complaint's first, second and third claims.
D. Plaintiffs' Request to Stay Consideration of the Pending Motions and Order a Settlement Conference
While the pending motions to dismiss were sub judice, the plaintiffs moved to stay consideration of the motions and to refer this matter to a magistrate judge for a settlement conference. Both defendants object to the plaintiffs' motion and contended that substantial resources already have been invested in briefing the Pending motions in two different federal courts. Moreover, the defendants noted that, because the motions already have been briefed, a referral to a magistrate judge at the present stage would not save additional attorney's fees and thus the avoidance of additional attorney's fees would not promote settlement in this instance. Upon consideration of the Plaintiffs' motion, the defendants' oppositions and the plaintiffs' reply, this court concludes that staying the pending motions and referring this matter to a magistrate judge would not be appropriate. Accordingly, the court will deny the plaintiffs' motion to refer this matter to a magistrate judge and to stay consideration of the pending motions during a settlement conference.
V. CONCLUSION
For the foregoing reasons, this court grants the Trustee defendants' motion to dismiss with prejudice with respect to claims 1, 2 and 3 and without prejudice with respect to claims 5, 7 and 18. The court further grants the SMWIA defendants' motion to dismiss with prejudice with respect to claim 4 and without prejudice with respect to claim 6. The court also grants in part and denies in part the plaintiffs' motion for leave to file a second amended complaint and, specifically, grants the motion for leave to file a second amended complaint with respect to claims 5, 6, 7 and 8, and denies the plaintiffs' motion for leave to file a second amended complaint with respect to claims 1, 2, 3 and 4. The court further denies the plaintiffs' motion to refer the case to a magistrate judge for settlement discussions and to stay consideration of the pending motions To dismiss during such discussions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/846803/ | Order Michigan Supreme Court
Lansing, Michigan
February 27, 2006 Clifford W. Taylor,
Chief Justice
Michael F. Cavanagh
127425(39) Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman,
MICHAEL L. DAYMON and KATHRYN Justices
DAYMON,
Plaintiffs-Appellees,
v SC: 127425
COA: 249007
Gratiot CC: 00-006637-CZ
TED L. FUHRMAN,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s order of
November 10, 2005 is considered, and it is DENIED, because it does not appear that the
order was entered erroneously.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 27, 2006 _________________________________________
d0221 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726925/ | 970 So. 2d 826 (2007)
AXEL
v.
STATE.
No. 1D07-0649.
District Court of Appeal of Florida, First District.
December 20, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322060/ | 175 Ga. App. 75 (1985)
332 S.E.2d 373
STRIPLING
v.
FARMERS & MERCHANTS BANK.
69846.
Court of Appeals of Georgia.
Decided June 7, 1985.
J. Laddie Boatright, for appellant.
Terry R. Barnick, for appellee.
BEASLEY, Judge.
Stripling executed two promissory notes to the Farmers and Merchants Bank, which also held deeds to real estate given as security for the notes. When payments became delinquent, on February 7, 1984, the bank conducted a foreclosure sale of the secured property, bringing $39,000. Since this sum was insufficient to cover the debt, within 30 days the bank sought confirmation of the sale, which was accomplished. Then the bank filed a complaint seeking a deficiency judgment against the borrower. No responsive pleadings were filed and a default judgment in the amount of $15,185.59 was entered. Stripling did not appeal the confirmation order or the default judgment.
Thereafter, the bank levied on property owned by Stripling in order to satisfy the judgment. Stripling filed an affidavit of illegality to the levy based on two grounds: 1) the foreclosure proceeding and confirmation were defective because of the dates the property was advertised for sale; 2) he was never personally served in the suit seeking *76 a deficiency judgment. The bank traversed the affidavit and moved for summary judgment on the grounds that as a matter of law, the affidavit was not sustainable. After a hearing, the motion was granted and the sale was permitted to proceed. In finding for the bank the court held that, regardless of whether there was an irregularity in the advertisement of the sale, "a defendant who has had his day in court may not go behind a judgment for the purpose of collaterally attacking an underlying judgment by means of an affidavit of illegality." Concerning the contention as to lack of personal service the court held that Stripling failed to meet requirements necessary to raise that issue by affidavit of illegality. Hence the appeal. Held:
1. Stripling has not argued, by brief or otherwise, the issue of lack of service and that ground is considered abandoned. Court of Appeals Rule 15 (a) (2).
2. According to the bank's allegations in the confirmation proceeding, advertisements of the February 7 sale were published on January 4, 11, 18 and 25, 1984. Stripling contends this invalidates the sale because OCGA § 44-14-162 requires that sales under power "be advertised . . . in the usual manner of a sheriff's sales." OCGA § 9-13-140 requires that notice of a judicial sale be published weekly for four weeks. OCGA § 9-13-141 specifies notice once a week for four weeks "immediately preceding" the day the sale is to take place.
This argument provides no basis for reversal. "A defendant against whom a judgment has been rendered after he has been duly served has had, in legal contemplation, his `day in court,' and cannot go behind the judgment by affidavit of illegality." Fitzgerald Granitoid Co. v. Alpha Portland Cement Co., 15 Ga. App. 174 (1) (82 S.E. 774) (1914). An affidavit of illegality may not be utilized to attack a judgment for any cause that could have been set up as a defense in the original suit. Murphey v. Smith, 16 Ga. App. 472 (2) (85 S.E. 791) (1915). "Unless the judgment is absolutely void, an affidavit of illegality is never the proper method to attack it." Mason v. Fisher, 143 Ga. App. 573, 574 (239 SE2d 226) (1977). Stripling, with proper notice, had two opportunities to raise the issue on which he predicated the affidavit of illegality. The day is now past and the dilatory defendant may not go behind the judgments in question.
Moreover, not every irregularity furnishes a basis for voiding a foreclosure sale. The crucial point of the inquiry on confirmation is to insure that the sale was not chilled and the price bid was in fact market value. Shantha v. West Ga. Nat. Bank, 145 Ga. App. 712 (244 SE2d 643) (1978); Walker v. Northeast &c. Credit Assn., 148 Ga. App. 121, 122 (251 SE2d 92) (1978); Oates v. Sea Island Bank, 172 Ga. App. 178, 179 (322 SE2d 291) (1984). The alleged failure to advertise the four weeks immediately preceding the sale pursuant to OCGA § 9-13-141, would not render it absolutely void. The trial court correctly *77 held that the affidavit of illegality could not be used to circumvent the need for timely raising any issue as to advertisement in the former proceedings.
3. Upon due consideration, the motion to impose penalties for frivolous appeal is denied.
Judgment affirmed. Deen, P. J., and Pope, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322051/ | 177 S.E.2d 385 (1970)
277 N.C. 305
STATE of North Carolina
v.
Richie "Ricky" Lee FOWLER.
No. 37.
Supreme Court of North Carolina.
November 18, 1970.
*386 Robert Morgan, Atty. Gen., Ernest L. Evans and Edward L. Eatman, Jr., Raleigh, Staff Attys., for the State.
Richard A. Cohan, Charlotte, for defendant appellant.
SHARP, Justice:
This appeal poses the question whether a defendant, charged under G.S. § 49-2 with the willful failure to support an illegitimate child, is entitled to have the prosecution dismissed when the death of the child makes it impossible for the court to grant his motion for a blood-grouping test.
In 1945 the legislature provided that the court before which a prosecution under G. S. § 49-2 is brought, "upon motion of the defendant, shall direct and order that the defendant, the mother and the child shall submit to a blood grouping test; * * * that the results of a blood grouping test shall be admitted in evidence when offered by a duly licensed practicing physician or other duly qualified person; * * *." G. S. § 49-7. In 1949, by G.S. § 8-50.1, this same right was extended to "any criminal action or proceedings in any court in which the question of paternity arises, regardless of any presumptions with respect to paternity." Such evidence was made "competent to rebut any presumptions of paternity."
The value of serological blood tests, when made and interpreted by specifically qualified technicians, using approved testing procedures and reagents of standard strength, is now generally recognized. Annot., 46 A.L.R. 2d 1000 (1956); 10 Am. Jur.2d Bastards § 32 (1963); McCormick on Evidence § 178 (1954). Such tests, however, can never prove the paternity of any individual, and they cannot always exclude the possibility. Nevertheless, in a significant number of cases, they can disprove it. 149 A.M.A.J. 699 (1952); 108 A.M.A.J. 2138-2142 (1937), cited in Beach v. Beach, 72 App.D.C. 318, 114 F.2d 479, 131 A.L.R. 804. In other words, the result *387 of the blood test will be either "exclusion of paternity demonstrated" or "exclusion of paternity not possible." 27 Can. Bar Rev. 537, 548 (1949). It has been estimated that by tests, based upon each of three blood type classifications, A-B-O, M-N, and Rh-hr, a man falsely accused has a 50-55% chance of proving his nonpaternity. 34 Cornell L.Q. 72, 75 (1949); McCormick, supra at p. 380; 23 Wash. & Lee L.Rev. 411, 419 (1966).
The nature and effect of the blood grouping tests is succinctly stated in a well documented comment in 23 Wash. & Lee L.Rev. 411: "[T]he experts agree that the test results are conclusive only in excluding the putative father. The results might show him to have a blood type which the father of the child must have had; but this only indicates that of all the people of that blood type or group, he, as well as anyone else with that blood type or group, could have been the father of the child. * * *" Id. at 416-417.
"Medical experts agree that blood groups never change during lifetime, and that by the laws of genetics it is indisputable that no individual can possess a blood group factor which is absent in both of his true parents. Therefore when the blood types of the mother and child are known, medical experts can determine scientifically what the blood type of the father may be and what it cannot be. The medical profession does not claim that the tests are infallible even if correctly administered, but instead admits that there are theoretical exceptionsone in approximately 50,000 to 100,000 cases. Such exceptions, however, are of little importance when it is considered that when `tests are accurately performed there is hardly any other evidence that can approach in reliability the conclusions based on such blood tests.' Id. at 417-418. * * * (Geneticists differ in their estimates of the frequency with which exceptions to the genetic laws occur. In 71 Harv.L.Rev. 466 (1958) it is suggested that, at the most, only one exception for every 10,000 births occurs.)
"The only areas in which the results of blood grouping tests should be open to attack are in the method of testing or in the qualifications of the persons performing the tests." Id. at 422. For a discussion of the sources of error in blood group testing and interpretations see 5 U.C.L.A.L.Rev. 629, 635 (1958); 50 Mich.L.Rev. 582, 595-596 (1952); 15 Journal of Forensic Medicine 106 (1968). For other explanations of the blood grouping tests for paternity see: 1 Wigmore on Evidence (3d ed., 1940 and Supp. 1964) §§ 165a, 165b; 34 Cornell L.Q. 72 (1948).
In a few cases it has been found that an infant's blood group cannot be established immediately after birth. "However, by the age of six months, an accurate determination can always be had." 50 Mich.L.Rev. 592, 596 (1952). In Fowler v. Rizzuto, Sp.Sess. 121 N.Y.S.2d 666, it is said "that a blood test cannot be completely carried out" until the child is at least one month old.
There can be no doubt that a defendant's right to a blood test is a substantial right and that, upon defendant's motion, the court must order the test when it is possible to do so. However, as Professor Stansbury has pointed out, both G.S. § 49-7 and G.S. § 8-50.1 are silent as to the weight to be given to the blood test. Stansbury, N.C. Evidence (2d Ed., 1963) § 86 n. 7. See 33 N.C.L.Rev. 360 n. 15 (1955); 27 N.C.L.Rev. 456-457 (1949). Since the statutes do not make the test which establishes nonpaternity conclusive of that issue but merely provide that the results of such test "when offered by a * * * duly qualified person" shall be admitted in evidence, it seems clear that the legislative intent was that the jury should consider the test results, whatever they might show, along with all the other evidence in determining the issue of paternity. Jordan v. Davis, 143 Me. 185, 57 A.2d 209, Berry v. Chaplin, 76 Cal. App. 2d 652, 169 P.2d 442. See McCormick, supra at pp. 382-383; Annot., 46 A.L.R. 2d 1000, §§ 12-16 (1956); 10 Am.Jur.2d Bastards § *388 32 (1963). See also the dissenting opinion in Houghton v. Houghton, 179 Neb. 275, 137 N.W.2d 861, 872; and 9 U.L.A. 110-114, Uniform Act on Blood Tests to Determine Paternity.
There is nothing in N.C.Gen. Stats., Ch. 49, Art. I, which requires the continued life of the child as the basis for a prosecution under G.S. § 49-2. The death of the child does not abate or prevent a prosecution against the father of an illegitimate for his willful failure to support and maintain the child prior to its death. See State v. Beatty, 66 N.C. 648. Whether an act, or a willful failure to act, constitutes a crime is determined as of the time the act is committed or omitted. "[T]he status of an act as a crime is fixed when it is once completed, and that status cannot be changed by the subsequent act of the criminal or of third persons * * *." 22 C.J.S. Criminal Law § 41 (1961). Thus, if defendant was the father of Michael Wayne Hicks, the child's death did not make his willful failure to support it during its lifetime any less criminal or take away the State's right to punish his crime.
To hold that a prosecution under G.S. § 49-2 must be dismissed when the death of the child deprives the defendant of a blood test would be to attach to the test a significance which the legislature failed to give it. Even when a blood grouping test demonstrates nonpaternity our law does not make the test conclusive of that issue. A fortiori, the absence of a test, whichif madewould provide one falsely accused only an even chance to prove his nonpaternity, should not result in a dismissal of the action. When the death of the child makes a blood test impossible the situation is analogous to that which occurs when an eyewitness to events constituting the basis for an indictment dies before the accused has interviewed him or taken his deposition. It would hardly be suggested that to try the defendant after the death of that witness would deprive him of due process and that therefore the prosecution must be dismissed.
Our research, and that of defendant, has discovered only one case involving facts similar to those with which we now deal. In Burton v. Thompson, 147 Me. 299, 87 A.2d 114, the respondent in a bastardy proceeding moved for a blood grouping test. Under the applicable Maine statute, the respondent was entitled to the test, the result of which was admissible in evidence only if it excluded the possibility of paternity. The complainant's child had lived only 12 hours after birth. The respondent's request was "submitted to the Law court for ruling and opinion as to any and all questions of law involved." The Supreme Judicial Court of Maine dismissed the case because it was apparent that "final disposition" of it did not turn upon the allowance or denial of the motion, and the rule was that the law court would not decide prematurely interlocutory questions which subsequent proceedings might show to be wholly immaterial. However, the court concluded its opinion by saying: "Although no decision is appropriate under the rule stated, we do not hesitate to point out that `child' under the blood grouping test statute means a living person. Could a dead child be ordered to submit to the tests? We think not." We concur in this obvious good sense.
Although not the basis for our decision in this case, we note that open-heart surgery, which requires blood transfusions, would never be performed unless the patient's blood type had been established. We have no doubt that the records of Duke Hospital contain all the information about the blood of Michael Wayne Hicks which could be obtained by testing the blood of a month-old baby. Although this information was accessible to defendant, the record discloses no effort by him to obtain it.
We hold that the trial court rightly denied defendant's motion to dismiss the action. The case, however, must be remanded to the Superior Court for a modification of condition (2) of the judgment which requires defendant to pay the sum *389 of $2,857.49 to Patricia Ann Hicks. The record discloses that amount to be the total of the following bills incident to the birth and subsequent medical treatment of Michael Wayne Hicks: Garrison Hospital of Gastonia $249.50; Drs. Chambers and Marder $15.00; Gaston Memorial Hospital $19.87; Duke Medical Center $596.50; Duke Hospital $1,976.62. The record also discloses that at the time of the trial these bills had not been paid. On the oral argument we ascertained that they were still unpaid. G.S. § 49-8 does not contemplate that money paid into court to discharge past due obligations such as these should be paid to a person to whom it was not due. When, without compensation, doctors and hospitals have performed immediately necessary services incident to the birth of a child and its subsequent welfare, public policy and simple justice require that money paid into court for them be disbursed directly to them. In no other way can their interests be protected.
This cause is returned to the Court of Appeals for remand to the Superior Court with directions that it amend condition (2) of its judgment so that the money which defendant is ordered to pay into the office of the Clerk of the Superior Court shall be disbursed to the doctors and hospitals entitled to receive it.
Modified and affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322071/ | 175 Ga. App. 158 (1985)
332 S.E.2d 899
PYBURN
v.
THE STATE.
70027.
Court of Appeals of Georgia.
Decided May 31, 1985.
Rehearing Denied June 18, 1985.
Ross L. Hatcher III, for appellant.
David L. Lomenick, Jr., District Attorney, David J. Dunn, Jr., Assistant District Attorney, for appellee.
BENHAM, Judge.
This appeal is from appellant's conviction of armed robbery and possession of a firearm by a convicted felon.
1. Relying on Head v. State, 253 Ga. 429 (322 SE2d 228) (1984), appellant contends that the trial court erred in failing to bifurcate the trial so that the jury would not be aware, while considering the armed robbery charge, of appellant's prior felony conviction. We find no error for the simple reason that appellant made no request for severance of the offenses or bifurcation of the trial. Head requires that the trial court take such action if it is requested, but imposes no duty on the trial court to do so on its own motion.
*159 2. Appellant's second enumeration of error is related to the first: he complains of the trial court's failure to instruct the jury as to the limited purpose for which the evidence of a prior felony conviction could be used. This argument must fail for essentially the same reason as the first: appellant made no request for limiting instructions and made no objection to the evidence of the prior conviction. In Head, in considering circumstances under which bifurcation is not necessary, the Supreme Court said, "On request, the trial judge shall carefully instruct the jury as to the proper limitations upon their consideration of any evidence of prior convictions." (Emphasis supplied.) Id. at 432. In addition, "[i]t is well recognized that when evidence is admitted for one purpose, as it was in the instant case, it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury. [Cits.]" Harrell v. State, 241 Ga. 181, 186 (243 SE2d 890) (1978). Under the circumstances of this case, we find no error in the trial court's failure to charge, without request, on the limitations on consideration of evidence of appellant's prior conviction.
3. Appellant's third enumeration of error complains of the trial court's failure to strike a prospective juror for cause. The record shows that that juror was excused by the exercise of a peremptory strike by the State. Since the excusal did not cost appellant one of his peremptory strikes, any error in the trial court's refusal to strike the juror for cause was clearly harmless.
4. Appellant's fourth and fifth enumerations of error relate to the trial court's refusal to strike two other prospective jurors on whom appellant used two peremptory strikes, eventually exhausting his strikes before the jury selection was completed. One juror was acquainted with the victim and one with a police witness, and each initially indicated that she would be biased in favor of her acquaintance's credibility. However, on questioning by the trial court, both jurors said they could put aside their prior knowledge and judge the case fairly on the evidence.
"On the basis of the record, it appears that the factual circumstances of this case clearly come within the purview of the rule that `the fact that a juror has formed an opinion about the credibility of a witness does not mandate that he be excused for cause. [Cits.] Where an otherwise qualified juror indicates that he can and will fairly evaluate the evidence, the party who wishes to eliminate him must do so by means of the peremptory strike. There was no abuse of discretion in the trial court's failure to strike [these] prospective [jurors] for cause.' [Cit.]" Strong v. State, 161 Ga. App. 606, 607 (288 SE2d 921) (1982).
5. Another juror informed the court, after the jury had been selected, that she belatedly realized that one of the police officers listed *160 as a witness had been a student of hers when he was in high school. The denial of appellant's motion for mistrial on that ground is appellant's sixth enumeration of error.
Whether or not the juror would have been subject to challenge for cause, we find no harm to appellant in the court's decision, since the record shows that the witness the juror taught never testified. That being so, any relationship between the juror and the witness was irrelevant.
6. Appellant's assertion in his seventh enumeration of error that his conviction is unauthorized because no one identified him in court as the robber is directly at odds with the record. The person listed in the indictment as the victim stated positively at trial that appellant was the robber. This enumeration of error is without merit.
7. Appellant's eighth enumeration of error is that he was wrongfully prevented from questioning the victim with regard to her husband's recent arrest on an unrelated charge. Even if the restriction of appellant's cross-examination on that issue was error, which we doubt (see Anderson v. State, 165 Ga. App. 885 (5) (303 SE2d 57) (1983), revd. on other grounds, 252 Ga. 103 (312 SE2d 113) (1984)), there was no harm to appellant since the information he sought was placed before the jury during cross-examination of the victim's husband himself. "No prejudice is shown . . . where evidence which has substantially the same effect as that sought to be elicited is subsequently admitted and placed before the jury for consideration. [Cit.]" Henderson v. State, 161 Ga. App. 211, 212 (288 SE2d 284) (1982).
8. In his ninth enumeration of error, appellant complains that the admission into evidence of a pistol was error because no foundation was laid to link the pistol to the crime and because there was no adequate chain of custody shown. A review of the record shows that testimony was admitted concerning a statement by appellant that he committed the crime with a nickel-plated .32 caliber pistol belonging to his father. Other testimony revealed that on the night of the robbery, appellant's father surrendered a nickel-plated .32 caliber pistol to police officers. One officer testified that he saw a pistol handed to another officer by appellant's father. Another officer testified that the pistol introduced at trial was the one that he received from the second officer. That evidence brings this case within the rule stated in Kates v. State, 152 Ga. App. 29, 30 (262 SE2d 221) (1979): "It is not necessary that the authenticity of an exhibit be proved to an absolute certainty. [Cits.] Unlike fungible items, distinct physical objects which can be identified upon mere observation require no custodial proof for their admission. [Cits.]" The ninth enumeration of error is without merit.
9. The police officer who testified about the surrender of the pistol mentioned above was not the officer to whom the gun was surrendered *161 by appellant's father. Appellant argues in support of his 10th enumeration of error that the officer's testimony was hearsay because the conduct he described occurred outside of appellant's presence. We are aware of no authority, and appellant has offered us none, which forbids testimony concerning events at which an accused was not present. The officer's testimony recounted only his observation of the events and did not include any conversations. His testimony was not based on "the veracity and competency of other persons" (OCGA § 24-3-1), and was not, therefore, hearsay.
10. The witnesses to the robbery testified that the robber wore a blue or dark "toboggan." For that reason, appellant insists in his 11th enumeration of error that the admission into evidence of a red toboggan found by police officers attempting to track the robber was error. We disagree.
The officers who were tracking the robber found the red toboggan and a pair of pantyhose with eye and mouth holes cut out. Appellant's statement, admitted into evidence after a hearing concerning its voluntariness, included an admission that he had worn a red toboggan and a pantyhose mask. That evidence was sufficient to present to the jury the question of whether the articles introduced at trial were those worn by appellant. Kates, supra.
As to the conflict in the State's evidence concerning the color of the toboggan worn by the robber, we find applicable the rule stated in Smith v. State, 161 Ga. App. 240 (288 SE2d 304) (1982), where the State's evidence concerning the chain of custody of evidence was in conflict: "The fact that the testimony of the state's witnesses does not agree in all details goes to its weight but does not affect the admissibility of the evidence. [Cits.]" There was no error in admitting the toboggan or the pantyhose mask into evidence.
11. Appellant's attack, in his 13th enumeration of error, on the trial court's charge on reasonable doubt is controlled adversely to him by Arnold v. State, 131 Ga. 494 (62 S.E. 806) (1908).
12. Without citation to applicable authority, appellant argues in support of his 14th enumeration of error that the trial court should have given, without request, an instruction that the jury, in considering appellant's statement to a police officer, take into account appellant's alleged intoxication at the time the statement was made. We find no merit in that argument.
The trial court gave a full and complete charge on the issue of appellant's statement. Had appellant wished a different charge on that collateral issue, he could have requested one. "[T]hough present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on the . . . failure to give instructions to the jury [cits.], this does not relieve him from the necessity of requesting instructions except in those circumstances *162 where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence. [Cits.]" Hardin v. State, 141 Ga. App. 115 (2) (232 SE2d 631) (1977). This case does not fall within the exception noted above, and there was no error in the trial court's failure to give the unrequested charge.
13. The indictment in this case alleged that money belonging to the Golden Gallon was taken from a named person. Appellant contends in his 15th enumeration of error that there was a fatal variance between the allegations of the indictment and the proof at trial in that there was no evidence that the money belonged to the Golden Gallon and because the victim named in the indictment was not the person in charge at the time of the robbery. The evidence was clear, however, that the money was taken from the cash drawer of the Golden Gallon and that the named victim was present and on duty at the time of the robbery. That proof was sufficient under the indictment. Wilson v. State, 148 Ga. App. 368 (2) (251 SE2d 387) (1978).
14. Appellant's last three enumerations of error raise the general grounds. The evidence at trial showed that appellant entered a store, displayed a pistol, demanded and took the paper money from the store's cash drawer, and fled, only to be arrested later in the evening with money in his boot almost exactly matching in amount the money taken from the store. That evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of the offense with which he was charged. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Judgment affirmed. Banke, C. J., and McMurray, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322219/ | 106 Ga. App. 264 (1962)
126 S.E.2d 686
BAILEY
v.
F. W. WOOLWORTH, INC.
39384.
Court of Appeals of Georgia.
Decided June 15, 1962.
Rehearing Denied July 6, 1962.
*265 Robert J. Duffy, John W. Hendrix, for plaintiff in error.
Bouhan, Lawrence, Williams, Levy & McAlpin, Frank W. Seiler, Kirk McAlpin, contra.
BELL, Judge.
1. Extracts from the plaintiff's deposition which appear in the record reveal that the plaintiff ordered, at the defendant's lunch counter, apple pie, ice cream and coffee; that as she ate the last piece of crust, and swallowed the last of the coffee together, she had a sensation of having a spasm in her throat and tried to cough; that she immediately went to the ladies' room with blood squirting through her hand and the napkin she was holding to her mouth; that she was cut and choking; that she was taken to the public health hospital but the two doctors on duty there could not find anything in her throat; that she went to the Central of Georgia Hospital where the doctor made X-rays and looked in her throat; that she still had a cutting in her throat; that the doctor stated that if glass was present it would not show up on the X-ray; that she stayed in the hospital, was helped upstairs by a nurse; and when she was preparing to go to bed she vomited up a good bit of glass.
Following this detailed testimony of several pages recounting her various examinations by numerous doctors, the deposition contains this language: "Q. Did they ever find the thing that was in your throat? A. I haven't seen anything. Q. To your *266 knowledge you don't know if there was anything? A. No. Q. Do you know of anyone who has ever seen it? A. No."
The answer to the first quoted question, whether the doctors found anything in her throat, did not contradict her testimony as to swallowing the glass and subsequently vomiting it up. The doctors did not find it, and her own testimony indicates that no one was present when she vomited it. The answer to the third question did not contradict other testimony. The answer to the second question could be found by the jury to be that she had not seen anything "they found."
The evidence contained in the plaintiff's deposition was not uncertain or contradictory and shows a substantial issue as to a material fact to be determined which had to be submitted to the jury. Code Ann. § 110-1203.
2. There remains to be considered whether the record reveals any evidence from which the jury might find the defendant was negligent. The plaintiff here detected an obstruction in her throat after eating, which, under her version of the occurrence, was either in the last bite of pie or in the coffee. Her positive testimony shows that this detection was done by the use of one of her five senses, namely, the sense of touch. Something was in her throat and choking her. Prior to this the plaintiff had been sitting at the counter for a time sufficient to consume ice cream, pie and coffee. Certainly, common sense tells us, and a jury might so find, that she could not have done this with an obstruction already present in her throat. From the evidence that the plaintiff detected an obstruction in her throat immediately after consuming the pie and coffee and that she later vomited glass, the jury could find that the glass was in the pie or coffee and that it was not in her throat prior to her consumption of these foods. Since the plaintiff did not see the object but only felt it, she could not say whether it came from the pie or the coffee, but since the defendant served both of them to her she is not required to prove from which particular food it came. Obviously there is as much negligence in having a dangerous substance such as glass in pie as in coffee or ice cream. It would seem that by the exercise of ordinary diligence, it could have been kept out of the pie *267 and coffee, and, if it is in either, this is evidence sufficient to warrant a jury finding negligence on the part of the seller. See Crowley v. Lane Drug Stores, 54 Ga. App. 859 (189 S.E. 380); Davis v. Williams, 58 Ga. App. 274 (5) (198 S.E. 357); and Code § 105-1101.
The case of Miller v. Gerber Products Co., 207 Ga. 385 (62 SE2d 174), vigorously relied upon by the defendant, does not compel a different conclusion. In Gerber there was no evidence that the glass found in the baby's mouth came from the glass jar which the defendant had supplied. There was no evidence as to whether the baby had been eating other food or what the baby was doing immediately prior to being fed so as to eliminate the possibility of her having placed the glass in her mouth prior to the time of being fed the peas from the jar. From the factual situation in the present case it appears that the possibility of the glass coming from a source other than the times furnished to the plaintiff by the defendant is not present, while in Gerber such a possibility was present.
The trial court erred in granting the defendant's motion for summary judgment.
Judgment reversed. Felton, C. J., and Hall, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322208/ | 126 S.E.2d 379 (1962)
James W. TURNER
v.
STATE COMPENSATION COMMISSIONER and New River & Pocahontas Consolidated Coal Co.
No. 12132.
Supreme Court of Appeals of West Virginia.
January 30, 1962.
Submitted on Rehearing May 29, 1962.
Decided on Rehearing June 26, 1962.
*380 Mahan, Higgins, Thrift & Graney, Patrick C. Graney, Jr., Fayetteville, for appellant.
R. L. Theibert, Charleston, for appellees.
*381 BROWNING, Judge.
On January 30, 1962, this Court handed down the foregoing opinion in this case, reported in 123 S.E.2d at page 880, reversing the order of the Workmen's Compensation Appeal Board of July 10, 1961, and the order of the State Compensation Commissioner of March 14, 1961, awarding the claimant compensation benefits for silicosis in the first stage. That decision was unanimous, although Judge Given, since deceased, filed a concurring opinion in which Judge Berry joined. Thereafter, on the first day of March, 1962, counsel for the claimant filed a petition for rehearing which was granted by this Court on May 1, 1962. In the order granting the rehearing this Court directed that upon such rehearing three questions be briefed and argued: (1) the period of limitation in which to file a claim for silicosis benefits; (2) the period of limitation beyond which, when benefits are allowed and the charges therefor are allocated among multiple employers, such benefits may not be charged against a former employer; and (3) the chargeability of such benefits against the surplus compensation fund provided for in Code, 23-3-1, as amended, in the event they may not be charged against any employer or employers.
Pursuant to the rehearing order, briefs were submitted and the case was reargued on May 29, 1962, by counsel for the claimant and the employer.
It is apparent from the briefs and argument of opposing counsel that they are in agreement that an application for silicosis benefits must be filed within two years after the last exposure of the claimant to silicon dioxide dust in harmful quantities. They are also apparently in agreement that Code, 23-4-1 and Code, 23-4-15b pertain only to the allocation of charges where there are multiple employers within the two-year period prior to the filing of a claim for benefits, and that any such charges may not be assessed against an employer totally without the two-year period immediately preceding the filing of claimant's application. Counsel for the claimant, in brief and argument, as well as counsel for the employer, are emphatic in their contentions that no award to this claimant could be charged to the surplus fund. Code, 23-3-1, as amended, provides: "* * * such surplus fund shall be sufficiently large to cover the catastrophe hazard, the second injury hazard, and all losses not otherwise specifically provided for in this chapter." See upon this question Rogers v. State Compensation Commissioner (Martin v. State Compensation Commissioner), 140 W. Va. 376, 84 S.E.2d 218, particularly this quotation from the opinion in those consolidated cases: "It is obvious that a claim for compensation for silicosis in the first stage does not relate to catastrophe hazard within the statutory definition of a catastrophe. See State ex rel. Mountain Fuel Company v. Trant, [138] W.Va. [737] 77 S.E.2d 608. It is also manifest that a claim for compensation for silicosis in the first stage does not involve a second injury hazard or a loss not otherwise specifically provided for in the statute. In consequence the surplus fund is not subject to a claim for compensation for silicosis in the first stage and such claim may not be charged against or paid from that fund." As heretofore stated, counsel for the opposing parties in this case are agreed that such statement is correct as applied to the facts in this case. It is ably contended by counsel for the claimant that the legislative intent of the phrase, "* * * or have suffered a perceptible aggravation of an existing silicosis, in this State * * *", contained in Code, 23-4-1, as amended, was to limit the "perceptible aggravation" requirement of this section to those claimants who have previously contracted silicosis outside the state and who thereafter come into the state to work. However that may be, the section as written provides for the disbursement of the compensation fund to such employees as "have been exposed to *382 the hazard of silicon dioxide dust or to any other occupational hazard, and have contracted silicosis or other occupational disease, or have suffered a perceptible aggravation of an existing silicosis, in this State * * *" (Italics supplied) and such intention to so limit the section is not expressed. To the contrary, the words used clearly and unambiguously require that an existing silicosis, wherever contracted, be perceptibly aggravated in this state to entitle a claimant to benefits therefor. The Constitution of this State gives this Court the power to interpret, construe and in a proper case apply the Acts of the Legislature. Only the Legislature can enact laws under that document.
Under the provisions of the Workmen's Compensation Law, when a claimant for compensation files his application he must of necessity be employed or have been last employed by one specific employer. It is that employer that becomes the "defendant" in the case unless further information shows that under the applicable provisions of Article 4 other employers by whom the claimant was employed and who may be affected by any award made to the claimant are added as "defendant" employers. However, this does not mean that the burden of proof is upon the claimant to show the precise month or year that his pre-existing silicosis was aggravated or the employer with whom he was employed at the time of such "perceptible aggravation". As heretofore stated, Sections 1, 8c and 15b of Article 4, Chapter 23 of the Code of West Virginia, as amended, are pari materia and under the provisions of Code, 23-4-1, as amended, "An application for benefits on account of silicosis shall set forth the name of the employer or employers and the time worked for each, and the commissioner may allocate to and divide any charges on account of such claim among the employers by whom the claimant was employed for as much as sixty days during the period of two years immediately preceding the filing of the application. The allocation shall be based upon the time and degree of exposure with each employer." This Court can only pass upon the issues which are before it in a particular case and certainly it would not be advisable to speculate upon all of the possible hypothetical cases that might arise under the provisions of the sections of the Code which relate to silicosis. To repeat, the evidence is clear and uncontradicted that this claimant had silicosis in the first stage when he was employed by the New River and Pocahontas Consolidated Coal Company. The evidence is equally clear and uncontradicted that between the date of such employment and the date that he filed his application for silicosis benefits there has been no perceptible aggravation of his silicotic condition. In the absence of evidence to the contrary and consistent with the holding in Henley v. State Compensation Commissioner, 129 W.Va. 15, 38 S.E.2d 380, if at the time the claimant filed his application for benefits there was a perceptible aggravation of his condition an inference might arise which would support a finding in favor of the claimant. This is the language used in the Henley case, quoting from Jones v. State Compensation Commissioner, 128 W.Va. 737, 740, 38 S.E.2d 376: "In the absence of any showing of a change in conditions in the mine, we think it reasonable to assume that his injurious exposure to silicon dioxide dust in harmful quantities continued to the date he ceased work." And perhaps in a hypothetical case there could be an "assumption" with reference to certain other applicable sections of Article 4 relating to silicosis. It should be observed, however, that the word "assumed" was used in the Henley case and that there is a difference between an assumption, an inference and a presumption.
This Court has consistently applied the liberality rule in interpretation of evidence in Workmen Compensation cases. However, it has just as firmly held, as it did in Williams v. State Compensation Commissioner, 127 W.Va. 78, 31 S.E.2d 546, *383 that "* * * while informality in the presentation of evidence is permitted in compensation cases, and, under many decisions of this Court, a rule of liberality * * * will be invoked in appraising the evidence presented, still the burden of establishing a claim rests upon the one who asserts it, and no rule of liberality will take the place of required proof."
This Court, therefore, adheres to the decision arrived at on the former hearing of this case; however, in the opinion and the syllabus it has attempted to clarify the exact point decided herein.
While this Court has held in Horner v. Amick, 64 W.Va. 172, 61 S.E. 40, and in several other cases, that Section 5, Article 8 of the Constitution of this State, which provides: "When a judgment or decree is reversed or affirmed by the supreme court of appeals, every point fairly arising upon the record of the case shall be considered and decided; and the reasons therefor shall be concisely stated in writing and preserved with the record of the case; and it shall be the duty of the court to prepare a syllabus of the points adjudicated in each case concurred in by three of the judges thereof, which shall be prefixed to the published report of the case.", is only directory in that it does not require this Court to "rehash again and again principles found in former decisions and constituting well settled law", in retrospect it can be observed that such was not true in the case of Kelly v. State Compensation Commissioner and Gulf Mining Co., and it is unfortunate that that case was decided by an order of this Court, entered on May 1, 1956, which does not appear in either the West Virginia or South Eastern Reports. Furthermore, it is apparent from our docket and from briefs and argument of counsel that there will be many more cases which may or may not be controlled by the Kelly order and the opinion in this case. If in any of those cases the facts are such as to distinguish it from the Kelly and the instant case and call for a contrary conclusion, it is the view of the writer of this opinion that such case should not be decided by an order.
Reversed and remanded.
Judge LESLIE E. GIVEN died before resubmission on rehearing.
Judge CAPLAN participated in the decision on rehearing, voting with the majority.
BERRY, Judge (dissenting).
Upon the rehearing of this case, I respectfully dissent from the majority opinion and would affirm the orders of the State Compensation Commissioner and the Workmen's Compensation Appeal Board allowing compensation to the claimant.
The concurring opinion written by Judge Given, now deceased, in which I joined, heretofore, filed in this case and reported in 123 S.E.2d 880, is not only approved by me on the rehearing, but I now assign another reason to support my dissent from the majority opinion in the rehearing of this case.
The majority opinion admits that the claim for compensation benefits was timely filed by the claimant, i. e., within two years from the last harmful exposure, in compliance with the provisions of Code, 23-4-15, as amended, and also admits that the claimant has contracted silicosis in this state and therefore complies with the provisions of Code, 23-4-1, as amended, but holds that he is not entitled to compensation. It is my opinion that this construction of the statute would make it meaningless.
The purpose of the statute was to provide for the payment of compensation to workmen who contracted silicosis in their work in this state. To hold now that a workmen, who had contracted silicosis while working in this state and who had never been paid for same, is not entitled to compensation, although his claim was filed *384 within the time required for filing of such claim, does not appear to be within the purpose and meaning of the statute.
The majority opinion holds that if a claimant has contracted silicosis in this state before working for the last employer or employers he must show perceptible aggravation before he is entitled to compensation. I am of the opinion, as stated in the concurring opinion heretofore filed in this case, that if a claimant who has already contracted silicosis in this state and is later subjected to silicon dioxide dust in harmful quantities, perceptible aggravation may be presumed in order to allow compensation benefits where the claim is timely filed. See Henley v. State Comp. Com'r., 129 W. Va. 15, 38 S.E.2d 380. The refusal to allow compensation benefits in such cases as the one at bar is based on chargeability, the reason being that if the claimant did not contract silicosis while working for an employer, or if silicosis already contracted was not aggravated while working for such employer or employers, they should not be charged with the payment of compensation benefits. This, in my opinion, would create a loss not otherwise specifically provided for and would come within the purview of the provisions of the surplus fund, Code, 23-3-1, as amended, and payment could be made in such cases from such fund. This would alleviate the necessity of holding that a person contracting silicosis while working in this state for the statutory period, and filing his claim for benefits within the time prescribed by the statute, could not receive benefits therefor.
To allow compensation benefits in such cases would not be in conflict with the holding in the case of Rogers v. State Comp. Com'r., 140 W.Va. 376, 84 S.E.2d 218. The Rogers case merely held that a claim for compensation for silicosis in the first stage should not be charged against the surplus fund when it can properly be charged against the account of the employer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322214/ | 634 S.E.2d 410 (2006)
CARLSON
v.
The STATE.
No. A06A0088.
Court of Appeals of Georgia.
June 12, 2006.
Reconsideration Denied July 25, 2006.
*411 Ferris & Lott, Patrick S. Ferris, Douglas, for appellant.
Richard E. Currie, District Attorney, Kurt J. Martin, Assistant Attorney General, for appellee.
J. David Miller, Stephen D. Kelley, District Attorneys, Carmen D. Smith, Solicitor-General, Joseph F. Burford, Leigh S. Schrope, James C. Bonner, Jr., Atlanta, amici curiae.
MIKELL, Judge.
The Superior Court of Coffee County revoked Stephen A. Carlson's probation on the grounds that he violated the terms of his probated sentence by possessing marijuana in the county jail and by obstructing or hindering a law enforcement officer. On appeal, Carlson argues that the trial court's admission of testimony by a certified tester of marijuana was erroneous because the expert was not qualified under OCGA § 24-9-67.1 and that the evidence was insufficient to establish that he obstructed a law enforcement officer. We affirm.
*412 On September 7, 1995, Carlson pled guilty to a felony violation of the Georgia Controlled Substances Act and was sentenced to ten years probation. On May 11, 2005, Carlson was served an "Amended Petition for Modification/Revocation of Probation," which set forth three grounds for revoking his probation, two of which are pertinent here: (1) Carlson unlawfully brought marijuana into the Coffee County jail while he was an inmate there on April 9, 2005; and (2) Carlson committed the offense of obstructing a law enforcement officer on that same day. The trial court revoked the remainder of Carlson's probation.
1. Carlson contends that the trial court should have excluded the expert testimony that the substance at issue was marijuana.[1] The issue on appeal, which is one of first impression, is whether recently enacted OCGA § 24-9-67.1,[2] which governs expert witness testimony in civil actions, applies to probation revocation hearings. For the reasons that follow, we find that it does not.
The record shows that certified jailer A.J. Phillips testified that on or about April 9, 2005, he walked into Carlson's bunk and saw him rolling a marijuana joint. He took the joint from Carlson, who simultaneously threw a bag, which also contained marijuana, to the other side of the bunk. Phillips further testified that he placed the marijuana into the evidence locker for officer Scott Harper.
Scott Harper testified that he is employed as a drug investigator with the Coffee County Sheriff's Office and is a licensed marijuana examiner. Harper explained how he obtained his certification from the Georgia Bureau of Investigation to become a licensed tester of marijuana and the three tests that must be conducted to determine whether a substance is marijuana, which are the microscopic test, Duquenois Levine Reagent test, and KN Reagent or Fast Blue test. He testified that an examiner must have a positive result from all three tests before determining conclusively that a substance is marijuana and that the three tests, taken together, establish the identity of marijuana to a verifiable level of scientific certainty. When Harper was asked the results of the test, defense counsel objected on the grounds that Harper had not been qualified as an expert and was allowed to voir dire him. The trial court then overruled counsel's objection, and Harper testified that the substance was marijuana.
Defense counsel argued that probation revocations are civil proceedings, thus OCGA § 24-9-67.1 applies, and under Daubert v. Merrell Dow Pharmaceuticals,[3] Harper was not qualified to give his opinion as to his interpretation of the test results. The trial court overruled the objection, finding that Daubert did not mandate the exclusion of the testimony as the pertinent issue was whether Harper was certified as an expert to test the substance. We agree with the trial court's ruling.
Prior to the passage of Georgia's Tort Reform Act, the rule pertaining to expert testimony was codified at OCGA § 24-9-67 and provided that "experts' opinions on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses."[4] Effective February 16, 2005, OCGA § 24-9-67 was amended by striking the old Code section, and inserting in its place OCGA §§ 24-9-67 and 24-9-67.1. The newly enacted OCGA § 24-9-67 reads exactly as the pre-Tort Reform statute, except that it states that it applies to criminal cases.
OCGA § 24-9-67.1 provides that it "shall apply in all civil actions."[5] Carlson maintains *413 that OCGA § 24-9-67.1 applies here because probation revocation is a quasi-criminal proceeding, which is a subcategory of civil cases.
Generally, a probation revocation hearing "is a judicial matter, as a person under probation is still under the jurisdiction of the sentencing court and subject to the terms and conditions set down by the court."[6] In the hearing, the trial judge determines "whether the conduct of the defendant during the probation period has conformed to that outlined in the order of probation."[7] Regarding the issue of whether probation revocation is a civil or criminal proceeding, in Gagnon v. Scarpelli,[8] the United States Supreme Court stated that probation revocation is not a stage of a criminal prosecution.[9] Prior thereto, in Sellers v. State,[10] this court had remarked obliquely that a probation revocation proceeding was "somewhat ... `of a civil nature.'"[11]
Despite our dictum in Sellers in 1963, we held in 2004 that the evidentiary test set forth in Harper v. State,[12] which applies in criminal cases, applies to probation revocation proceedings.[13] In Harper,[14] our Supreme Court held that the trial judge determines whether a procedure or technique has reached a scientific stage of verifiable certainty based on evidence available to him.[15] Furthermore, once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice its level of verifiable certainty.[16] In the instant case, the tests performed were not novel and have *414 been widely accepted in Georgia courts and a substantial number of courts elsewhere.[17]
In light of the long-standing history of Harper[18] and its progeny, which existed when the legislature enacted OCGA § 24-9-67.1 as a part of Georgia's Tort Reform Act, we do not conclude that the legislature intended to abandon the Harper evidentiary test in criminal cases. Indeed, the almost verbatim re-enactment of old OCGA § 24-9-67 as new OCGA § 24-9-67 would seem to affirm Georgia's traditional reliance upon Harper in criminal matters, and we expressly hold that new OCGA § 24-9-67, and not OCGA § 24-9-67.1 controls the admission of evidence in probation revocation hearings. Accordingly, the trial court's ruling to permit Harper's testimony was not erroneous as the state was not required in a probation revocation proceeding to comply with Daubert to prove Harper's qualifications.
2. Carlson argues that the trial court erred by revoking his probation on the grounds that he obstructed a law enforcement officer because the evidence did not support the charge. We disagree.
"[T]his court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court."[19] "It is well settled law that the quality and quantum of evidence necessary for revocation of probation is not that demanded for conviction of crime."[20] "According to OCGA § 42-8-38(c), the revocation or continuance of probation is within the discretion of the trial court so long as a ruling to revoke is based on at least a preponderance of the evidence, as required by OCGA § 42-8-34.1(a)."[21] The evidence and facts must be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation.[22]
Pursuant to OCGA § 16-10-24(a), a person commits the offense of misdemeanor obstruction of a law enforcement officer when he or she knowingly and wilfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties. In the instant case, Officer Michael Vickers, Jr., testified that on the evening in question, he was fingerprinting several new inmates in the processing department at the jail; that Carlson gave Vickers his arrest warrant after receiving it from another officer; that after fingerprinting Carlson, he gave Carlson a file that contained the arrest warrant and sent him to Officer Hoyt Courson, who was entering information on the inmates on the computer in the same room; and that 20 to 30 minutes later, they discovered that Carlson's arrest warrant was missing. Courson testified that Carlson did not have the arrest warrant when he approached Courson's desk to be processed; that they never found the warrant; that he was unable to "book" Carlson without the warrant; and that the other inmates in processing at the time delivered all of their paperwork to him without incident. Although the evidence that Carlson made his arrest warrant unavailable to the officers is circumstantial, it is sufficient to authorize the trial court's finding, by a preponderance of the evidence, that Carlson obstructed the officers.[23]
Judgment affirmed.
BLACKBURN, P.J., and ADAMS, J., concur.
NOTES
[1] Carlson does not deny that he brought marijuana into the jail nor does he argue that his probation should not have been revoked on that ground.
[2] OCGA § 24-9-67.1, part of the Tort Reform Act of 2005 ("Senate Bill 3"), Ga. L. 2005, became effective on February 16, 2005.
[3] 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
[4] (Punctuation omitted.) Dailey v. State, 271 Ga. App. 492, 496(3), 610 S.E.2d 126 (2005).
[5] OCGA § 24-9-67.1(a). Subsection (a) also provides that
[t]he opinion of a witness qualified as an expert under this Code section may be given on the facts as proved by other witnesses. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing or trial. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
The remaining arguably pertinent subsections of the statute provide as follows:
(b) If scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case .... (d) Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert's testimony satisfies the requirements of subsections (a) and (b) of this Code section. Such hearing and ruling shall be completed no later than the final pretrial conference contemplated under Code Section 9-11-16.... (f) It is the intent of the legislature that, in all civil cases, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., [supra]; General Electric Co. v. Joiner, 522 U.S. 136, [118 S. Ct. 512, 139 L. Ed. 2d 508] (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, [119 S. Ct. 1167, 143 L. Ed. 2d 238] (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.
[6] (Citation omitted.) Williams v. Lawrence, 273 Ga. 295, 296, 540 S.E.2d 599 (2001), citing OCGA §§ 42-8-34(g) and 42-8-35.
[7] Robinson v. State, 154 Ga.App. 591, 593(2), 269 S.E.2d 86 (1980).
[8] 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).
[9] Id. at 782(II), 93 S. Ct. 1756.
[10] 107 Ga.App. 516, 130 S.E.2d 790 (1963).
[11] Id. at 518, 130 S.E.2d 790. Accord Scott v. State, 131 Ga.App. 504, 504-505, 206 S.E.2d 137 (1974).
[12] 249 Ga. 519, 292 S.E.2d 389 (1982).
[13] Grinstead v. State, 269 Ga.App. 820, 821-822(1), 605 S.E.2d 417 (2004).
[14] Supra.
[15] Id. at 525-526(1), 292 S.E.2d 389.
[16] Id. at 526(1), 292 S.E.2d 389.
[17] Cunrod v. State, 241 Ga.App. 743, 744-745(2), 526 S.E.2d 900 (1999).
[18] Supra.
[19] (Citation and punctuation omitted.) Parker v. State, 275 Ga.App. 35, 619 S.E.2d 750 (2005).
[20] (Punctuation and footnote omitted.) Dugger v. State, 260 Ga.App. 843, 846(2), 581 S.E.2d 655 (2003).
[21] Solomon v. State, 237 Ga.App. 655, 656, 516 S.E.2d 376 (1999).
[22] See Christian v. State, 164 Ga.App. 612, 613(2), 298 S.E.2d 325 (1982), citing United States v. Clanton, 419 F.2d 1304, 1305 (5th Cir. 1969).
[23] See Solomon, supra. See also Harper v. State, 146 Ga.App. 337, 338, 246 S.E.2d 391 (1978) (circumstantial evidence supported probation revocation). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322224/ | 634 S.E.2d 208 (2006)
MILK
v.
TOTAL PAY AND HR SOLUTIONS, INC.
No. A06A0709.
Court of Appeals of Georgia.
July 12, 2006.
*209 Flint & Connolly, John F. Connolly, Canton, for appellant.
Berger & Loewenthal, Gordon M. Berger, Atlanta, for appellee.
BERNES, Judge.
Joseph Milk appeals from the trial court's order granting summary judgment to Total Pay and HR Solutions, Inc. ("Total Pay") on its claims against him for money owed on a payroll services contract. On appeal, Milk asserts that the grant of summary judgment was improper because there were genuine issues of material fact over whether he could be held personally liable for the debt incurred by Burrito Joe's Holding, LLC ("Burrito Joe's"). We agree with Milk and reverse.
On appeal from the grant of summary judgment, we conduct a de novo review of the law and the evidence. Crisler v. Farber, 258 Ga.App. 456, 458(1), 574 S.E.2d 577 (2002). "When ruling on a motion for summary *210 judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion." Id. at 457(1), 574 S.E.2d 577. See Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).
Viewed in this light, the record reflects that on March 31, 2003, Burrito Joe's was duly organized as a Georgia limited liability company ("LLC") with appellant Milk as the sole managing member. The LLC was formed after Milk and several other individuals decided to open a fast-food Mexican restaurant in Canton. The group agreed that Milk would provide the initial financing, while two other individuals, Jay McGhee and Frank Struck, would manage the restaurant without compensation with the goal of eventually becoming LLC members who would be entitled to financial distributions, if the restaurant was successful.[1] In light of these understandings, Milk, McGhee, and Struck never received any wages or salaries from the restaurant.
Prior to the opening, the decision was made to use a payroll service for paying all employees hired by the restaurant. In June 2003, Struck signed a "Client Service Agreement" on behalf of Burrito Joe's with appellee Total Pay, which agreed to perform the payroll services. In return, Burrito Joe's was required to pay an administrative fee and provide funds for all payroll amounts, workers' compensation insurance premiums, and taxes that would be paid out each weekly pay period.
Burrito Joe's opened for business in July 2003 with several employees. However, the restaurant never operated at a profit, experienced mounting financial difficulties, and ultimately closed in September 2003.
After the restaurant closed, Total Pay commenced the present lawsuit against Burrito Joe's and Milk personally, seeking damages for the payroll services rendered to Burrito Joe's under the Client Service Agreement for which Total Pay was never paid. Burrito Joe's and Milk timely answered and denied liability under the subject agreement.
Following a discovery dispute between Total Pay and Burrito Joe's, the trial court entered an order compelling Burrito Joe's to produce certain business documents and respond to several interrogatories. When Burrito Joe's failed to comply with the order, Total Pay moved for sanctions, asking the trial court to strike Burrito Joe's answer and enter default judgment against the company. After conducting a hearing in which Burrito Joe's agreed to the imposition of the requested sanctions, the trial court entered an order striking Burrito Joe's answer and entering a default judgment against it.
Total Pay subsequently moved for summary judgment against Milk personally, claiming that there was no genuine issue of material fact over whether he could be held individually liable for the debt owed for the payroll services rendered to Burrito Joe's. Proceeding pro se, Milk filed a one-page response denying that Total Pay was entitled to summary judgment. Thereafter, the trial court entered its order granting summary judgment to Total Pay.
After reviewing the record and arguments of the parties, we conclude that Total Pay failed to establish that it was entitled to summary judgment against Milk personally. As an initial matter, we note that, contrary to Total Pay's suggestion, summary judgment was not authorized merely because Milk filed a one-page response that contained no substantive argument and failed to comply with Uniform Superior Court Rule 6.5. "[T]here is no such thing as a `default summary judgment.' By failing to respond to a motion for summary judgment, a party merely waives his right to present evidence in opposition to the motion.[2] It does not automatically *211 follow that the motion should be granted." (Citations and punctuation omitted.) Hughes v. Montgomery Contracting Co., 189 Ga.App. 814, 815, 377 S.E.2d 723 (1989). The burden remains "on the movant to show that there is no genuine issue of material fact and that [it] is entitled to judgment as a matter of law." (Citation and punctuation omitted.) Crisler, 258 Ga.App. at 458(2), 574 S.E.2d 577. Thus, irrespective of Milk's response, Total Pay still carried the burden of showing that there was no genuine issue of material fact over whether Milk could be held personally liable for money owed on the Client Service Agreement and that it was entitled to judgment as a matter of law on this issue. See Nat Katz & Assoc. v. Barber, 255 Ga.App. 207, 210(2), 564 S.E.2d 802 (2002). This, Total Pay has failed to do.
The record reflects that articles of organization for Burrito Joe's Holding, LLC were filed by the Georgia Secretary of State on March 31, 2003, which served as conclusive proof that all conditions for formation of the LLC had been satisfied. See OCGA § 14-11-203(d). Accordingly, Burrito Joe's legal existence as a Georgia LLC began on that date. See OCGA §§ 14-11-203(c), (d); XX-XX-XXX(e). In turn, the June 2003 Client Services Agreement specifying the payroll services to be provided by Total Pay states that "[t]his Agreement is made by and between Total Pay . . . and Burrito Joe's." Milk's signature appears nowhere on the agreement, either in his capacity as managing member of Burrito Joe's or in his personal capacity. Nor is there any evidence in the record that Milk ever executed a note individually guaranteeing payment for the payroll services.
Without more in the record, Milk clearly could not be held personally liable for the debt owed by Burrito Joe's to Total Pay under the Client Service Agreement.
The law of corporations is founded on the legal principle that each corporation is a separate entity, distinct and apart from its stockholders. We have long recognized that great caution should be exercised by the court in disregarding the corporate entity. And a member of a limited liability company similarly is considered separate from the company and is not a proper party to a proceeding by or against a limited liability company, solely by reason of being a member of the limited liability company, except in the case of actions by the member or derivative actions.
(Citations and punctuation omitted.) Yukon Partners v. Lodge Keeper Group, 258 Ga. App. 1, 5-6, 572 S.E.2d 647 (2002). See also OCGA § 14-11-303.
Total Pay raises several arguments for why it could seek payment of the debt from Milk. Total Pay first contends that summary judgment against Milk was authorized because Burrito Joe's dissolved before an operating agreement for the LLC was ever executed. But, the record contains an operating agreement dated July 1, 2003 that was signed by Milk, and during his deposition Milk denied that Burrito Joe's had ever been dissolved. Nevertheless, Total Pay relies upon an admission made by Burrito Joe's in its Responses to Plaintiff's Request for Admissions that "the LLC dissolved before an operating agreement was executed," which Total Pay claims constitutes a nonrebuttable judicial admission binding upon Milk.[3]
"It is true that . . . facts admitted via requests for admission are `judicial admissions,' which are conclusive unless withdrawal is permitted by the trial court. But the question presented here is whether such admissions by one defendant are binding on another defendant." (Footnote omitted.) Batchelor v. State Farm &c. Ins. Co., 240 Ga.App. 366, 367, 526 S.E.2d 68 (1999). Under Georgia law, admissions made by one defendant in a civil case are not binding on a *212 co-defendant "unless and until a joint interest is proven by other independent evidence." Mountain Bound v. Alliant FoodService, 242 Ga.App. 557, 558(2), 530 S.E.2d 272 (2000). See OCGA § 24-3-31(2); Batchelor, 240 Ga. App. at 367, 526 S.E.2d 68; Kirk v. Barnes, 147 Ga.App. 423, 423-424(1), 249 S.E.2d 140 (1978).
No joint interest exists between Burrito Joe's and Milk under the circumstances of this case. Burrito Joe's is an insolvent company that voluntarily agreed to entry of a default judgment against it. In contrast, Milk has continued to litigate this matter in his individual capacity and has different legal bases for denying liability than Burrito Joe's, including that the contract at issue was between two business entities separate and distinct from himself. Furthermore, treating the admissions of the LLC as binding on Milk personally would undermine the longstanding principle that officers and shareholders are not personally liable for corporate acts (a principle equally applicable in the LLC context), until such time as the corporate veil has been successfully pierced. See Bonner v. Brunson, 262 Ga.App. 521, 521-522, 585 S.E.2d 917 (2003); Yukon Partners, 258 Ga.App. at 5-6, 572 S.E.2d 647. Accordingly, we conclude that the interests of Burrito Joe's and Milk in this litigation are not so joint and coextensive as to justify treating the judicial admissions of the former as binding on the latter. See Mountain Bound, 242 Ga.App. at 558-559(2), 530 S.E.2d 272 (judicial admissions of defendant corporate officer who allegedly guaranteed debt of corporation not binding on defendant corporation in suit on the debt).[4]
Total Pay next contends that summary judgment was authorized because Milk undercapitalized Burrito Joe's and therefore was no longer protected by the "veil" of a separately maintained LLC. "Just as the so-called `corporate veil' protects an individual shareholder of a corporation from personal liability for the debts of the separate corporate entity (so long as the corporate forms are maintained)[,] so is a member of a[LLC] `veiled' from personal liability for the debts of the separately maintained LLC entity." Bonner, 262 Ga.App. at 521, 585 S.E.2d 917. For undercapitalization to justify piercing the veil, "it must be coupled with evidence of an intent at the time of capitalization to improperly avoid future debts of the [LLC]." (Punctuation and footnote omitted.) Boswell v. Primary Care Professionals, 265 Ga.App. 522, 525-526, 594 S.E.2d 725 (2004).
There is a lack of evidence of such intent in the present case. While Total Pay contends that a $20,000 check written out to cash conclusively shows that Milk withdrew "working capital for personal use so that the business would not have sufficient funds to pay creditors," there is no evidence in the record whatsoever that the withdrawn money was used for such a purpose. In fact, the check is dated April 30, 2003, before the debt to Total Pay was even incurred, the memo portion of the check denotes "equipment," and the amount withdrawn matches the amount McGhee testified was spent on equipment for the restaurant.
In a further effort to show that funds were purposefully and wrongfully diverted from Burrito Joe's to avoid paying the payroll services debt, Total Pay relies upon a one-page correspondence from McGhee to Milk *213 in which McGhee suggested that the restaurant's limited funds be used to pay the current payroll of the restaurant's employees rather than to pay off past debt owed to Total Pay. However, as previously noted, veil-piercing based on undercapitalization requires an improper "intent at the time of the capitalization to improperly avoid future debts." (Punctuation and footnote omitted; emphasis supplied.) Boswell, 265 Ga.App. at 525-526, 594 S.E.2d 725.[5] Moreover, there is no evidence showing that these payments to employees were anything other than legitimate business expenses, or that the payments were even made. Accordingly, Total Pay has failed to show that it was entitled to pierce the veil of the separately maintained Burrito Joe's in order to impose personal liability upon Milk. See Fuda v. Kroen, 204 Ga.App. 836, 838(1), 420 S.E.2d 767 (1992) (veil could not be pierced when plaintiff failed to establish that withdrawal of corporate funds "were not legitimate business expenses or authorized by the corporation as part of. . . [legitimate] compensation packages"). Compare Stein v. Cherokee Ins. Co., 169 Ga.App. 1, 3(4), 311 S.E.2d 220 (1983); Sheppard v. Tribble Heating & Air Conditioning, 163 Ga.App. 732, 732-733(1), 294 S.E.2d 572 (1982).
Finally, Total Pay argues that Milk can be held personally liable because he participated in fraud committed by Burrito Joe's.[6] An LLC member may be held individually liable if he or she personally participates or cooperates in a tort committed by the LLC or directs it to be done. See BTL COM v. Vachon, 278 Ga.App. 256, 260(1), 628 S.E.2d 690 (2006); Smith v. Hawks, 182 Ga. App. 379, 385(4), 355 S.E.2d 669 (1987). In support of its fraud claim, Total Pay relies upon the same evidence discussed supra, none of which establishes fraud as a matter of law by Burrito Joe's or Milk. As such, Total Pay was not entitled to summary judgment on this ground.
For these reasons, Total Pay failed to carry its burden of proving that there was no genuine issue of material fact, and that it was entitled to judgment as a matter of law, regarding whether Milk could be held personally liable for the payroll services debt. Thus, the trial court erred in granting summary judgment to Total Pay.
Judgment reversed.
ANDREWS, P.J., and BARNES, J., concur.
NOTES
[1] Another individual participated in the initial discussions regarding the LLC, provided additional financing, and assisted in the physical construction of the restaurant facility. But, it is unclear from the record if there was any understanding over whether he would eventually become an LLC member.
[2] We nevertheless note that we specifically disapprove of such a practice. Litigants should assist the trial court in its resolution of the issues.
[3] In a related argument, Total Pay contends that summary judgment was authorized against Milk personally because of the default judgment entered against Burrito Joe's. "A defendant in default is in the position of having admitted each and every material allegation of the plaintiff's petition except as to the amount of damages alleged." (Citation and punctuation omitted.) Hope Elec. Enterprises v. Proforce Staffing, 268 Ga.App. 302, 303(2), 601 S.E.2d 723 (2004). For the same reasons discussed infra, Milk is not bound by any admissions deemed to have been made by Burrito Joe's as a result of the default.
[4] Even if the judicial admission of Burrito Joe's bound Milk individually, Total Pay still would not be entitled to summary judgment. Dissolution, standing alone, does not cause a LLC to cease to exist as a legal entity separate from its members or automatically render members personally liable for LLC debts. See OCGA §§ 14-11-602 to XX-XX-XXX (discussing process of dissolution, winding up, and termination of a LLC). Cf. OCGA § 14-2-1405 cmt. ("[D]issolution proceedings do not have any of the characteristics of common law dissolution, which treated the corporate dissolution as analogous to the death of a natural person and abated lawsuits, vested equitable title to corporate property in the shareholders, imposed the fiduciary duty of trustees on directors who had custody of corporate assets, and revoked the authority of the registered agent."); Fulton Paper Co. v. Reeves, 212 Ga.App. 314, 315-318(2), 441 S.E.2d 881 (1994) (physical precedent only) (corporate officer could not be held personally liable for debt when corporation continued to exist as a corporate entity after administrative dissolution). Additionally, the formation of a LLC as a legal entity separate from its members is predicated on the public filing of the LLC's articles of organization, not on whether or when an operating agreement is executed. See OCGA §§ 14-11-203(c), (d); XX-XX-XXX(e).
[5] For the same reason, Total Pay cannot rely upon McGhee's deposition testimony in which he discussed how Milk declined to make additional financial contributions to the restaurant after it was clear that the restaurant was not making a profit and had incurred substantial debt.
[6] Total Pay further contends that Milk can be held personally liable because he participated in acts of conversion. Because Total Pay has failed to provide any legal argument or citation to the record to support any alleged acts of conversion, we conclude that it has abandoned this argument on appeal. Wilson v. 72 Riverside Investments, 277 Ga.App. 312, 314(3), 626 S.E.2d 521 (2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322372/ | 106 Ga. App. 230 (1962)
126 S.E.2d 873
AMERICAN BROADCASTING-PARAMOUNT THEATRES, INC., et al.
v.
SIMPSON et al.
39566.
Court of Appeals of Georgia.
Decided July 3, 1962.
*233 Wilson, Branch & Barwick, M. Cook Barwick, Alexander E. Wilson, III, Tom Bentley, for plaintiffs in error.
Smith, Kilpatrick, Cody, Rogers & McClatchey, Thomas E. Joiner, contra.
EBERHARDT, Judge.
Before dealing with the specific aspects of this case it would be well to comment on some peripheral issues. First, there is no question raised that there was a "publication" here of the allegedly defamatory material or that the material is actually defamatory. See Code § 105-701. Secondly, defendant Crosley Broadcasting raises no issue with respect to Code § 105-712, as amended (Ga. L. 1949, p. 1137) which provides: "The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as part of a visual or sound radio broadcast, by one other than such owner, licensee, or operator, *234 or agent or employee thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator or such agent or employee, has failed to exercise due care to prevent the publication or utterance of such statement in such broadcast." Although there are no decided cases in Georgia applying this provision, we think that the language "visual or sound radio broadcasting station" is sufficiently broad to encompass television stations and their broadcasts.[2] We find failure to exercise due care is sufficiently alleged (e.g., defendants "failed to exercise the slightest degree of care to prevent the publication. . .")[3]
1. Perhaps the most perplexing problem is whether defamatory material shown on television should be classified as a libel, a slander or in some third category. Code § 105-701 provides that a libel is "expressed in print, or writing, or pictures, or signs" while Code § 105-702 states that slander is "oral defamation."[4] It can be readily seen that there are some elements *235 of both libel and slander in this sort of television defamation. Courts in some other jurisdictions, however, seem content to attempt the squeezing of the defamatory remarks into the well worn libel or slander pigeonholes. See Leflar, 15 Ohio State L. J., supra, at 261.
Motion pictures involve an analogous situation. The only Georgia case involves a movie which did not name the plaintiff but which was widely advertised as being based on the book "I Am a Fugitive From a Georgia Chain Gang." Warner Bros. Pictures, Inc. v. Stanley, 56 Ga. App. 85 (192 SE 300). The book specifically named plaintiff. There the court treated the action as being one of libel, as did a subsequent appeal of the same case. Stanley v. Warner Bros. Pictures, Inc., 64 Ga. App. 228 (12 SE2d 441).
The cases in other jurisdictions are uniformly in accord with this view but usually after a more extensive discussion of the issue. Kelly v. Lowe's Inc., 76 FSupp. 473 (D. Mass.) (picture, *236 "They Were Expendable" based on book which named plaintiff in foreword and appendix; partial consent license rejected); Merle v. Sociological Research Film Corp., 166 App. Div. 376 (152 NYS 829) (silent movie); Brown v. Paramount Publix Corp., 240 App. Div. 520 (270 NYS 544), and the celebrated "Rasputin" case, Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd., 50 Times L. R. 581, 99 ALR 864 (Ct. App.). See 42 Va. L. R. 63, 73 (1956).
In television and radio cases, the courts have often based classification of the defamatory matter on whether or not a prepared script was used; a libel being found where script is used and "slander" where the extemporaneous remarks are made.[5] Compare Landau v. Columbia Broadcasting System, Inc., 205 Misc. 357 (128 NYS 2d 254) (dramatic television presentation from script held libel) with Remington v. Bentley, 88 FSupp. 166 (SD, NY) (defamatory remark on extemporaneous television program held slander, applying New York law). But see Shor v. Billingsley, 158 NYS 2d 476, holding to the contrary. Occasionally the situation is analogized to the reading of a libelous letter, which is still libel although an oral publication takes place. E.g., Hartmann v. Winchell, 296 NY 296 (73 NE2d 30, 171 ALR 759). See Code § 105-705. But whatever the rationale, we think the distinction bears very little relationship to the realities of the problem. After all, the listener or viewer cares little and often does not know whether a script is being used. Nor does the use of a script have any relationship to the broadcast's ability to harm.
*237 Commercial television began during the latter part of the decade beginning in 1940 and commercial radio less than forty years ago. Thus both media present new factual situations with respect to defamation, and we have pointed out above some of the difficulties that the courts have had in reconciling this type of defamation with the traditional libel-slander dichotomy. In truth, these new media pose new problems which cannot realistically be solved by resort thereto.
In Georgia, the libel and slander Code sections are a codification of the common law. Blackstock v. Fisher, 95 Ga. App. 117, 120 (97 SE2d 322). When the common law first recognized a right of action for defamatory remarks the only action was for slander. Then the development of a new medium the printing press led to the development of an action for printed defamation called libel. Restatement, Torts, § 568, Hist. note b (1938); Spring, Rights & Risks, § 20 (1956 Rev. Ed.); 42 Va. L. Rev. 63 (1956). May not the common law of Georgia develop a new classification to deal with these new media?
Our Supreme Court said when it recognized the right of a child to sue for injuries sustained while still in the mother's womb, that, in the absence of binding precedent, the court "will reach a decision based upon sound principles and fair deductions from the common law." Per Duckworth, C. J., in Tucker v. Howard L. Carmichael & Sons, Inc., 208 Ga. 201, 203 (65 SE2d 909), and see the cases there cited. In the leading case recognizing the right of privacy in America it was said: "The novelty of the complaint is no objection when an injury recognizable by the law is shown to have been inflicted on the plaintiff. In such a case `although there be no precedent, the common law will judge according to the law of nature and the public good.'" Per Cobb, J., in Pavesich v. New England Life Ins. Co., 122 Ga. 190, 193 (50 SE 68, 69 LRA 101, 106 ASR 104, 2 AC 561). Accord: Burks v. Green, 85 Ga. App. 327, 330 (69 SE2d 686); Brown v. Ga.-Tenn. Coaches, Inc., 88 Ga. App. 519, 532 (77 SE2d 24); Brown v. Ledger-Enquirer Co., 97 Ga. App. 595, 596 (103 SE2d 616), rev. on other grounds, 214 Ga. 422 (105 SE2d 229). And, in another case, "Such decisions as this do not involve a disregard of statute, or sound rules of *238 conduct or any constitutional provision . . . Answering . . . [defendant's] argument, we do indeed have a `charge to keep,' but that charge is not to perpetuate error or to allow our reasoning or conscience to decay or to turn deaf ears to new light and new life." (Emphasis added). Felton, J., in Brown v. Ga.-Tenn. Coaches, Inc., 88 Ga. App. 519, 532, supra. Further, "Some courts have held that the relief here sought can be granted only by legislation, and that in the absence of such legislation the courts are without power to grant it. Usurpation of the functions of the legislature by the courts is never justified, and will not be tolerated. But this fundamental principle is not upheld by a refusal of the judiciary to discharge to the limit of its authority the functions imposed upon it by the Constitution, upon the excuse that further legislation is necessary." Duckworth, J. (now C. J.), in Hornsby v. Smith, 191 Ga. 491, 500 (13 SE2d 20, 133 ALR 684). See Lacey v. Hutchinson, 5 Ga. App. 865 (64 SE 105), and Sammons v. Webb, 86 Ga. App. 382, 391 (12a) (71 SE2d 832). Code § 3-105 embodies that ancient principle that "For every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other."
As Holmes said, "[The law] is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow." The Common Law, 36 (1881). And Cardozo: "Unique situations can never have their answers ready made as in the complete letter-writing guides or the manuals of the art of conversation." The Growth of the Law, 133 (1924). "Modification implies growth," said Brandeis, "It is the life of the law." State of Washington v. W. C. Dawson & Co., 264 U. S. 219, 236 (44 SC 302, 68 LE 646) (dissenting opinion). And see the excellent collection of authorities in Shor v. Billingsley, 158 NYS2d, 476, supra.
The genius of the common law has been its ability to meet the challenges posed by changing circumstances. Can there be any doubt that this situation poses one of those challenges? As was said by Judge Fuld in his concurring opinion in Hartmann v. *239 Winchell, 296 NY 296, supra: "If the base of liability for defamation is to be broadened in the case of radio broadcasting, justification should be sought not in the fiction that reading from a paper ipso facto constitutes a publication by writing, but in a frank recognition that sound policy requires such a result. . . That defamation by radio, in the absence of script or transcription, lacks the measure of durability possessed by written libel in nowise lessens its Capacity for harm. Since the element of damage is, historically, the basis of the common-law action for defamation, and since it is as reasonable to presume damage from the nature of the medium employed when a slander is broadcast by radio as when published by writing, both logic and policy point the conclusion that defamation by radio should be actionable per se."[6] (Emphasis added; citations omitted).
Furthermore, the defendants here were presenting a dramatization of a "stale" news event (as opposed to the reporting of "current" news at least partially in the public interest) and were presenting the dramatization for a profit. In such a situation there seems little doubt that entrepreneur or "non-fault" liability should be imposed as "The problem is purely one of allocating a probable or inevitable loss in such a manner as to entail the least hardship upon any individual and thus to preserve the social and economic resources of the community. . . Reputation may be harmed quite as much by a libel innocently or inadvertently published as by any other kind. Such a risk is properly allocated to those whose enterprises, operated for their own immediate profit, create it. Losses of this nature can be regarded as one of the expenses of the undertaking which caused it." Donnelly, Defamation by Radio: A Reconsideration, 34 Iowa L. Rev. 12, 23-24 (1948).
This is the underlying basis of the traditional non-fault newspaper liability. Spring, Rights and Risks, § 24 (1956 Rev. Ed.); 69 Harv. L. Rev. 875, 902-913; Holmes, The Common Law 138-139 (1881). See Southeastern Newspapers, Inc. v. Walker, *240 76 Ga. App. 57 (2) (44 SE2d 697) and citations. The same considerations apply to radio and television defamation. Believing as we do that the common law must adapt, and classically has adapted, to meet new situations, we now make that "frank recognition" called for by Judge Fuld, supra, that defamation by radio and television falls into a new category, thus completing the triptych. In this category, defamation by broadcast or "defamacast"[7] is actionable per se.[8] "The law may well be as astute to reach and cure as is the libeler to hide and do harm." Diener v. Star-Chronicle Pub. Co., 230 Mo. 613 (132 SW 1143, 1148).
The legislature recognized this new category in 1949 with the enactment of Code Ann. § 105-712. It is significant that the statute, quoted above, refers to "defamatory statements" rather than "libel" or "slander." This recognition is also shown by part of the same legislative package (Ga. L. 1949, p. 1137; Code Ann. § 105-714) which purports to limit damage as follows: "In any action for damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, the complaining party shall be allowed only such actual consequential, or punitive damages as have been alleged and proved."[9]
*241 2. Count 1 alleged that in fact the prisoners were transferred in two railroad cars, each of which had an iron screen across both ends behind which sat an armed guard. One unarmed guard was locked inside each car with the prisoners. The guards worked two six-hour shifts daily. Only two guards worked shifts inside the Capone car: plaintiff and one Head, who was allegedly the captain of the guard. In the drama, only one unarmed guard was shown locked inside the Capone car and it is alleged that this guard is not shown "as a person in authority such as the captain of the guard."
Defendant attempts to characterize the situation as an "alternative defamation" such as "Either A or B accepted the bribe." It is admitted that liability in such a situation has not been adjudicated in Georgia heretofore but it is insisted that the majority of other jurisdictions would deny recovery. Plaintiff, on the other hand, contends that this is a situation where one not named in the publication may show by extrinsic facts that the defamation applies to him. Such a showing is said to be a jury question.
On either theory we think that plaintiff should prevail.
(a) The "extrinsic fact" approach is not new in Georgia. In the 1891 case of Hardy v. Williamson, 86 Ga. 551 (12 SE 874, 22 ASR 479), the publication was: "`Either by erroneous classification, or classification obtained by the brick company and their subcontractors, by collusion with the subordinate engineers of the construction company, or some of them, the work of the Chattahoochee Brick Company has been over-estimated to the extent of at least one hundred thousand dollars, and probably one hundred and fifty thousand dollars.'" There it was said in the headnote that "Even where the words used may at first sight appear only to apply to the subordinate engineers as a class, and not to be specifically defamatory of any particular one of them, still if the plaintiff can satisfy the jury that they referred especially to him, he would be authorized to maintain *242 the action." In the opinion, at page 555 the court said: "[Plaintiff] avers in the declaration that . . . [the words] were spoken of and concerning him, and he avers extraneous facts to show that they referred to him; he alleges that during the controversy with the brick company, the defendant ordered that section of the railroad which the plaintiff had surveyed and classified to be re-surveyed and re-classified, and that whilst this was being done the words complained of were written and published, and that this caused people who read the publication to believe it was intended for him."
A number of other cases have held that, as a general rule, the question of whether the defamatory publication was referable to plaintiff by the use of extrinsic facts was a jury question. Colvard v. Black, 110 Ga. 642, 646 (36 SE 80) and citations; Walker v. Sheehan, 80 Ga. App. 606 (4) (56 SE2d 628); Davis v. Macon Telegraph Pub. Co., 93 Ga. App. 633, 634 (3), 636 (92 SE2d 619) and citations.
No prior Georgia case appears to have presented the exact question involved here as to whether a dramatic presentation of an incident that actually happened may be defamatory. Here there is no allegation that plaintiff's name was used (or that a similar name was used) or that the actor portraying the corrupted guard resembled plaintiff in any physical way. The presentation is not based on a book which names plaintiff, thus distinguishing this case from Warner Bros. Pictures, Inc. v. Stanley, 56 Ga. App. 85, supra.
And there is a dearth of authority in other jurisdictions. However, a substantially similar situation occurred when the motion picture "Rasputin The Mad Monk" was produced. Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd., 50 Times L. Rev. 581, 99 ALR 864. The film dealt with the alleged circumstances of the rise and fall of the influence of Rasputin on the Czar and Czarina of Russia. Rasputin's influence ended when he was murdered. In the film, a "Prince Chegodieff" is shown as Rasputin's killer and a "Princess Natasha" is shown as the Prince's betrothed. Both are members of the royal court. The alleged defamation took place when "Princess Natasha" is impliedly shown being raped (or seduced) by Rasputin. *243 In fact, the plaintiff, Princess Irina, was a member of the royal court and later became the wife of Prince Youssoupoff. Prince Yossoupoff wrote a book, which appeared before the film, in which he claimed to have assassinated Rasputin. Princess Irina brought suit in libel claiming defamation because of the rape (or seduction) scene.[10]
The English Court of Appeals upheld a sizable verdict for the Princess, stating that a sufficient identity was shown to support the jury verdict even though the defendant claimed that it did not know Princess Irina existed when the movie was produced.
Thus, the semi-fictional portrayal of a real life event is fraught with the possibility that the public, or at least that segment of the public that knows the plaintiff, will believe that the presentation refers to the plaintiff. See, Restatement, Torts, § 564 (d) and Illus. 4 (1938). This is peculiarly a question for the jury, and we cannot solve it here. We think that the plaintiff meets the "extrinsic fact" test on general demurrer when he alleges that he was identified because the corrupted guard was not shown in a position of authority.
(b) But even considering that plaintiff is not sufficiently identified by extrinsic fact, we think that both of the unarmed guards who were stationed on the inside of the Capone car during the transfer would be entitled to maintain an action. The question here is slightly different, involving the defamation of a small group.[11]
*244 It is certainly true as contended by defendants that there is a split of authority on this question. See Neiman-Marcus v. Lait, 13 FRD 311, at 315 (SD, NY). There an interesting three-in-one suit on this point was presented. The suit was based on the book "U. S.A. Confidential," which attributed certain immoralities to "some" of a department store's nine models, to "most" of the store's twenty-five men's store salesmen and to 382 saleswomen. All nine of the models, fifteen of the salesmen and thirty of the salesgirls were plaintiffs. The court upheld the right of action of the models and the salesmen, stating at page 315: "An imputation of gross immorality to some of a small group casts suspicion upon all, where no attempt is made to exclude the innocent." Reliance was placed on Illustration 2 in Restatement, Torts, § 564 which is: "A newspaper publishes the statement that some member of B's household has committed murder. In the absence of any circumstances indicating that some particular member of B's household was referred to, the newspaper has defamed each member of B's household."[12] However, the suit was dismissed as *245 to the salesgirls because there the charge was general (essentially "all") and the group was so large. See, Restatement of Torts, § 564, Illus. 3.
Hardy v. Williamson, 86 Ga. 551, discussed supra, would apparently uphold this view. There the court said, at p. 557: "Nor does it make any difference that the words were put in the disjunctive, to wit, `the sub-engineers, or some of them.' It may turn out on the trial that the expression `or some of them' was used because the writer did not mean that all were guilty, but that the plaintiff, alone or with others, was guilty. The plaintiff would be equally aggrieved if charged alone, or as one of a number of engineers, and equally entitled to maintain his action." (Emphasis added).[13]
Not only does this case involve a new type of publication of defamatory matter (a "defamacast"), the paucity of cases in this area being fully discussed in Division 1, supra, but the form of the defamatory presentation (a dramatized account, depicting one person, of a factual occurrence where two persons participated) presents a situation for which we have found no precedent and cannot, we think, be placed in the relatively simple "A or B accepted the bribe" category. These reasons especially contribute to our holding that the plaintiff is entitled to have a jury assess his injury, if any. As Judge Kaufman said in upholding the actions by the models and men's salesmen in Nieman-Marcus, supra, at 315: "This result seems to find support in logic and justice.. ."
It was not error to overrule the defendants' general demurrer to count 1.
3. Turning to count 2, plaintiff is attempting to maintain his action as one of the group of sixteen guards involved in the *246 prison transfer. The size of the group has been said to be determinative in these cases. 69 Harv. L. Rev. 875, 894. While the group of fifteen men's store salesmen of a total of twenty-five employed at the time of publication in Nieman-Marcus, 13 FRD 311, supra, is apparently the largest group whose right of action has been upheld, we do not think that the size of this group of guards would prohibit recovery under the group defamation theory approved in Division 2(b) of this opinion. The difficulty here is that, despite plaintiff's ingenious attempts to plead around the problem, the defamation is simply not "of and concerning" plaintiff as a member of the sixteen-man group. As the factual statement shows, the only guard shown as corrupted is the guard inside the Capone car. The pleadings show that only two guards were ever utilized in this position plaintiff and captain of the guard Head. While plaintiff may maintain his action on either basis outlined in Division 2 of this opinion ("extrinsic fact" or "group of two") he cannot, for this factual reason, maintain it as a member of the group of sixteen. On this basis only, the count is essentially a repetition of count 1 and the general demurrers were properly overruled.
4. Turning now to the special demurrers, we find that they deal with several areas of the petition:
(a) Impression conveyed by telecast. These demurrers attack as conclusions allegations that the program conveyed the impression of factuality (Numbers 3, 10) or the impression that one of the guards on the train committed the crimes alluded to (Number 13) or that it was "readily apparent" from the first half of Part One that the defamation would continue through the remainder of Part One and Part Two (Numbers 7, 15). Plaintiff's difficulty here is the problem of conveying in his petition what was transmitted in the broadcast. Determinative is what was said in Warner Bros. Pictures, Inc. v. Stanley, 56 Ga. App. 85, supra, at 109, that: "What impression the picture made on those who saw and heard it, and what the picture showed, would necessarily have to be stated in general terms. These general terms can not be held, in a case like this, to be conclusions of the pleader, for the reason that the actions, looks, and subtleties of a moving picture can not be transferred to *247 the printed page. . . The situation with which we are confronted requires a liberality with the pleader he could not otherwise expect . . . [The court] can not construe a series of moving pictures it has never seen." (Citations omitted).
(b) Inclusion of telegram. Attached as an exhibit and referred to in the petition is a telegram sent by the Director of the Bureau of Prisons to the President of the ABC network protesting "the totally unfounded implications" of Part One and requesting that Part Two not be shown. "Irrelevant and immaterial" (Numbers 8, 16) and "inflammatory and prejudicial" (Numbers 9, 17) is the attack made. We think the telegram from a public official presumably in a position to know the true facts illustrates the issue of care and also the issue of wilful and intentional defamatory publication.
(c) Others. Demurrers contending that evidence is pled (Numbers 4, 11), that allegations are repetitious (Numbers 6, 14) and that the facts pled which are alleged to convey an impression of authenticity are not within the general knowledge of the public (Numbers 5, 12) have been considered, and are without merit.
There was no error in overruling all of the special demurrers.
Judgment affirmed. Carlisle, P. J., and Russell, J., concur.
NOTES
[2] Further support for this position is found in the fact that the legislation is an almost in toto enactment of the "model act" suggested by the National Association of Radio and Television Broadcasters. Leflar, Radio and TV Defamation, 15 Ohio State L. J. 252, 267-269, n. 62 (1954); Remmers, Recent Legislative Trends in Defamation by Radio, 64 Harv. L. R. 727, 741, n. 71 (1951). The last authority notes the possibility of Federal pre-emption of the field.
[3] Because the allegations apply to both defendants, we do not find it necessary to decide whether a failure to exercise due care must be alleged against the defendant television network under this section. See, Remmers, supra, note 1, at 752, n. 121. Several States have placed the burden of showing due care on the broadcaster. 9 Okla. L. Rev. 103, 106 (1956).
The legislation apparently makes at least the broadcaster's liability comparable with that of a "secondary publisher" of printed libel.
[4] "A libel differs from a slander, in that a publication may be libelous when, if spoken orally, it would not be slanderous. [Citations]. This distinction is said by the books to be based upon the grounds that a vocal utterance does not import the same quality of deliberation, and is more prone to the ebullition of fleeting passion, mere effervescence or lack of mental equipoise, and to be accepted as indicative of feeling, rather than of conviction, and, therefore, not so much gravity is allowed to it as to words deliberately written down and published; the latter justifying the inference that they are the expression of settled conviction and effect the public mind correspondingly. So, too, an oral charge merely falls upon the ear, and the agency of the wrong-doer in inflicting injury comes to an end when his utterance has died on the ear, but not so with the written or printed charge, which may pass from hand to hand indefinitely, and may renew its youth, so to speak, as a defamation as long as the libel itself remains in existence, and hatch a new crop of slanders, to be blown hither and yon like thistledown at every sight of the libel, so that a printed slander, when published, takes a wider and more mischievous range than mere oral defamation, and is more reprehensible in the eyes of the law." Ukman v. Daily Record Co., 189 Mo. 378, 391 (88 SW 60).
[5] There is no specific allegation here that a script was used although it is highly unlikely that any "dramatic" program such as "The Untouchables" could be presented without a script. It is alleged that Desilu Productions, Inc. "produced" the show. However, neither Desilu nor the sponsor nor the sponsor's advertising agency nor any actor in the dramatic cast is named as a party defendant. See: Spring, Rights and Risks, § 24 (1956 Rev. Ed.) where the actors, the sponsor and the sponsor's advertising agency are said to be "primary publishers." See: Remmers, 64 Harv. L. Rev., supra, at 753; 22 Law and Contemporary Problems, 539.
[6] See, on the "capacity for harm" theory, 42 Va. L. Rev. 63 (1956); Restatement, Torts, § 568 (1938).
[7] While this may be "a glossological illegitimate, a neological love-child" (Morse v. State, 10 Ga. App. 61, 62, 72 SE 534), we can think of nothing better others similar are being generally accepted, i.e., "newscast," "telecast," "telstar," etc.
[8] The libel and slander classification case law is not controlling in such a category. However, the great body of the case law will not become obsolete, in the area, because certainly principles such as what is defamatory, what is privileged and so forth will continue to apply. A more complete development of the rules dealing with "defamacast" will of necessity await later cases.
[9] The meaning of "actual" or "actual consequential" damages (e.g., does this mean "special damages" as must be proved in many slander cases? See Code § 105-702) is not now before us and we express no opinion on the matter. See Remmers, 64 Harv. L. Rev., supra, at 745. Note the absence of a comma between the words "actual" and "consequential." However, a comma appears between these words in the caption of the act.
[10] Defendant's novel argument that portraying a woman as being raped is not any adverse implication against her chastity was brusquely rejected by the court (". . . it takes real courage to argue [this point]" said Lord Justice Scrutton). This case and a number of others brought in different jurisdictions were later settled. Dean, Hatred, Ridicule or Contempt, 167 (1954).
[11] There is apparently a distinction between defamation of a group or restricted class, as shown in Neiman-Marcus v. Lait, 13 FRD 311, discussed infra, and defamation of a class. For example, recovery was permitted one Jewish plaintiff where all Jews in Quebec as a class had been defamed and there were only 75 Jewish families in Quebec. Ortenberg v. Plamondon, 24 R.J.Q. 69, 385 (CBR Quebec). See, Developments in the Law: Defamation, 69 Harv. L. Rev. 875, 894-901 (1956); Wilner, Defamation of a Collectivity, 90 Pa. L. Rev. 414, 428 (1942). Cf. Constitution Pub. Co. v. Leathers, 48 Ga. App. 429, 433 (172 SE 923). See generally on group libel, 34 Col. L. Rev. 1322 (1934); Wittenberg, Group Defamation, 15 Ohio State L. J. 273 (1954).
[12] Also cited was a case where three store employees were lined up by the manager and told, "You are one of three who trifled with the money." Recoveries by all three in separate suits were affirmed but only because the appellate court was equally divided. Montgomery Ward & Co. v. Harland, 205 Miss. 380 (38 S2d 771); Montgomery Ward & Co. v. Blakely, 200 Miss. 81 (25 S2d 585); Montgomery Ward & Co. v. Skinner, 200 Miss. 44 (25 S2d 572).
The opinion upholding recovery relies on the 1850 case of Forbes v. Johnson, 50 Ky. 48, and Hardy v. Williamson, 86 Ga. 551, supra.
[13] In view of the court's rationale as discussed in Division 2(a) of this opinion, it may be that this statement was dictum. Defendants admit that the rule enunciated in Constitution Pub. Co. v. Leathers, 48 Ga. App. 429, at 433, supra, was dictum and therefore not binding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322373/ | 217 Ga. 846 (1962)
126 S.E.2d 407
EAST et al.
v.
MAYOR &c. OF WRIGHTSVILLE et al.
21579.
Supreme Court of Georgia.
Argued March 12, 1962.
Decided May 14, 1962.
*847 Paul J. Jones, Jr., Jones & Douglas, for plaintiffs in error.
Emory L. Rowland, Joe W. Rowland, contra.
GRICE, Justice.
Whether a certain area had become a public alley brought about litigation resulting in the assignments of error here. The Mayor & Council of Wrightsville, J. M. Cook, Sr., Mrs. Sarah L. Thompson and Mrs. Cordelia H. Tucker filed their petition in the Superior Court of Johnson County, Georgia, against George East and Mrs. L. A. Lovett, charging that, by constructing a parking lot on property which included a public alley of the City of Wrightsville, the defendants were trespassing and encroaching upon a public alley, and seeking injunctive relief.
The area in question appears on a plat attached to the petition and is designated as "alley number one." As shown, this alley fronts on West Elm Street and intersects with another area, designated as "alley number two," which, in turn, intersects with what is referred to as "alley number three," likewise shown on the plat. The property of each of the plaintiffs Tucker, Cook, and Thompson either abuts or fronts on these alleged connecting alleys.
The petition as finally amended alleged that: The area in dispute, "alley number one," is the same referred to in the covenant in a recorded deed from B. B. Tanner to E. A. Lovett, dated December 10, 1912, a copy of which is attached to the petition. That covenant provides that "The alley west of lands of E. E. Daley is not to be closed without the consent of both the said B. B. Tanner and the said E. A. Lovett." At the time of the execution of this deed the alley described therein was used as a way from West Elm Street to the gates of a barn, and was also used as a means of ingress and egress from that street to the rear of the property conveyed by the deed. For at least 40 years the general public had used all three of the alleys "publicly, continuously, exclusively, uninterrupted, and peaceably, and without the permission of anyone, by riding over same in buggies, motor vehicles of all descriptions, wagons, bycicles [sic], and by walking over same." The plaintiff Mayor & Council of Wrightsville had "used same during said period of time as an access to the rear of various store building [set *848 out specifically in a prior paragraph of the petition], containing various types of businesses, for its trash and garbage trucks to collect trash and garbage put out the rear of said buildings." During such 40 years the city government had "on numerous occasions and without the request of or permission of anyone, worked and repaired said alleys heretofore described in order to keep them fit for use by the general public . . . has filled in holes in said alleys, surfaced them with clay, leveled them and done other acts to keep them fit for use by the general public"; and "by reason of the aforesaid facts the alleys, being alleys No. One, Two and Three, have been and are public alleys."
When the defendants made excavations in "alley number one" and paved it, the plaintiff Mayor and Council of Wrightsville was maintaining it and considering it to be a public alley, and although this matter had previously been discussed between the plaintiff city and the defendants, the latter excavated and paved this alley without securing permission from the plaintiff city. Such excavation and paving constitute continuing acts of trespass on such alley, making it impassable and impossible to use by the general public. The defendants have threatened to and have manifested their intention to continue trespassing on this alley and thus to prevent its use by the general public.
The plaintiffs also charged that it is necessary to enjoin the defendants from so using "alley number one" in order to avoid a multiplicity of suits. This alley is the only means of ingress and egress for city garbage and fire trucks to the rear of nine business establishments which abut on this alley and it is the city's duty to furnish those businesses with adequate fire protection and garbage collection, but the city is seriously hampered in doing so because of such trespass on this alley and further threatened trespasses.
Each of the three individual plaintiffs alleged that, by reason of the defendants' trespasses on such alley, prohibiting ingress and egress as aforesaid, his business has been damaged in specified particulars; that he has never given his consent for anyone to interfere or encroach on such alley; and that his *849 injuries are continuing and irreparable and he has no adequate remedy at law.
Besides temporary restraint and other relief, the plaintiffs prayed that the defendants be permanently enjoined from trespassing on this alley for the purpose of preparing it or using it for a portion of a parking lot, and that they have general relief.
To this amended petition the defendants interposed an answer denying that the disputed area, "alley number one," was a public alley and stating: ". . . at irregular intervals and by various and irregular routes, various occupants of the land lying immediately east of said described land of the defendants have crossed said land of the defendants, but all of such use of the land has been permissive, and at no time has the public or any private individual used any fixed and definite way across the defendants' said land or under claim of right or under any claim adverse to the defendants or their predecessors in title to said land." The defendants also filed general and special demurrers, all of which were overruled. Upon trial the jury returned a verdict in favor of the plaintiffs, and subsequently the trial court denied the defendants' motion for judgment notwithstanding such verdict and their motion for new trial upon general and special grounds. Error is assigned upon the overruling of the defendants' demurrers, denial of their motions for judgment notwithstanding the verdict and for new trial; and error is also assigned specially on that portion of the final judgment which decreed that the area in question was a public alley and generally to the final judgment, which permanently enjoined the defendants from using the alley as a parking lot.
We will consider those assignments of error in the order recited above.
1. (a) The special demurrers, not having been insisted upon in this court, are thus abandoned.
(b) Having considered the allegations of this petition as against general demurrer we conclude that it effectively pleads a dedication of private property for public use and, therefore, sets forth a cause of action for the relief sought.
The allegations come within the terms of Code § 85-410, which declares: "If the owner of lands, either expressly or by his acts, *850 shall dedicate the same to public use, and the same shall be so used for such a length of time that the public accommodation or private rights might be materially affected by an interruption of the enjoyment, he may not afterwards appropriate it to private purposes."
In this connection, the amended petition alleged as follows:
"7. (a) For a period of at least forty years the general public has used the aforesaid alleys publicly, continuously, exclusively, uninterrupted, and peaceably, and without the permission of anyone, by riding over the same in buggies, motor vehicles of all descriptions. wagons, bicycles, and by walking over same. Plaintiff Mayor and Council of Wrightsville have used same during said period of time as an access to the rear of various store buildings, being the same buildings set out in paragraph 14 hereof [nine named business establishments], containing various types of businesses, for its trash and garbage trucks to collect trash and garbage put out the rear of said buildings.
"8. During said period of at least forty years plaintiff Mayor & Council of Wrightsville has, on numerous occasions and without the request of or permission of anyone, worked and repaired said alleys heretofore described in order to keep them fit for use by the general public. Said plaintiff has filled in holes in said alleys, surfaced them with clay, leveled them and done other acts to keep them fit for use by the general public.
"9. By reason of the aforesaid facts the alleys, being alleys No. One, Two and Three, have been and are public alleys."
The foregoing allegations follow a paragraph (6) which recites that the area in question, "alley number one," is the alley referred to in a covenant in a deed from B. B. Tanner to E. A. Lovett. That covenant provided that such alley "is not to be closed without the consent of both" Tanner and Lovett. The defendants are successors in title to Lovett.
The plaintiffs thus contend that this area in question, "alley number one," originated as a permissive private way across the property now owned by the defendants, but that it subsequently became a public alley.
The defendant take the position that because of this permissive origin no dedication as a public alley could then or *851 later come about. They contend that the reservation, by the parties to the 1912 deed, of the right to close the area prohibited any implied dedication. They also insist that such original permissive use prevented later acquisition of any right of user by prescription.
What Tanner and Lovett convenanted in their 1912 deed could not perpetuate the status quo of this area.
That covenant could not prohibit later dedication of the area to public use. Dedication of land to public use and the acceptance of such dedication may occur in different ways, one of which is by implication. "Intention to dedicate may be inferred from acquiescence by the owner in the use of his land by the public, if the use be of such character as to clearly indicate that the public accepted the dedication to the public use." City of LaFayette v. Walker County, 151 Ga. 786 (1) (198 SE 218). "And acceptance of property set aside by the owner to a public use will be implied where it is improved and maintained for such use by authorized public officials out of tax funds." Lowry v. Rosenfeld, 213 Ga. 60, 63 (96 SE2d 581). See also Hyde v. Chappell, 194 Ga. 536 (22 SE2d 313).
The facts of the instant case fit, in principle, those of Carlisle v. Wilson, 110 Ga. 860 (36 SE 54), in which this court, one Justice absent, held: "A passage-way connecting a city lot with a public street, although originally laid out as a private way, became a public street by the continuous use thereof by the public as such for thirty years, and by having been kept in repair and free from obstructions by the municipal authorities."
The allegations of the case at bar thus plead an implied dedication.
Prescriptive right to use of the area in dispute is also alleged by the plaintiffs. However, since under our ruling as to implied dedication, the petition was not subject to general demurrer, we do not need to decide whether the petition also pleaded a cause of action for prescription.
2, 3. Upon the trial plaintiffs' evidence supported their amended petition, while the evidence of the defendants supported their answer. Therefore, the evidence, while conflicting, was sufficient for the jury's consideration. Accordingly, it was *852 not error to deny the defendants' motion for judgment notwithstanding the verdict and motion for new trial based upon the general grounds.
4. We come now to the special grounds of plaintiffs' motion for new trial.
(a) Special ground 1 complaints that the following charge was erroneous and injurious: "I charge you that the right of a private way over another's land may arise from an expressed [sic] grant or from prescription by seven years uninterrupted use through improved land or twenty years use over wild land, or by implication of law when such is necessary for the enjoyment of the land granted by the same owner." The criticism made of this excerpt from the charge is threefold: that it was not applicable to the issues made by the pleadings and evidence; that it conflicted with another specified portion of the charge; and that it was confusing and misleading. With this criticism we do not agree.
The plaintiffs' petition and evidence show that they contended that the area in question, "alley number one," arose as a private way by virtue of the covenant in the deed above referred to and thereafter, by long use by the public and maintenance by the city, became a public alley by implied dedication. Thus, this excerpt explaining how a private way arises was proper.
This excerpt, quoted above, was not in conflict with another portion of the charge "the issue in this case is simply this, has the alleged alley in question, being alley number one only, been dedicated by the defendants or their predecessors in title to the City of Wrightsville for public purposes?" so as to confuse the jury as to the actual issue in the case. The former existence or non-existence of a private way at this particular location was a preliminary issue. The first excerpt refers to that preliminary issue. The latter excerpt refers to the final issue, whether the private way, if one did exist, became a public way. Therefore, rather than conflict, there is harmony between these two excerpts. The excerpt complained of was not confusing and misleading for any other reason assigned.
(b) Special ground 3 complains of a charge which substantially *853 recited the requirements for acquiring a private way, and urges the same basis of objection set forth in special ground 1. For the same reason stated in division 4 (a), immediately above, this ground has no merit.
(c) Special ground 2 complains that the excerpt, "the issue in this case is simply this, has the alleged alley in question, being alley No. 1 only, been dedicated by the defendants or their predecessors in title to the City of Wrightsville for public purposes?" was erroneous and injurious as not applicable to the issues made by the pleadings and evidence and also as constituting an expression of opinion as to what had been proved.
Since the object of the petition was to prohibit the closing of only the area designated as "alley number one," and since the defendants made no issue of right, title or ownership as to the areas labeled "alley number two" and "alley number three," this charge limiting the issue of dedication to the area specified as "alley number one" only was applicable and proper.
Furthermore, reference to this disputed area as "the alleged alley" and "alley number one" in no way expressed an opinion that it was a public alley. This is even more apparent by the court's instruction given near the end of the charge, "If after having heard all of the evidence in said case, both oral and documentary, and under the rules of law which I have given you in charge, if you determine that the plaintiffs in this case are entitled to recover in other words if you determine that the disputed area had been dedicated to the City of Wrightsville as a public alley, then the form of your verdict would be `We, the jury, find in favor of the plaintiffs.'"
(d) The fourth special ground of complaint relates to the following portion of the charge: "As stated, the petitioners contend that they acquired their original easement by virtue of a grant in a deed in 1912. In that connection I charge you that adverse possession of land under written evidence of title for seven years shall give a like title by prescription. But if such written title is forged or fraudulent and notice thereof is brought home to the claimant before or at the time of the commencement of his possession, no prescription shall be based thereon."
This charge is, in our view, subject to all three criticisms *854 made against it. It was a misstatement of the contentions of the parties, since the plaintiffs did not contend that they acquired their original easement by virtue of a grant in the 1912 deed. It was incorrect as a matter of law, confusing and misleading since elsewhere the court charged the jury that the issue in the case was whether "alley number one" had been dedicated by the defendants or their predecessors in title to the City of Wrightsville for public purposes, thus causing the jury to conclude that the issue was whether the covenant in the 1912 deed constituted a grant or dedication. This excerpt complained of was also incorrect as a matter of law in that the jury could have concluded therefrom that the 1912 deed constituted color of title under which seven years adverse possession would ripen into prescription, this being impossible because plaintiffs were not parties or privies to the deed and thus could not use it for color of title.
The jury may well have concluded that the 1912 deed constituted a grant and that, by virtue of it alone, this area became a public alley. This portion of the charge was not retracted or corrected elsewhere. We cannot say that this erroneous excerpt was not harmful to the defendants in view of the verdict in favor of the plaintiffs. Therefore, the giving of this portion of the charge was reversible error. The defendants' amended motion for new trial, one of the grounds of which complained of this portion of the charge, should, for this reason, have been granted.
(e) Special ground 5 complains of the following charge: "Now, under the allegations and contentions of the plaintiffs, the plaintiffs being the Mayor & Council of the City of Wrightsville, and others, and the allegations and the contentions of the defendants, being George East and Mrs. L. A. Lovett, the issue in this case is simply this . . . has the alleged alley in question, being alley number one only, been dedicated by the defendants or their predecessors in title to the City of Wrightsville for public purposes? The petitioners contend that said alley arose by virtue of an alleged grant for alley purposes in a deed executed in the year 1912 and that since [that time] there has arisen what is known as implied dedication to the City of *855 Wrightsville to said strip of land for alley purposes for the general public. I charge you that the plaintiffs, being the City of Wrightsville and others, can only recover based on one or more of their contentions set forth in their pleadings . . ." This excerpt was not erroneous. The reasoning given as to the portion of the charge complained of in division 4 (a) controls here also.
(f) Special ground 6 is that the court erred in charging the jury with reference to the consequences of an inadequate description in a deed. This charge was susceptible to the interpretation that the 1912 deed contained an inadequate description and therefore could not be relied upon by the plaintiffs as the origin of what they now contend is a public way. Therefore, this charge was more favorable to the defendants than to the plaintiffs and was not erroneous for any reason assigned.
(g) Special ground 7 involves the admission in evidence of the 1912 deed from Tanner to Lovett, with the provision against closing of the area now designated as "alley number one." The deed is contended to be irrelevant and immaterial. Also, it is urged as prejudicial in that it authorized the jury to conclude in plaintiffs' favor without evidence of closing by consent of the parties to such deed and for other stated reasons. Furthermore, it is urged that the deed's admission was confusing and misleading to the jury in that it became the basis for the court's charging the jury in enumerated particulars in relation to such deed, so as to convey to the jury that the deed constituted a grant or dedication of the alley for public purposes. The objections made to the admission of this deed must fail. It related to an issue which the plaintiffs had to carry, the location of the alley claimed to have been later dedicated, and was therefore relevant. The fact that the court erroneously charged with reference to it did not make the deed inadmissible.
5, 6. Having ruled upon the general and special grounds of the amended motion for new trial, we now consider the defendants' assignments of error made on that portion of the June 30, 1961, final judgment which decreed the area in question, "alley number one," to be a public alley, and also to that judgment in its entirety, as being contrary to law. This judgment followed *856 the erroneous charge to the jury, as embodied in special ground 4 of the defendants' motion for new trial, and is controlled by the ruling made in division 4 (d) of this opinion dealing with that special ground. Therefore, the judgment is subject to the attacks made upon it.
7. The judgment overruling the defendants' demurrers to the plaintiffs' amended petition and the judgment denying the defendants' motion for judgment notwithstanding the verdict are affirmed. The judgment denying the defendants' amended motion for new trial, for reasons set forth in division 4 (d) of this opinion, is reversed.
Judgment affirmed in part, reversed in part. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322375/ | 106 Ga. App. 305 (1962)
126 S.E.2d 887
BANKERS FIDELITY LIFE INSURANCE COMPANY
v.
OLIVER.
39536.
Court of Appeals of Georgia.
Decided June 13, 1962.
Rehearing Denied July 11, 1962.
*306 Sam F. Lowe, Jr., Smith, Field, Ringel, Martin & Carr, for plaintiff in error.
Hilton & Hilton, L. H. Hilton, contra.
Smith, Kilpatrick, Cody, Rogers & McClatchey, Devereaux F. McClatchey, for party at interest not party to record.
HALL, Judge.
1. When this case was previously before this court, it was decided on November 30, 1961, that the plaintiff's petition set out a cause of action under former Code § 56-519 for recovery of insurance premiums based on the agent's fraud in the procurement of the policy of insurance. Bankers Fidelity Life Ins. Co. v. Morgan, 104 Ga. App. 894, 899 (123 SE2d 433); Bankers Fidelity Life Ins. Co. v. Harrison, 104 Ga. App. 899 (123 SE2d 438); Bankers Fidelity Life Ins. Co. v. Oliver, 104 Ga. App. 902 (123 SE2d 440). Defendant's argument that there can be no recovery by the plaintiff under Code § 56-519 after the repeal of the statute, effective January 1, 1961, is without merit. This issue existed at the time of the former appeal; the statute had at that time been repealed. It is the law of the case by the previous decision that the plaintiff can recover as provided by that Code section. Lowe v. City of Atlanta, 194 Ga. 317, 318 (21 SE2d 171); Blackwell v. Southland Butane Gas Co., 95 Ga. App. 113 (97 SE2d 191); Langford v. Milhollin, 201 Ga. 594, 601, 602 (40 SE2d 376).
The third ground of the motion for judgment notwithstanding the verdict, that the written instruments accepted and signed by *307 the plaintiff show that the plaintiff knew and could not have been under any misapprehension as to what she was getting, was also adjudicated on the former appeal. Bankers Fidelity Life Ins. Co. v. Morgan, 104 Ga. App. 894, 896, 899, supra.
The second ground of the motion for judgment notwithstanding the verdict is: The evidence fails to show that the defendant's agents were authorized to make the alleged misrepresentation, and the defendant could not be liable therefor; but on the contrary the evidence shows that the agents were employed by the defendant under a written agreement only, which specifically provided that the agents had no authority to alter the terms of the company's policies, and that the agent shall not do any illegal act or violate any state insurance law. On the former appeal this court held that the purpose of former Code § 56-519 was to make the insurance companies directly liable for statements of their agents declared therein to be unlawful. "The company cannot, merely by inserting in its contract a provision that it is not to be bound by the acts of such agents, relieve itself from the effect of the law, ... The petition set out a cause of action for recovery of premiums based on the agent's fraud in the procurement of the policy of insurance. . ." (Emphasis supplied).
2. The plaintiff's own testimony is sufficient to authorize a finding that the defendant's agents made "false representations as to the form, nature, and character of the policy" sold to plaintiff, which is the essence of plaintiff's cause of action. Whether or not there was proof of the specific representation alleged by plaintiff, that after two years plaintiff could withdraw all sums deposited by her with interest, the evidence authorized a recovery by plaintiff for premiums paid. The first ground of defendant's motion for judgment notwithstanding the verdict, that the evidence did not prove the case presented in plaintiff's petition, and the general grounds of the motion for new trial are without merit.
3. The question whether the plaintiff can recover attorney's fees is raised by several of the assignments of error. Unless the recovery of attorney's fees is expressly authorized by a special statutory provision, the cases in which they can be recovered *308 in this State are those within the meaning of Code § 20-1404, which provides: "The expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them." The damages allowed under this Code section are compensatory, not punitive or vindictive. Bowman v. Poole, 212 Ga. 261 (91 SE2d 770).
While on the former appeal this court stated in its opinion that Code § 56-519 "provides a statutory remedy by imposing a statutory penalty" (Bankers Fidelity Life Ins. Co. v. Morgan, 104 Ga. App. 894, 897, supra), the action is in reality a "statutory liability" and not a "penalty" since it creates a liability in favor of individuals instead of for the public generally. Neal v. Moultrie, 12 Ga. 104, 113; John V. Farwell Co. v. Jackson Stores, 137 Ga. 174 (3) (73 SE 13); Ham v. Robinson Co., 146 Ga. 442, 446-447 (91 SE 483). Attorney's fees are not recoverable against a defendant in a suit based upon a "statutory liability." John V. Farwell Co. v. Jackson Stores, supra, p. 176.
The plaintiff argues that by the former decision it is the law of the case that attorney's fees are recoverable, and that Code § 24-3362 (Rule 62 of the Superior Courts) precludes consideration of this question at this stage of the case. This rule provides that, "After a decision upon one or more grounds [of a motion, objection or exception], no others afterwards urged shall be heard by the court." The decision on the general demurrer, as we have stated in Division 1, is the law of the case only as to any grounds that could have been raised against the sufficiency of the petition as a whole to state a cause of action for relief of any kind. The defendant's motion to strike plaintiff's allegations and prayers respecting attorney's fees did not go to the sufficiency of the petition as a whole to state a cause of action for relief of any kind.
The trial court erred in overruling defendant's motion to strike plaintiff's allegations and prayers and in allowing plaintiff's amendment respecting attorney's fees, in overruling grounds 2 and 4 of the motion for new trial, and in overruling the fifth ground of the motion for judgment notwithstanding the verdict. *309 A decision on the fourth ground of the motion for judgment notwithstanding the verdict therefore becomes unnecessary.
4. Special ground 3 of the motion for new trial complains of an instruction to the jury permitting them to award interest on the premiums paid by the plaintiff, on the ground that Code § 56-519 does not provide for interest. On the former appeal this court held that the petition set out "a cause of action for recovery of premiums based on the agent's fraud in the procurement of the policy of insurance. . ." Bankers Fidelity Life Ins. Co. v. Morgan, 104 Ga. App. 894, 899, supra. The plaintiff is entitled to interest from the time the "statutory liability" accrued which was the date the premiums were paid. Burns v. Beck, 83 Ga. 471 (6), 495-496 (10 SE 121).
5. Special ground 1 of the motion for new trial complains of the refusal of the trial court to strike from the record, on the ground of irrelevancy, the testimony of two witnesses, to whom the defendant's agents, according to the witnesses' testimony, had made representations like those the plaintiff alleges the same agents made to her; and the testimony of a third witness, the school principal, to the effect that the agents offered him some stock in the company if he would recommend their profit-sharing plan.
The defendant argues that the question of intent is not involved in the violation of Code § 56-519. The former opinion states: "The petition set out a cause of action for recovery of premiums based on the agent's fraud in the procurement of the policy of insurance. . ." The court discussed what constitutes "fraudulent or false representations" within the statute. It did not exclude motive and intent as an element of the unlawful act, even if proof of intent is not necessary. Hence the following cases are authority for the admission of the testimony complained of. Tapley v. Youmans, 95 Ga. App. 161, 175 (97 SE2d 365); Deckner-Willingham Lmbr. Co. v. Turner, 171 Ga. 240, 244 (155 SE 1); Terry v. Fickett, 199 Ga. 30, 38 (33 SE2d 163).
The trial court did not err in overruling special ground 1.
Judgment affirmed on condition that the defendant in error write off from said judgment the sum of $750 awarded as attorney's *310 fees within ten (10) days from the date the remittitur of this court is made the judgment of the trial court; otherwise reversed. Bell, J., concurs. Felton, C. J., concurs specially.
FELTON, Chief Judge, concurring specially. I do not concur in the ruling of the majority to the effect that an action under Ga. L. 1912, pp. 119, 124 (the act from which former Code § 56-519 was copied) is not for a tort; nor do I agree that this court so held in Bankers Fidelity Life Ins. Co. v. Morgan, 104 Ga. App. 894, supra; nor do I agree that the case of John V. Farwell Co. v. Jackson Stores, 137 Ga. 174, supra, holds that a judgment for attorney's fees may not be recovered in a suit for a statutory liability because of bad faith and litigiousness. In that case no attorney's fees were sought for bad faith or litigiousness but were sought on another ground. I think that the repealed law created a duty the breach of which was a tort under Code § 105-101.
However, I concur in the judgment as to attorney's fees because in my opinion there was no evidence to authorize a finding of bad faith or litigiousness. There is no evidence which tends to show that the insurance company in bad faith contended that its agents were not guilty of the improper conduct charged against them.
ON MOTION FOR REHEARING.
HALL, Judge. In her motion for rehearing the plaintiff attacks the decision that the basis of an action under Code § 56-519 is a statutory liability or penalty. The plaintiff cites Life &c. Ins. Co. of Tenn. v. Walker, 62 Ga. App. 819 (10 SE2d 124), in which this court held that the plaintiff's cause of action under Code § 56-519, if any, was barred by the statute of limitation, because the facts alleged did not show that the misrepresentations by the defendant's agents prevented the plaintiff from discovering, when the policies were delivered to her or within a reasonable time thereafter, that she had been sold insurance policies different in terms from those represented by the defendant's agents as being sold to her. The court held that an action for fraudulent inducement to enter into a contract must be brought within four years from the time the fraud is or should have been discovered. Concerning the nature of the cause of *311 action there is an apparent inconsistency of logic between that case and the former decision in the present case. The 20-year statute of limitation is clearly applicable to a statutory liability or penalty. Code Ann. § 3-704. It is the law of this case by the former decision that the plaintiff's cause of action was upon a statutory liability or penalty imposed by Code § 56-519, and the court did not hold that the plaintiff had any other right to recover for fraud. Were the question of the statute of limitation directly involved in the present case, we would not likely follow the case of Life &c. Ins. Co. of Tenn. v. Walker, 62 Ga. App. 819, supra, as we construe Code § 56-519 to impose a statutory liability. But what is said in the former opinion in this case concerning the statute of limitation is, of course, dictum.
The defendant has made a motion to assess costs against plaintiff. Since the provision in the decision for writing off from the judgment the sum awarded as attorney's fees will amount to a substantial modification of the judgment in the trial court, the costs of bringing the case to this court are taxed against the plaintiff (defendant in error). Shaheen v. Kiker, 105 Ga. App. 692 (125 SE2d 541, 545).
Rehearing denied. Bell, J., concurs. Felton, C. J., concurs specially. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322377/ | 370 S.C. 221 (2006)
634 S.E.2d 59
TOWN OF HILTON HEAD ISLAND, Appellant,
v.
Montgomery GODWIN, Respondent.
No. 4131.
Court of Appeals of South Carolina.
Submitted June 1, 2006.
Decided July 3, 2006.
Rehearing Denied August 25, 2006.
*222 Marshall H. Waldron, Jr., of Bluffton, for Appellant.
Montgomery Godwin, pro se, of Bluffton, for Respondent.
HEARN, C.J.
In this action, the Town of Hilton Head Island (the Town) appeals the order of the circuit court denying its motion to dismiss and granting a new trial in favor of Montgomery Godwin. We vacate.[1]
FACTS
In July 1995, Godwin received a citation charging him with criminal domestic violence. The uniform traffic ticket set a trial date for August 8, 1995. When Godwin failed to appear, the Hilton Head Island municipal court found him guilty, in absentia; assessed a $304 fine; and issued a bench warrant for his arrest.[2] Godwin neither appealed the conviction nor took any other action to set aside the conviction. On September 29, 1995, police arrested Godwin in connection with three outstanding arrest warrants, including the warrant issued following his CDV conviction. That same day, Godwin, or someone on his behalf, paid the $304 fine in connection with the CDV conviction to obtain his release from custody. Again, Godwin took no action related to the conviction.
*223 On August 11, 2003, Godwin applied for a gun permit pursuant to an employment opportunity. A subsequent SLED investigation revealed the 1995 CDV conviction on his record. Then, on March 26, 2004, approximately eight years after the CDV conviction, Godwin sent a letter to the Hilton Head Island Municipal Court, which the court treated as a motion to set aside the conviction and/or a motion for a new trial. At the hearing before municipal court Judge James Herring, Godwin claimed the first notice he received of the CDV conviction was on August 11, 2003, and that the Town committed several procedural and clerical errors relating to his conviction for CDV that warranted his conviction be set aside or a new trial granted. The Town argued the municipal court lacked the jurisdiction to entertain Godwin's motion because the motion was untimely. The municipal court agreed and denied the motion, finding Godwin's actions were untimely.
Godwin appealed the municipal court's order to the circuit court. The Town filed a motion to dismiss, arguing the circuit court and the municipal court lacked jurisdiction to hear Godwin's motion. At the motion hearing, Godwin again argued he did not receive notice of his 1995 CDV conviction until August 11, 2003, and that he discovered many procedural and clerical errors that warranted his conviction be set aside or a new trial granted. The circuit court agreed with Godwin, denied the motion to dismiss, and granted a new trial based on "substantial justice." The Town's motion to reconsider was denied, and this appeal followed.
STANDARD OF REVIEW
The appellate court must always take notice of the lack of subject matter jurisdiction. Amisub of S.C., Inc. v. Passmore, 316 S.C. 112, 114, 447 S.E.2d 207, 208 (1994). The lack of subject matter jurisdiction can be raised at any time, can be raised for the first time on appeal, and can be raised sua sponte by the court. See, e.g., Lake v. Reeder Constr. Co., 330 S.C. 242, 248, 498 S.E.2d 650, 653 (Ct.App.1998) (holding issues related to subject matter jurisdiction may be raised at any time). "The acts of a court with respect to a matter as to which it has no jurisdiction are void." State v. Guthrie, 352 S.C. 103, 107, 572 S.E.2d 309, 311-12 (Ct.App.2002).
*224 LAW/ANALYSIS
The Town argues the circuit court erred in denying its motion to dismiss and in granting Godwin's motion for a new trial. Specifically, the Town argues the circuit court lacked the jurisdiction necessary to entertain Godwin's motion. We agree.
Rule 29(a) of the South Carolina Rules of Criminal Procedure governs post trial motions from a conviction in magistrate's court and states, in part:
In cases involving appeals from convictions in magistrate's or municipal court, post trial motions shall be made within ten (10) days after receipt of written notice of entry of the order or judgment disposing of the appeal.
Furthermore, the supreme court has noted that "a party's time to appeal from a judgment in a magistrate's court or move for a new trial therein . . . begin[s] [when] he has notice of the judgment." State v. Martin, 352 S.C. 32, 33, 572 S.E.2d 287, 288 (2002) (citing Brewer v. South Carolina State Highway Dep't, 261 S.C. 52, 56, 198 S.E.2d 256, 257 (1973)). A party who fails to timely appeal or take any other timely action necessary to correct an error is procedurally barred from contesting the validity of the conviction. Martin, 352 S.C. at 33, 572 S.E.2d at 288.
Martin is analogous to the present case. Because of a series of administrative errors, Martin was notified in December 1997, that she had been convicted, in absentia, of driving under the influence on August 26, 1997. Martin, 352 S.C. at 33, 572 S.E.2d at 287. A bench warrant was issued for Martin's arrest, and she paid the fine assessed by the municipal court. Id. Shortly thereafter, Martin notified the State, via her attorney, of the disposition of the ticket. Id. at 33, 572 S.E.2d at 288. The State took no action at that time. Nearly six months later, in June 1998, the State sought to reopen the case on the ground that the traffic ticket had been "signed off" in error. Id. The circuit court ruled the State's efforts to set aside the conviction were untimely. Id. The supreme court agreed, finding the state took no action between December 1997 and June 1998 to rectify the situation or to notify Martin that her conviction had been erroneously entered. The court, relying on Rule 29, SCRCrimP, held the State's "failure to *225 take any remedial action to remedy this situation in a timely manner therefore precluded its ability to challenge the entry of a conviction on the DUI first ticket." Id. at 34, 572 S.E.2d at 288.
In this matter, Godwin had notice of his 1995 CDV conviction no later than September 29, 1995, when he was arrested under the bench warrant and his release was secured by payment of the fine imposed by the municipal court after the 1995 conviction. Under Rule 29, SCRCrimP, Godwin had until October 9, 1995 to file any post trial motions or his notice of appeal. Godwin failed to take any remedial actions at that time. His motion to set aside the 1995 conviction came in March 2004, approximately eight years after he received notice of the conviction. Similar to the State's inaction in Martin, Godwin's inaction precludes his ability to challenge the 1995 conviction. Therefore, the municipal court correctly held Godwin's challenge to his conviction was untimely, and the circuit court erred in failing to grant the Town's motion to dismiss for lack of jurisdiction.
Assuming, arguendo, notice was not received until August 11, 2003, the date Godwin admitted he received notice of the 1995 conviction, his motion would still be untimely. Godwin took no action from August 11, 2003 until his letter to the municipal court on March 26, 2004, some seven months from the date he claimed he received notice of the conviction. Accordingly, as Godwin concedes he had actual notice of the 1995 conviction on August 11, 2003, and he failed to timely appeal or take any other action to correct the matter, he is now procedurally barred from contesting the validity of the 1995 conviction.
CONCLUSION
Based on the foregoing, the order of the circuit court is hereby
VACATED.
GOOLSBY and ANDERSON, JJ., concur.
NOTES
[1] We decide this case without oral argument pursuant to Rule 215, SCACR.
[2] Godwin agreed that the municipal court found him guilty, in absentia, but he denied receiving notice until August 11, 2003. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261591/ | 428 A.2d 423 (1981)
Ramona COATES
v.
MAINE EMPLOYMENT SECURITY COMMISSION.
Supreme Judicial Court of Maine.
Argued March 9, 1981.
Decided April 22, 1981.
*424 Sunenblick, Fontaine & Reben, Donald F. Fontaine (orally), Asen & Landis, Michael Asen, Peter Landis, Sewall, Mittel & Hefferan, Robert E. Mittel, Portland, for plaintiff.
Susan P. Herman (orally), Asst. Atty. Gen., Augusta, for defendant.
Before McKUSICK, C. J., and GODFREY, NICHOLS, GLASSMAN, ROBERTS and CARTER, JJ.
McKUSICK, Chief Justice.
Defendant Maine Employment Security Commission appeals from a decision of the Superior Court (Kennebec County) awarding attorney's fees to counsel for plaintiff Ramona Coates in connection with her earlier successful appeal to this court from a Commission decision that had disqualified her from receiving unemployment compensation. The Superior Court order awarded plaintiff's counsel an "additional contingency fee" in the amount of 25% of the total fee the Commission had already approved for his services in representing plaintiff on that prior Law Court appeal. Plaintiff cross-appeals from the order, asserting that the Superior Court erred in failing to allow her counsel also a fee for his work before the Superior Court in seeking the additional contingency fee award. Because we conclude that the Superior Court lacks jurisdiction to award counsel fees in unemployment compensation litigation, we sustain the Commission's appeal, order dismissal of the Superior Court proceeding, and dismiss the cross-appeal.
The first time this case was before the Law Court, we sustained plaintiff's appeal from adverse determinations at both the Commission and Superior Court levels regarding her eligibility for unemployment compensation. Coates v. Maine Employment Security Commission, Me., 406 A.2d 94 (1979) (Coates I).[1] Our mandate on that earlier appeal read as follows:
Appeal sustained.
Remanded to the Superior Court for vacation of the judgment appealed from and for entry of judgment (i) sustaining claimant's appeal from the Maine Employment Security Commission, (ii) reversing the Commission's decision, and (iii) remanding to the Commission with direction to allow unemployment benefits to claimant in the amount of $700.
*425 Costs on appeal allowed to claimant.
Id. at 97. The Superior Court judgment entered on remand in October 1979 likewise stated in part: "Costs on appeal awarded to claimant."
Following certification of the Law Court opinion in Coates I and prior to entry of the new Superior Court judgment conforming to the Law Court mandate, plaintiff's counsel wrote to the Commission, presenting a bill in the amount of $3,496 for the work done on the successful appeal to the Law Court.[2] Of the billed amount, $160 represented reimbursement for his out-of-pocket expenses on appeal. The remaining $3,336 was for services rendered. In arriving at the latter figure, counsel had first multiplied the 41.7 billable hours he had spent working on the appeal by his standard hourly rate of $40, for a base fee of $1,668. To that he added a "contingency factor" of 100%. His avowed purpose in adding the contingency factor was to reflect the fact, resulting from his agreement with his client that she would in no event be responsible for any of his fees, that he would not have been paid for his work had his client not prevailed on appeal.
Sometime between October 1979 and April 1980, plaintiff's counsel received payment of $1,828, an amount that covered his out-of-pocket expenses and his requested base fee at $40 per hour, but excluded any contingency fee. On April 1, 1980, the chairman of the Commission wrote counsel that:
The Commission met on March 31, 1980, and discussed the matter of contingency fees in the above case.
By majority decision, it was decided that further fees would not be granted beyond the $1828 already paid, as we feel that this was a reasonable amount within the meaning of Section 1044.2 of the Law.
On May 19, 1980, plaintiff filed a motion in the Superior Court, purportedly pursuant to M.R.Civ.P. 54, requesting the court to order the Commission to pay her counsel both his requested contingency fee of $1,668 and also a reasonable attorney's fee for the preparation and presentation of the motion itself in the Superior Court. Following a hearing, the Superior Court ordered payment of a contingency fee in the amount of 25% of that requested, or $417. The Superior Court's order made no mention of plaintiff's request for a fee for preparation and presentation of the Superior Court motion.
On appeal, the Commission argues that 26 M.R.S.A. § 1044(2) (Supp.1980) vests exclusive authority in it to approve counsel fees for legal services on any unemployment compensation appeal and that the Superior Court accordingly had no jurisdiction to award plaintiff's counsel a contingency fee.[3] The plain statutory language compels us to agree. We hold that the Maine Employment Security Commission alone has authority to approve the attorney's fees payable to a claimant's counsel on a successful court appeal from the Commission's denial of unemployment benefits. The only involvement of the Superior Court is to review the Commission's adjudication as to those fees, under the restricted standards laid down by the Administrative Procedure Act.[4]
*426 The controlling statute, 26 M.R.S.A. § 1044(2), provides in pertinent part:
Any individual claiming benefits in any proceeding before the commission or a court may be represented by counsel or other duly authorized agent; but no such counsel or agents shall either charge or receive for such services more than an amount approved by the commission. In the event a claimant has retained counsel for the purpose of prosecuting an appeal from a decision of the commission, and the final decision of such court results in a reversal, in whole or in part, of the decision appealed from, the fees for such service shall be paid by the commissioner from his administrative fund.
(Emphasis added). By the language of the statute itself, the legislature clearly declared that the Commission's approval is a sine qua non for the award of counsel fees in any Commission or court proceeding involving a claim for unemployment benefits. The very same section 1044(2) that lays down that requirement of Commission approval of all attorney's fees also is the statute upon which plaintiff as a successful appellant must rely to justify getting her counsel fees paid by the Commissioner of Manpower Affairs.[5] Reading section 1044(2) in accordance with its plain meaning, see Chase v. Edgar, Me., 259 A.2d 30, 32 (1969), we can only conclude that the legislature has vested one agency, namely, the Commission, with exclusive responsibility for fixing any fees to be paid a claimant's attorney in connection with a successful unemployment compensation appeal. There is no reason or necessity to infer that a court, though not mentioned by the legislature, also may approve attorney's fee awards.
Contrary to plaintiff's argument, there is nothing anomalous or absurd in the legislature's placing in the Commission the responsibility for setting the fee to be paid the attorney for a claimant who prevails over the Commission on a court appeal. The Commission, whose decisions are always subject to judicial review under the Administrative Procedure Act, is the statutorily designated body to adjudicate both the underlying unemployment compensation claim and the fee to be paid attorneys for claimants who successfully appeal to court. In either instance, the Commission adjudicates a question of the liability of the Department of Manpower Affairs to a benefits claimant or his attorney. Rather than being anomalous or absurd, centralizing in the Commission the responsibility for adjudicating in the first instance both unemployment claims and attorney's fees permits the development of consistent policies by a single specialized administrative agency, always subject to ultimate review by the Law Court.
Plaintiff also must fail in her contention that the Superior Court in awarding her counsel a 25% contingency fee was merely following this court's mandate in Coates I, in which we allowed plaintiff her costs on *427 appeal. In making that argument, plaintiff relies on this court's decision and mandate in Thiboutot v. State, Me., 405 A.2d 230 (1979), aff'd, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). In Thiboutot, this court did require the Superior Court to consider on remand, as part of its assessment of costs in the case, the prevailing parties' petition for the award of counsel fees. There, however, the court was acting pursuant to the federal Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988, which specifically provides that in an action under certain civil rights acts, including 42 U.S.C. § 1983, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." (Emphasis added) Section 1044(2) of Maine's unemployment compensation law is conspicuously different; it does not make attorney's fees part of costs. Nor does the term "costs" as commonly used in rules of civil procedure encompass without more attorney's fees of the successful litigant. See C. Wright & A. Miller, 10 Federal Practice & Procedure § 2675 at 179-80 (1973 & Supp.1980).
This court's mandate in Coates I cannot be read to have allowed attorney's fees as part of costs, for the simple reason that this court has no authority under the controlling section 1044(2) to approve attorney's fees itself or to authorize the Superior Court to do so. A court cannot take to itself the power of approving and awarding counsel fees, a power clearly given by the legislature only to the Commission, merely by labelling those fees as "costs." It is equally obvious that M.R.Civ.P. 54(d), entitled "Allowance of Costs," under which plaintiff purported to file her motion for counsel fees in the Superior Court, does not independently give that court any authority to award counsel fees. See M.R.Civ.P. 82. The legislature has mandated that "no such counsel [`in any proceeding before the [C]ommission or a court'] . . . shall either charge or receive for such services more than an amount approved by the [C]ommission."
As a last resort, plaintiff argues that her Superior Court "Motion to Assess Amount of Attorney's Fees" should be treated as an appeal under the Administrative Procedure Act from the Commission's disallowance of any contingency fee to her attorney. That argument must also fail. Even assuming that the Commission chairman's letter of April 1, 1980, constituted "final agency action" that was ripe for judicial review, a matter we do not decide, plaintiff's "appeal" was in any event untimely since it was filed beyond the 30-day appeal period prescribed by the Administrative Procedure Act, 5 M.R.S.A. § 11002(3). Failure timely to seek judicial review of agency action is a jurisdictional defect that this court may not excuse. Partnership of Brooks Brown et al. v. State Dept. of Manpower Affairs, 426 A.2d 880, 887 (1981); cf. Torrey v. Full Gospel Church, Me., 394 A.2d 276, 278 (1978).
Plaintiff's cross-appeal seeks review of the Superior Court's failure to award attorney's fee on her motion in that court. Since the proceeding in the Superior Court is being dismissed because of that court's want of jurisdiction to award attorney's fees in unemployment compensation matters, plaintiff's cross-appeal must also be dismissed.
The entry must be:
Appeal by defendant Maine Employment Security Commission sustained.
Judgment of the Superior Court vacated. Case remanded to the Superior Court for dismissal of plaintiff's motion for attorney's fees for lack of subject matter jurisdiction.
Plaintiff's cross-appeal dismissed.
Costs on appeal allowed to neither party.
All concurring.
NOTES
[1] The full history of the case at bar up to the time of our first decision is set out in the opinion in Coates I.
[2] Attorney's fees for representing plaintiff before the Commission and the Superior Court in Coates I are not at issue here.
[3] The Commission contests the Superior Court's jurisdiction for the first time before the Law Court. As we have stated many times, lack of jurisdiction may be raised by a party or by the court itself at any stage of a proceeding, including on appeal. See Fletcher v. Feeney, Me., 400 A.2d 1084, 1089 (1979).
[4] The Commission's fixing of an attorney's fee for services rendered on a claimant's successful appeal to the courts is an adjudicatory function. As such, the Commission fee-setting proceeding is subject to all the provisions of the Administrative Procedure Act, 5 M.R.S.A. § 9051 et seq., including the provisions requiring that the administrative litigant be given an opportunity to be heard, id. § 9056, and that he or she be properly notified of final agency action and of the right of any aggrieved party to appeal, id. § 9061.
The Superior Court may consider fee awards in unemployment compensation cases only in the context of reviewing final agency action by the Commission, see 5 M.R.S.A. § 11001(1) (Supp.1980); cf. Partnership of Brooks Brown et al. v. State Dept. of Manpower Affairs, Me., 426 A.2d 880, 883 (1981), and only when that court's appellate jurisdiction is properly invoked under the appeals provision of the Administrative Procedure Act, 5 M.R.S.A. § 11002 (1979). In order to allow for fully effective judicial oversight of its actions, the Commission, like the trial courts in fee award proceedings under federal statutes providing that attorney's fees shall be taxed as costs to the prevailing party, should take care to develop a record that contains support for its action, cf. King v. Greenblatt, 560 F.2d 1024, 1027 (1st Cir. 1977) [fee award under 42 U.S.C. § 1988 (1976)] and should make "clear and adequate findings of fact on [that] record" with respect to both the hours of service provided and the hourly rate at which the service should be billed, Northcross v. Board of Educ. of Memphis City Schools, 611 F.2d 624, 636, 636-39 (6th Cir. 1979) (fee award under 42 U.S.C. § 1988). In reviewing any award of attorney's fees by the Commission, the Superior Court should examine the record of the proceedings before the Commission for errors of law as defined in 5 M.R.S.A. § 11007(4)(C) (1979).
[5] By P.L.1980, ch. 651, § 6, the legislature amended section 1044(2) to provide for payment of legal fees by the Commissioner of Manpower Affairs from his administrative fund. 26 M.R.S.A. § 1044(2) (Supp.1980); see also id. §§ 1043(7-A), 1111. Prior to the 1980 legislation, section 1044(2) provided for payment of legal fees by the Commission from its administrative fund. 26 M.R.S.A. § 1044(2) (Supp.1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261592/ | 111 Cal.Rptr.2d 296 (2001)
91 Cal.App.4th 1128
Robert J. PRATA, Petitioner,
v.
The SUPERIOR COURT of Los Angeles County, Respondent;
Bank One, NA, Real Party in Interest.
No. B146295.
Court of Appeal, Second District, Division Four.
August 27, 2001.
*298 Patricio T.D. Barrera, Los Angeles, for Petitioner.
Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Herschel T. Elkins, Assistant Attorney General, Ronald Reiter and Joseph Ragazzo, Deputy Attorneys General for the State of California as Amicus Curiae on behalf of Petitioner.
No appearance for Respondent.
Morrison & Foerster, Robert S. Stern, John Sobieski and Camilo Echavarria, Los Angeles, for Real Party in Interest.
*297 EPSTEIN, J.
The principal issue in this writ proceeding is whether the trial court erred in granting real party in interest summary adjudication, terminating a cause of action brought under the unfair competition law (UCL).[1] The cause of action asserts that a bank was responsible for false and misleading advertising in promoting a credit program as "Same-As-Cash" when it was not. The trial court granted summary adjudication because it concluded this cause of action was not suitable as a representative action. The court reasoned that since there were many separate advertisements for the program in question, which was *299 marketed in California through hundreds of merchants, it would have to hear evidence about thousands of transactions in order to rule on the merits.
Petitioner and amicus curiae, the Attorney General of California, argue that no such individualized inquiry is required in order to find a violation of section 17200. We agree with this position, and conclude that the trial court abused its discretion in ruling that the action should not be brought as a representative action under the UCL. For this and other reasons, which we shall discuss, we grant the petition for writ of mandate.
FACTUAL AND PROCEDURAL SUMMARY
Petitioner Robert J. Prata claims that a credit card financing plan marketed and advertised by real party in interest Bank One, NA (Bank One), which promised "Same-As-Cash" financing for consumer purchases, violates the UCL. In October 1997, petitioner purchased stereo equipment, with installation, from a retail store in Los Angeles County. The store representative told him about a special promotion offered by Bank One. This program was described as one in which the borrower was required to make "NO payments for 90-days! Same-as-Cash!" Based on an ad in the store and statements of the store representative, petitioner bought the equipment on the 90-day "Same-As-Cash" credit plan and applied for a credit card offered by Bank One. Petitioner understood that he would incur no finance charges or interest if he paid the full amount of the purchase before the end of the 90 day period. He did not receive any documents describing the details of the plan at the time of purchase, or later in the mail.
In fact, the "Same-As-Cash" program required two monthly payments during the 90-day period. If either payment was not made by the time and in the amount required, interest was charged from that point forward, and a fee was imposed. If both payments were made in full at the times specified, and the full debt was discharged by the end of the 90 days, there were no charges (except that Bank One had the use of the money received in the two periodic payments). In the ad seen by petitioner, and in at least two others, the borrower was directed to "ask for details." The detailed provisions of the transactionthe fine printwere in program documents given or available to the borrower.
It is undisputed that Bank One advertised its "Same-As-Cash" program in California, using 19 different advertisements. It also is undisputed that three of these advertisements (including the one seen by petitioner) did not advise the consumer that minimum monthly payments would be required. Instead, these three advertisements offered various terms (3, 6, or 12 months) on a "Same-As-Cash" basis and stated that the consumer should ask for details. The ad seen by petitioner stated: "Instant Credit for our preferred customers [¶] 90 days same as cash* [¶] *Ask for details TODAY!"
Petitioner paid the full purchase price within 90 days. Despite this, Bank One billed him for interest and fees because he had not made the two minimum monthly payments during the same-as-cash 90-day period. Petitioner disputed these charges and Bank One reported him to third party collection agencies.
Petitioner filed his original complaint in June 1999. The second amended complaint, the charging pleading, is brought under section 17204 on behalf of petitioner and "all other consumers similarly situated within the general public." Petitioner alleges causes of action for fraud, breach of *300 contract, breach of the implied covenant of good faith and fair dealing, violation of the UCL, and defamation.
Bank One moved for summary adjudication of issues on the fourth cause of action, which is based on the UCL. It argued that petitioner was an inadequate representative to bring a representative action under the UCL because his experience with the "Same-As-Cash" program was not typical, and because individual issues of proof predominated on the claim for restitution. Petitioner opposed the motion, arguing that he was a proper plaintiff in a representative action under the UCL.
A sales guide provided to some California merchants who offered the "Same-As-Cash" program was inconsistent on the subject of minimum monthly payments.[2] The guide had a section on answering common questions likely to be posed by consumers considering the program. One example given reads: "Customer: `How does the 90-Days Same-As-Cash program work?' [¶] Response: `You are not required to make the minimum monthly payments for the first two months and if you pay off your purchase by the due date shown on your third statement after your purchase, you will not have to pay any interest.'"
Bank One responds that other pages in the same sales guide discuss low monthly payments under the 90-days "Same-As-Cash" program and provide a table for calculating minimum monthly payments. Bank One cites the sales guide, which states: "PLAN 3-SAC [Same-As-Cash] Monthly Payments, Interest Deferred. No finance charge for term selected if balance paid during the deferred period. Payments: 3% or $10, whichever is greater." But this paragraph is preceded by another which describes "PLAN 2-NP/ID. No Monthly Payment, Interest Deferred. Interest accrues from date of transaction, if balance is not paid during deferred period."
While these may have been separate credit programs, the language of the manual is, at best, inconsistent, confusing, and potentially misleading. Thus Patrick Kelly, who had been a manager in the cardholder operations division for Bank One, submitted a declaration in support of the summary adjudication motion in which he said: "This question should have read: `How does the No Payment Deferred Interest program work?' The fact that it stated `same as cash' instead of `No Payment Deferred Interest' was a mistake. Bank One did not intend to mislead merchants or consumers about the terms of the `same as cash' finance plan." Mr. Kelly added that he had not heard from any merchant who was misled or confused about whether the "Same-As-Cash" plan required monthly minimum payments.
In its ruling granting summary adjudication the trial court said: "In the case [at] bench, plaintiff is seeking to bring a representative action against defendant for unfair competition pursuant to Business and Professions Code section 17200 et seq. based upon its use and implementation of the `same as cash' plan. The evidence further discloses that defendant uses nineteen separate advertisements for the `same as cash' plan in this state and uses many merchants throughout this state. However, plaintiff alleges he was the victim of a misrepresentation based upon a specific advertisement and false statements made to him by an employee of the store where he purchased stereo equipment. The false *301 statements are an integral part of the contention in the complaint and would require this court to hear evidence about different merchants in different locales under different advertisements. In Kraus v. Trinity Management Services Inc.[, supra,] 23 Cal.4th 116, 138, [96 Cal.Rptr.2d 485, 999 P.2d 718], the Court stated that a 17200 action is an action in equity and the trial court may decline to hear a representative action if the plaintiff is not a proper plaintiff. Here, the court would have to hear evidence about hundreds of transactions before it could issue a ruling. This is hardly the speedy procedure envisioned by the Legislature. The motion for summary adjudication as to the 4th cause of action is granted."
Petitioner sought a writ of mandate from this court. We issued an alternative writ. The Attorney General has filed a brief as amicus curiae, as authorized by section 17209. In it he supports writ relief by this court. Bank One has filed a responding letter brief.
DISCUSSION
I
The first issue is the appropriate standard of review. Petitioner and Bank One each argue that we must review the trial court's ruling for abuse of discretion. Amicus argues the proper standard is de novo review.
Amicus is correct that the general rule for review of a ruling on a motion for summary judgment or summary adjudication is de novo review. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60, 65 Cal.Rptr.2d 366, 939 P.2d 766.) But "in the limited and exceptional circumstances where a trial court is required to exercise its discretion in passing on a Code of Civil Procedure section 437c motion for summary judgment, and grants or denies such a motion on the basis of its equitable determination of a question as to which the exercise of judicial discretion is proper, the standard of review on appeal necessarily is whether the trial court's decision amounted to an abuse of discretion. [Citations.]" (Centennial Ins. Co. v. United States Fire Ins. Co. (2001) 88 Cal.App.4th 105, 111, 105 Cal.Rptr.2d 559; Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 212, fn. 3, 285 Cal.Rptr. 717.)
The claim that the UCL cause of action is not a proper representative action under that statute calls for an equitable determination, for which exercise of judicial discretion is proper. "[B]ecause a UCL action is one in equity, in any case in which a defendant can demonstrate a potential for harm or show that the action is not one brought by a competent plaintiff for the benefit of injured parties, the court may decline to entertain the action as a representative suit. [Citation.]" (Kraus v. Trinity Management Services, Inc., supra, 23 Cal.4th 116, 138, 96 Cal.Rptr.2d 485, 999 P.2d 718.)
"`A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand. [Citations.]' (Paterno v. State of California (1999) 74 Cal.App.4th 68, 85 [87 Cal. Rptr.2d 754].)" (Adams v. Aerojet General Corp. (2001) 86 Cal.App.4th 1324, 1341, 104 Cal.Rptr.2d 116.) We therefore review the ruling under the abuse of discretion standard.
II
The UCL was recently and thoroughly reviewed by our Supreme Court in Bank of the West v. Superior Court, supra, 2 Cal.4th 1254, 10 Cal.Rptr.2d 538, 833 P.2d 545. The court began its review with the language of section 17200, which defines unfair competition to include "any unlawful, *302 unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code."
The court explained: "The Legislature intended this `sweeping language' to include `"anything that can properly be called a business practice and that at the same time is forbidden by law."' [Citation.] In drafting the act, the Legislature deliberately traded the attributes of tort law for speed and administrative simplicity. As a result, to state a claim under the act one need not plead and prove the elements of a tort. Instead, one need only show that `members of the public are likely to be deceived.' (Chern v. Bank of America [(1976)] 15 Cal.3d [866,] 876, [127 Cal.Rptr. 110, 544 P.2d 1310]; see also Committee on Children's Television Inc. v. General Foods Corp. [(1983)] 35 Cal.3d [197,] 211, [197 Cal.Rptr. 783, 673 P.2d 660].)" (Bank of the West v. Superior Court, supra, 2 Cal.4th at pp. 1266-1267, 10 Cal.Rptr.2d 538, 833 P.2d 545, italics added.)
The court next examined remedies available under the UCL. "Section 17203, which incorporates the broad, statutory definition of `unfair competition,' permits `any court of competent jurisdiction' to enjoin `[a]ny person performing or proposing to perform an act of unfair competition. . . .' (§ 17203.) The section also authorizes courts to make such orders as `may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.' [Citation.] The purpose of such orders is `to deter future violations of the unfair trade practice statute and to foreclose retention by the violator of its ill-gotten gains.' (Fletcher v. Security Pacific National Bank (1979) 23 Cal.3d 442, 449 [153 Cal. Rptr. 28, 591 P.2d 51] [interpreting the nearly identical language of section 17535]; see also People v. Superior Court (Jayhill) (1973) 9 Cal.3d 283, 288-289 & fn. 3, 107 Cal.Rptr. 192, 507 P.2d 1400, 55 A.L.R.3d 191.) The Legislature considered this purpose so important that it authorized courts to order restitution without individualized proof of deception, reliance and injury if necessary to prevent the use or employment of an unfair practice. (Committee on Children's Television Inc. v. General Foods Corp., supra, 35 Cal.3d at p. 211, [197 Cal.Rptr. 783, 673 P.2d 660]; see also Fletcher v. Security Pacific National Bank, supra, 23 Cal.3d at pp. 449-453, [153 Cal.Rptr. 28, 591 P.2d 51].)" (Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1267, 10 Cal.Rptr.2d 538, 833 P.2d 545, italics added.)
"Section 17200 `is not confined to anticompetitive business practices, but is also directed toward the public's right to protection from fraud, deceit, and unlawful conduct. [Citation.] Thus, California courts have consistently interpreted the language of section 17200 broadly.' [Citation.] `"The statute imposes strict liability. It is not necessary to show that the defendant intended to injure anyone."' ([Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499,] 520, [63 Cal.Rptr.2d 118], citing State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal. App.4th 1093,1102 [53 Cal.Rptr.2d 229].)"[3] (South Bay Chevrolet v. General Motors Acceptance Corp., supra, 72 Cal.App.4th *303 861, 877, 85 Cal.Rptr.2d 301.) "Because section 17200's definition is `disjunctive,' the statute is violated where a defendant's act or practice is unlawful, unfair, fraudulent or in violation of section 17500. (State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at p. 1102, [53 Cal.Rptr.2d 229].)" (Id. at p. 878, 85 Cal.Rptr.2d 301.)
"By their breadth, [sections 17200 and 17500] encompass not only those advertisements which have deceived or misled because they are untrue, but also those which may be accurate on some level, but will nonetheless tend to mislead or deceive . . . . A perfectly true statement couched in such a manner that it is likely to mislead or deceive the consumer, such as by failure to disclose other relevant information, is actionable under these sections." (Day v. AT & T Corp. (1998) 63 Cal.App.4th 325, 332-333, 74 Cal.Rptr.2d 55.)
Under section 17204, an action under the UCL may be brought "by any person acting for the interests of itself . . . or the general public." Bank One and the trial court rely on language in Kraus v. Trinity Management Services, Inc., supra, 23 Cal.4th 116, 96 Cal.Rptr.2d 485, 999 P.2d 718, reiterating the authority of the trial court to decide that a particular case is not a proper representative action under the UCL. "[B]ecause a UCL action is one in equity, in any case in which a defendant can demonstrate a potential for harm or show that the action is not one brought by a competent plaintiff for the benefit of injured parties, the court may decline to entertain the action as a representative suit. [Citation.]" (Id. at p. 138, 96 Cal. Rptr.2d 485, 999 P.2d 718.) With this background, we turn to the arguments of the parties.
III
Petitioner argues first that summary adjudication on the fourth cause of action for violation of the UCL was improper because the trial court focused its ruling entirely on the restitution theory of recovery, and ignored the claim for injunctive relief. In fact, petitioner also sought injunctive relief authorized by the UCL.
The trial court's statement did not explicitly address the injunctive remedy. But it focused on proof of liability, which affects both restitution and injunctive relief. As we have discussed, the trial court stated that a 17200 action is one in equity, that it could decline to hear a representative action if the plaintiff is not a proper plaintiff, and that in this case it would have to hear evidence about hundreds of transactions before it could issue a ruling.
Thus, the trial court ruled that it would not allow the representative action to go forward, either for the remedy of restitution or injunctive relief. Petitioner's claim that the court ignored the claim for injunctive relief is not supported by the record.
IV
Petitioner also argues that since he sought relief in his own right under the UCL cause of action, the trial court could not properly award summary adjudication for the entire fourth cause of action. We agree. Section 17203 provides that the court may make such orders or judgments "as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition." *304 In addition, individuals are expressly granted a right of action under section 17204 of the UCL: "Actions for any relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction . . . by any person acting for the interests of itself, its members or the general public." The term "person" is defined in section 17201 to include "natural persons. . . ."
Thus, petitioner had a right to seek restitution of the finance and interest charges if any were incurred by him. But the record reflects that he refused to pay these charges. Therefore, he is not entitled to individual restitution. Damages are not available under the UCL. (Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1266, 10 Cal.Rptr.2d 538, 833 P.2d 545.) Nevertheless, under sections 17203 and 17204, he was entitled to pursue a claim for injunctive relief for a violation of the UCL.
In its return to the petition for writ of mandate, Bank One argues that the issue of injunctive relief is moot because it transferred its "Same-As-Cash" finance plan to a third party, GE Capital Consumer Credit Card Company, in December 1998, and is no longer servicing its former "Same-As-Cash" accounts. This argument was not raised in the trial court, and, of course, was not ruled upon by that court. It may not properly be raised for the first time here.
We conclude that on the record presented, and independent of the representative action issue, the trial court erred in granting summary adjudication on the entire fourth cause of action for violation of the UCL because petitioner still had an individual cause of action. We now turn to the merits of its ruling on the representative action.
V
Resolution of the representative action issue is complicated by a wide variance in the parties' characterization of the nature of the UCL claim. Petitioner argues the program itself was a violation of the UCL, regardless of any particular advertisement or document from Bank One. He argues the trial court erred because individual issues as to liability and remedy do not predominate. Instead, "the single common denominator involved in all of the deceptive practices [in Bank One's] advertisements was: It lured customers into its financing plan by promising them '90-Days Same-as-Cash' and then Bank One treated the financing different than cash during this 90-day period. That is the core misleading and deceptive nature of the program. All of the advertisements set forth by Bank One state that the financing is '90-days Same-As-Cash.' Bank One has admitted that it always intended to require monthly payments during the first 90 day period. In some cases Bank One buried the phrase `monthly payments required' in small print. In other cases it simply did not mention anything about monthly payments. The common factor is that Bank One promised one thing, '90-days Same-As-Cash' (the bait), and then assessed finance charges and late fees for failing to make `monthly' payments during the 90 day period (the switch), even when the accountholder paid the full amount of the qualifying purchase within 90-days[.]"
Petitioner argues there are two ways in which the "Same-As-Cash" program is likely to deceive, and so constitute a violation of section 17200. The first is that Bank One's documents (including advertisements, training manuals, billing statements, disclosure statements, and credit card agreements) are inconsistent and confusing about whether minimum monthly payments are required during the "Same-As-Cash" *305 period. The second is that if minimum monthly payments are required, the "Same-As-Cash" promotions are likely to deceive consumers. That is so, he argues, because requiring consumers to make minimum payments before the end of the promotional period is not the same as paying cash. As petitioner explains, "Every time Bank One requires a monthly payment, or assesses finance charges or late fees for failing to make monthly payments, it is no longer treating the financing as its advertisements state: `Same-as-Cash.'"
The approach of amicus is similar. But it focuses on the advertisement which petitioner saw in the store. This advertisement was one of three used in California by Bank One which said nothing about the requirement of minimum monthly payments. Instead, it directed the consumer to "Ask for details TODAY!" Amicus argues: "[T]his statement has the capacity to mislead members of the public into believing that payment in 90 days is the same as payment in cash today, and thus, no financing charges would be imposed within the 90-day interval. The phrase `same as cash' explicitly represents that Bank One's financial plan is something entirely different than what it actually isa revolving credit account requiring minimum monthly payments. If a consumer waits 90 days to make full payment, the consumer incurs finance charges. The only way to avoid finance charges during the 90-day period is to make certain minimum monthly payments during that interval. Every time Bank One requires a monthly payment or assesses interest or late charges, the finance plan can no longer be considered `same as cash.' The Bank One plan, as evidenced by Prata, simply does not enable a consumer to defer payment for 90 days and have that deferred payment be treated the same as a cash payment at the outset of the transaction." Bank One focuses on petitioner's particular transaction. It points out that according to the complaint, petitioner relied on a single advertisement in a single store, and on a representation of a single employee of the merchant, and on his failure to receive any of the disclosures or agreements which were to be given to consumers participating in the credit program. According to Bank One, in order to determine whether there is a violation of the UCL, the trial court would have to examine each advertisement (19 were used in California); each consumer transaction (300,000 consumers); and determine whether the consumer received the program agreement and disclosures. The trial court agreed with this characterization of the action, and based its summary adjudication on the resulting conclusion that individual issues predominated over common issues, rendering a representative action inappropriate.
Bank One cites several cases to support its argument that the trial court properly exercised its discretion in refusing to allow petitioner to proceed on the basis of a representative action. The first is Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214 Cal.App.3d 699, 262 Cal.Rptr. 899. In that case, a grape grower sued a winery operator for breach of contract and violation of the UCL, based on payments made by the winery for the 1982 grape crop. The trial court found for the grower on both causes of action. It awarded restitution to the grower under section 17200. It also awarded restitution to 27 nonparty growers. The Court of Appeal reversed the restitution award to the nonparty growers. Only one nonparty grower had testified at trial, and the contracts of only 20 growers were introduced into evidence. The situation was complicated *306 by the winery's efforts during and after trial to obtain releases from a number of the nonparty growers. The Court of Appeal concluded that there were "serious fundamental" due process problems in rendering a judgment in favor of a nonparty in the section 17200 case before it and reversed the judgment in favor of the nonparty growers. (Id at pp. 717, 721, 262 Cal.Rptr. 899.)
The Supreme Court recently addressed these due process concerns in Kraus v. Trinity Management Services, Inc., supra 23 Cal.4th 116. The holding in Kraus is that disgorgement to a fluid recovery fund is not permitted under the UCL. The court observed that allowing fluid recovery in representative UCL actions might implicate the due process concerns raised by defendants in that case, and noted by the Court of Appeal in Bronco Wine Co. v. Frank A. Logoluso Farms, supra, 214 Cal. App.3d at page 717, 262 Cal.Rptr. 899. But it found no due process problem in a representative action seeking restitution under the UCL. Instead, the court suggested procedures to be implemented by the trial court to ensure restitution of any ill-gotten gains by a defendant who has violated the UCL.
The Kraus court held: "The judgment of the trial court for disgorgement of sums collected to secure liquidated damages may be enforced only to the extent that it compels restitution to those former tenants who timely appear to collect restitution. This does not mean, as the dissent asserts, that defendants may retain the funds improperly taken from their former tenants as liquidated damages. On remand the trial court should order defendants to identify, locate, and repay to each former tenant charged liquidated damages the full amount of funds improperly acquired from that tenant, retaining the power to supervise defendants' efforts, to ensure that all reasonable means are used to comply with the court's directives." (Kraus v. Trinity Management Services, Inc., supra, 23 Cal.4th at p. 138, 96 Cal. Rptr.2d 485, 999 P.2d 718.)
In footnote 18, the Supreme Court described the claim procedure to be used for a representative action under the UCL: "Because an order to disgorge into a fluid recovery fund is not authorized in such representative UCL actions, the trial court may order the defendant to notify the absent persons on whose behalf the action is prosecuted of their right to make a claim for restitution, establish a reasonable time within which such claims must be made to the defendant, and retain jurisdiction to adjudicate any disputes over entitlement to and the amount of restitution to be paid." (Kraus v. Trinity Management Services, Inc., supra, 23 Cal.4th at p. 138, fn. 18, % Cal.Rptr.2d 485, 999 P.2d 718, italics added.)
We are confident that the procedures suggested by the Supreme Court in Kraus will obviate the due process concerns raised by the court in Bronco Wine Co. v. Frank A. Logoluso Farms, supra, 214 Cal. App.3d at page 717, 262 Cal.Rptr. 899 and cited by Bank One here.
Bank One also cites South Bay Chevrolet v. General Motors Acceptance Corp., supra, 72 Cal.App.4th 861, 85 Cal.Rptr.2d 301 as a case in which a representative action under the UCL was rejected because the claims were not sufficiently uniform. General Motors Acceptance Corporation (GMAC) provided short-term loans to finance South Bay's purchases of vehicles for resale. South Bay sued under section 17200, arguing that by calculating loan interest based on a 360-day year method (365/360 method) without disclosure, GMAC overcharged for interest. South Bay brought the action on behalf of itself and all California automobile dealers *307 who received similar financing from GMAC. (Id. at p. 869, 85 Cal.Rptr.2d 301.) The trial court granted summary judgment to GMAC on the ground that minitrials would be necessary with respect to each California GMAC-financed dealership due to various uniquely individual questions of fact. The Court of Appeal affirmed the judgment on a different ground: that there was no likelihood of deception because South Bay knew GMAC was using the 365/360 method. (Id. at p. 870, 85 Cal.Rptr.2d 301.)
In affirming the judgment, the South Bay Chevrolet court distinguished two cases relied upon by petitioner here, Fletcher v. Security Pacific National Bank, supra, 23 Cal.3d 442, 153 Cal. Rptr. 28, 591 P.2d 51 and Chern v. Bank of America, supra, 15 Cal.3d 866, 127 Cal. Rptr. 110, 544 P.2d 1310. As the court stated: "[T]hose cases are properly distinguishable as involving loans made to individual consumers, not to a financially sophisticated automotive dealership with knowledge of the lender's use of the 365/360 method in the parties' ongoing relationship." (South Bay Chevrolet v. General Motors Acceptance Corp., supra, 72 Cal.App.4th at p. 883, 85 Cal.Rptr.2d 301.) In Chern, the Supreme Court had found that use of the 365/360 method was likely to deceive the bank's customers. (Chern, supra, 15 Cal.3d at p. 876, 127 Cal.Rptr. 110, 544 P.2d 1310.) The South Bay Chevrolet court concluded that the plaintiff in that case failed to establish a violation of section 17200 because there was substantial evidence that it knew, expected and agreed "that GMAC would use the 365/360 method to calculate interest." (South Bay Chevrolet, 72 Cal.App.4th at p. 878, 85 Cal.Rptr.2d 301.)
We agree with the distinction drawn in South Bay Chevrolet between actions brought to vindicate the rights of individual consumers under section 17200, such as the one before us, and actions such as the one in South Bay Chevrolet, which involve sophisticated business finance issues.
Our case is distinguishable from South Bay Chevrolet in another way. Here, there is no evidence that the consumers who participated in the "Same-As-Cash" financing program "knew, understood, agreed and expected" that the program was not really the "Same-As-Cash." Bank One submitted the declaration of Patrick Kelly, who was familiar with the program, in an effort to establish this knowledge. He explained the standard disclosures and agreements which were to be given to each participating consumer and merchant. He also declared that he was unaware of any complaints based upon consumers not having received the disclosures. This is not the kind of evidence presented in South Bay. (See South Bay Chevrolet v. General Motors Acceptance Corp., supra, 72 Cal.App.4th at p. 879, 85 Cal.Rptr.2d 301.)
Most fundamentally, South Bay Chevrolet is distinguishable because, given the nature of petitioner's challenge, there is no need to examine each consumer transaction to establish a violation of section 17200. The issue is, instead, whether the program as a whole was likely to mislead because it advertised financing as the "Same-As-Cash" while in fact minimum payments were required even when the initial 90-day period had not run and because fees and interest charges would be incurred if these minimum payments were not made. As amicus points out, the "Same-As-Cash" program was actually a revolving credit account requiring minimum monthly payments.
Bank One also cites language in Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, 259 Cal.Rptr. 789 to the effect that damages are not available in an action for a violation of the UCL because individual claims for compensatory damages would be inconsistent *308 with the streamlined procedure of the UCL. (Id at p. 774, 259 Cal.Rptr. 789.) Damages, as such, are not recoverable in a UCL action, but, as the Dean Witter court recognized, restitution is an appropriate remedy under the UCL. (Ibid.) It is the remedy sought here.
In Bank of the West v. Superior Court, supra, 2 Cal.4th 1254, 10 Cal. Rptr.2d 538, 833 P.2d 545, the Supreme Court reiterated that the UCL is intended to deter violations of the UCL and "`to foreclose retention by the violator of its illgotten gains.'" (Id at p. 1267, 10 Cal. Rptr.2d 538, 833 P.2d 545, quoting Fletcher v. Security Pacific National Bank, supra, 23 Cal.3d 442, 449, 153 Cal.Rptr. 28, 591 P.2d 51.) The Supreme Court emphasized: "The Legislature considered this purpose so important that it authorized courts to order restitution without individualized proof of deception, reliance, and injury if necessary to prevent the use or employment of an unfair practice. (Committee on Children's Television Inc. v. General Foods Corp., supra, 35 Cal.3d at p. 211, [197 Cal.Rptr. 783, 673 P.2d 660]; see also Fletcher v. Security Pacific National Bank, supra, 23 Cal.3d at pp. 449-453, [153 Cal.Rptr. 28, 591 P.2d 51].)" (Bank of the West, supra, at p. 1267, 10 Cal.Rptr.2d 538, 833 P.2d 545.) Bank One's argument that the language in Dean Witter regarding individualized proof of compensatory damages should apply as well to proof of restitution is inconsistent with the Supreme Court's opinion in Bank of the West.
As we have seen, under the UCL, a representative plaintiff need not prove that members of the public actually were deceived, relied upon the fraudulent practice, or sustained any damage. (Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1267, 10 Cal.Rptr.2d 538, 833 P.2d 545.) The only requirement is that the defendant's practice is unlawful, unfair, deceptive, untrue, or misleading. The burden of proof is modest: the representative plaintiff must show that members of the public are likely to be deceived by the practice. (Id at pp. 1266-1267, 10 Cal. Rptr.2d 538, 833 P.2d 545; see also State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at p. 1105, 53 Cal.Rptr.2d 229.) It therefore was not necessary for the trial court to determine which advertisements, disclosures, or representations actually were relied upon by members of the public who participated in Bank One's "Same-As-Cash" promotion in order to determine liability. The trial court used the wrong standard in focusing on issues of proof regarding individual consumers.
This conclusion is supported by Kraus v. Trinity Management Services, Inc., supra, 23 Cal.4th 116, 96 Cal.Rptr.2d 485, 999 P.2d 718. In discussing its opinion in an earlier case, Fletcher v. Security Pacific National Bank, supra, 23 Cal.3d 442, 153 Cal.Rptr. 28, 591 P.2d 51, the Kraus court said: "We distinguished a UCL claim from claims based on breach of contract or fraud, and held that once an unfair trade practice was established, a class action could proceed without individualized proof of lack of knowledge of the fraud." The Supreme Court continued its discussion of the Fletcher opinion: "Rejecting a claim that the statutory authority to make orders necessary to restore money `which may have been acquired' through an unlawful practice required proof of each transaction in order to determine that each claimant had been defrauded, we also held that section 17535 authorized a court to order restitution without showing the individual's lack of knowledge of the fraudulent practice in each transaction. (Fletcher, supra, 23 Cal.3d at pp. 450, 452, [153 Cal.Rptr. 28, 591 P.2d 51].)" (Kraus, supra, *309 23 Cal.4th at p. 134, 96 Cal.Rptr.2d 485, 999 P.2d 718.)
There is a substantial showing in this case that the three advertisements which did not mention the monthly minimum payments (including the one seen by petitioner) were false and misleading and violate section 17200. In each, Bank One's "Same-As-Cash" advertisement is likely to deceive the public because, in fact, the bank does not treat purchases under the program in the same way that cash purchases are treated. Instead, consumers are required to make monthly minimum payments during the 90-day period and are liable for fees and interest if they do not. The fact that disclosures and the credit agreement issued by Bank One stating the "details" of the program may have explained that the program was, in fact, not as advertised, does not ameliorate the deceptive nature of this advertising.
Bank One's use of 19 different advertisements to promote its program in California may impact the size of the representative action. It is conceivable that many of the advertisements are not likely to mislead within the meaning of section 17200. Since the trial court focused on the issues of individual deception, reliance, and damages, it did not consider whether the other advertisements used by Bank One to promote the "Same-As-Cash" program in California violated section 17200. On remand, in order to determine the size of the representative class, the trial court must make that determination. The trial court also may exercise its discretion to limit the representative action to consumers who relied on the advertisements and program materials produced by Bank One, rather than on representations made by retail store clerks about the "Same-As-Cash" program.
Finally, Bank One argues that petitioner is not a proper representative of other consumers because what happened to him was unique. It points to evidence that petitioner relied, at least in part, on representations by a store clerk, that he did not receive the disclosures and agreement related to the "Same-As-Cash" plan, the single advertisement he saw in the store, and that the first two credit card statements he received did not charge him monthly payments. Bank One also points to a paragraph in the Kelly declaration that consumers "typically" were given clear written disclosures, saw advertisements which said monthly payments were required, received credit card statements stating minimum monthly payments due, and were properly informed about the program by merchants.
But as we have discussed, Kelly was not in a position to establish this evidence. His testimony was based on the bank's standard practices, rather than actual evidence of consumer transactions. More fundamentally, Bank One's argument focuses once again on individual matters of proof irrelevant to liability under the UCL. "[T]he `fraud' contemplated by section 17200's third prong bears little resemblance to common law fraud or deception. The test is whether the public is likely to be deceived. (Committee on Children's Television, Inc. v. General Foods Corp-L supra,] 35 Cal.3d 197, 211 [197 Cal.Rptr. 783, 673 P.2d 660].) This means that a section 17200 violation, unlike common law fraud, can be shown even if no one was actually deceived, relied upon the fraudulent practice, or sustained any damage. (35 Cal.3d at p. 211, [197 Cal.Rptr. 783, 673 P.2d 660].)" (State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at p. 1105, 53 Cal.Rptr.2d 229.) Thus, Bank One's argument does not establish that petitioner is not a proper representative under section 17200.
DISPOSITION
The petition for writ of mandate is granted. Respondent court is directed to *310 vacate its rulings that petitioner has failed to state a cause of action under the UCL and that he may not bring a representative action under that statute; the court is directed to take further action in this case consistent with this opinion. Petitioner shall have his costs in this proceeding. (Cal. Rules of Court, rule 56.4.)
CHARLES S. VOGEL, P.J., and HASTINGS, J., concur.
NOTES
[1] The Legislature did not designate a title for the statutory scheme beginning with Business and Professions Code section 17200 (all statutory references are to that code unless another is indicated). In its most recent cases examining section 17200 et seq., the California Supreme Court described these sections as the unfair competition law. (See Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 121, 96 Cal.Rptr.2d 485, 999 P.2d 718.) In earlier opinions, the Court had termed it the Unfair Business Practices Act. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266, 10 Cal.Rptr.2d 538, 833 P.2d 545). We follow the most recent practice and refer to the unfair competition law, or UCL.
[2] According to the declaration of Patrick Kelly, a former employee of Bank One, this sales reference guide was sent only to members of the Floor Covering Consumer Credit Association.
[3] In a footnote at this point, the court noted: "Other language in State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at page 1104, [53 Cal.Rptr.2d 229], has been disapproved by the Supreme Court in a discussion expressly limited to the context of `an action by a competitor alleging anticompetitive practices.' (Cel Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 187, & fn. 12 [83 Cal.Rptr.2d 548, 973 P.2d 527].)" (South Bay Chevrolet v. General Motors Acceptance Corp., supra, 72 Cal.App.4th at p. 877, fn. 9, 85 Cal.Rptr.2d 301.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261594/ | 861 F.Supp. 1402 (1994)
CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, Central States, Southeast and Southwest Areas Health and Welfare Fund and Robert Baker, Trustee, Plaintiffs,
v.
CENTRAL TRANSPORT, INC., and Central Cartage Co., Defendants.
No. 91 C 6232.
United States District Court, N.D. Illinois, Eastern Division.
August 25, 1994.
*1403 *1404 Francis Joseph Carey, Cent. States Law Dept., Rosemont, IL, for Robert J. Baker, trustee.
Grady B. Murdock, Jr., Earl L. Neal & Associates, Leonard R. Kofkin, Donald Joseph Vogel, Fagel & Haber, Chicago, IL, Patrick A. Moran, Evans & Luptak, Detroit, MI, for Cent. Transport Inc., Cent. Cartage Co.
MEMORANDUM OPINION AND ORDER
LEINENWEBER, District Judge.
BACKGROUND
Plaintiffs, Central States, Southeast and Southwest Areas Pension Fund ("Pension Fund"), Central States, Southeast and Southwest Areas Health and Welfare Fund ("Health & Welfare Fund"), and the trustee of both funds, Robert Baker, (hereinafter collectively the "funds"), have brought an action against defendants, Central Transport, Inc. ("Transport") and Central Cartage Co. ("Cartage"), to collect audit-revealed delinquent contributions from both defendants and to enforce a bankruptcy plan of reorganization and a guarantee against Transport. The funds claim that Transport and Cartage are liable for such delinquent contributions under section 515 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1145.
Plaintiffs are multi-employer funds and third-party beneficiaries to collective bargaining agreements negotiated between participating employers and local unions. The funds provide pension coverage and health benefits to employees covered by the collective bargaining agreements. Transport and Cartage are participating Michigan corporations. Both companies are parties to the National Master Freight Agreement ("NMFA") the collective bargaining agreement between the local unions and the participating employers and various addenda and contracts that supplement the NMFA.
The funds move the court to grant a motion for summary judgment on three of the four counts of their Second Amended Complaint ("complaint"). With regard to Count I, the funds have moved for summary judgment against both Transport and Cartage. In Count I, the funds seek to collect audit-revealed, delinquent contributions from both defendants. The funds move for summary judgment in Counts III and IV solely against Transport. From Transport only, the funds seek to recover a debt originally incurred by a company that underwent bankruptcy reorganization and subsequently merged with Transport. The funds seek to recover this amount on two alternative theories. In Count III, the funds seek to enforce Transport's guarantee of the delinquent contributions. In Count IV, the funds seek to collect the delinquent contributions directly from Transport as an "employer," as defined by ERISA, and as the principal debtor. Additionally, *1405 Transport moves the court for summary judgment against the funds in Counts III and IV. In an Order entered July 17, 1992, this court granted the funds' motion for summary judgment against both defendants on Count II. Count II, therefore, is not at issue in this motion for summary judgment.
I. Jurisdiction
The first question the court must consider is whether it has jurisdiction to hear this case. With respect to Count I ("audit-revealed delinquent contributions"), sought from each defendant pursuant to section 515 of ERISA, the court has jurisdiction over this matter as provided in section 502(e)(1) of ERISA (29 U.S.C. § 1132(e)(1)). In pertinent part, section 502(e)(1) provides that "the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought ... by a fiduciary." 29 U.S.C. § 1132(e)(1); Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539, 547, 108 S.Ct. 830, 835, 98 L.Ed.2d 936 (1988) ("the liability created by Section 515 [of ERISA] may be enforced by the trustees of a plan by bringing an action in Federal District Court pursuant to Section 502 [of ERISA]").
The funds assert that jurisdiction under Counts III and IV is proper either under section 502(e)(1) of ERISA, under federal common law pursuant to 28 U.S.C. § 1331, or under the court's supplemental jurisdiction pursuant to 28 U.S.C. § 1367. Complaint at ¶ 26. Transport denies such jurisdiction exists. Answer to Second Amended Complaint ("answer") at ¶ 26.
The court also properly has original jurisdiction over the guarantee claim. See Laborers' Pension Fund v. Concrete Structures of the Midwest, Inc., 999 F.2d 1209, 1211 (7th Cir.1993). In Laborers' Pension Fund, a general contractor had agreed to guarantee the payments of its sub-contractor. When the sub-contractor fell behind in its contribution obligations, the pension fund secured a note from the sub-contractor's owner (not the general contractor). Id. After making several payments, the sub-contractor and its owner went bankrupt. Id. The general contractor was obligated by a previous guarantee agreement with the pension funds to make payments for the sub-contractor if the sub-contractor failed to make contributions. Id. The court held that the general contractor was liable for the guarantee under section 515 of ERISA. Id. Despite the fact that the payments sought from the general contractor were pursuant to a guarantee, the court, nevertheless, held that the pension fund had the right to collect "delinquent contributions" under section 515 of ERISA. Id. Because the guarantee claim sought to be enforced by the pension funds was for delinquent contributions, jurisdiction was proper under section 502(e) of ERISA. Id. Like the pension funds in Laborers' Pension Fund, in Count III plaintiffs also seek to enforce a guarantee of delinquent contribution payments. Accordingly, the court has jurisdiction under section 502(e) of ERISA. Id.
Finally, jurisdiction is also proper over Count IV of the complaint. In the employer contribution claim, the funds seek to recover delinquent contributions based on a successor liability theory. See complaint at ¶ 41. The Seventh Circuit Court of Appeals has tacitly approved jurisdiction in successor liability cases under section 502 of ERISA. See Upholsterers' Union Pension Fund v. Artistic Furniture, 920 F.2d 1323, 1328 (7th Cir.1990) (recognizing the statutory authority to recover delinquent contributions under ERISA in a successor liability action). Because jurisdiction lies for claims to recover delinquent contributions on a theory of successor liability, the court has jurisdiction over Count IV of the complaint. Id.
II. Summary Judgment Standard
Summary judgment is appropriate if no issue of material fact exists warranting a trial on the merits. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). No material issue of fact exists for trial if, in viewing the evidence in a light most favorable to the non-moving party, a reasonable jury could not return a verdict in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the initial burden of supporting its motion *1406 that no genuine issue of material fact exists. Celotex, 477 U.S. at 322, 106 S.Ct. at 2553. If that burden is met, the non-moving party must come forward with specific facts to rebut that showing. The party resisting the motion "may not rest upon mere allegations or denials of his pleadings" to avoid summary judgment. Anderson, 477 U.S. at 255, 106 S.Ct. at 2514. The court will examine the funds' summary judgment motion in a light most favorable to defendants, and will examine Transport's summary judgment motion in a light most favorable to the funds.
III. The Funds' Motion for Summary Judgment Against Transport and Cartage for Audit-Revealed Delinquent Contributions (Count I)
As an initial matter, it should be noted that Transport has incorporated by reference the arguments included in Cartage's Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. Here, although a majority of the arguments in opposition to summary judgment on Count I are presented in Cartage's memorandum, since Transport incorporated those arguments by reference, the court will refer to them as "defendants'" arguments.[1]
In Count I, the funds seek to recover audit-revealed delinquent contributions from both defendants. The amounts sought in the funds' motion for summary judgment against both Transport and Cartage can be divided into three categories. The funds seek to recover amounts owed for: 1) non-union casual employees; 2) regular employees for vacations, holidays, and sick days; and 3) employees whom defendants argue were "probationary." In an attempt to stave off summary judgment, defendants argue that: 1) the parties to the collective bargaining agreement did not intend contributions to be made for non-union casuals; 2) contributions are linked to productivity and, therefore, amounts are not owed for regular employees for vacations, holidays, and sick days; and 3) certain employees had extended their probation period and, thus, contributions were not owed for those employees. The court will address each of the funds' claims, and defendants' arguments in response to these claims, in turn.
A. Non-Union Casual Employees
The first issue presented in the funds' motion for summary judgment concerns contributions due from defendants for non-union casual employees. In its 1992 decision, the court ruled that the NMFA, on its face, requires contributions on "each casual employee" including non-union employees. Central States SE & SW Areas Pension Fund v. Central Transport, Inc., 1992 WL 175499 at *1, 1992 U.S.Dist. LEXIS 10768 at *2 (N.D.Ill.1992) (citing NMFA Art. 3, § 1(e)(2)). The Seventh Circuit Court of Appeals has also found that the NMFA requires contributions for non-union employees. Central States SE & SW Areas Pension Fund v. Gerber Truck Serv., Inc., 870 F.2d 1148, 1150 (7th Cir.1989) (en banc). Defendants argue that they should have the opportunity to prove that contributions are not required for non-union casual workers. Additionally, defendants contend that they relied on the provisions of a Settlement Agreement ("Settlement Agreement") entered into with Central States to their detriment. Because the court has already addressed these arguments as they relate to the issue of non-union casual employees, in substance, defendants are asking the court to reconsider its 1992 Order.
The court will not do so. Any request for reconsideration of the 1992 decision is procedurally defective. For the court to reconsider that decision, defendants must file a motion to reconsider under Local Rule 12(c) stating with particularity the grounds and relief requested. For this reason alone, the court need not consider defendants' arguments regarding non-union casual employees.
Furthermore, even if defendants' memoranda were to be construed as a motion for reconsideration, the arguments put forth are not substantively persuasive. Motions for reconsideration serve a limited function and will be granted only when
*1407 the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court. Such problems rarely arise and the motion to reconsider should be equally rare.
Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va. 1983)) (emphasis added).
The court has not patently misunderstood defendants' argument. The issue before the court in the 1992 motion for summary disposition was whether the NMFA required contributions for non-union casuals. See Central States, 1992 WL 175499 at *1, 1992 U.S.Dist. LEXIS 10768 at *2. In that motion, defendants argued that the parties did not intend to have contributions made for non-union casuals. Id. The court ruled that the plain meaning of the language required such contributions. Id. As was stated in that ruling, "[t]he court will not disregard the plain meaning of the NMFA to give effect to what the employers now claim is their intent." Id. (citing Robbins v. Lynch, 836 F.2d 330 (7th Cir.1988)).
Subjective intent is irrelevant to the issue of interpreting the collective bargaining agreement. As third-party beneficiaries to the agreement, the funds are "entitled to enforce the writing without regard to the understandings or defenses applicable to the original parties." Central States SE & SW Area Pension Funds v. Gerber Truck Serv., Inc., 870 F.2d 1148, 1149 (7th Cir.1989). The court could not have patently misunderstood the parties because the sole focus of the decision was the plain language of the NMFA. The nature of the decision did not allow for the possibility of a misunderstanding of the parties' intent. The plain language of the document is controlling. Defendants' old argument is again unpersuasive.
Additionally, the decision was not based on issues outside those framed by the adversarial parties. As noted above, the issue then was precisely the same issue presented by the adversaries now, namely: whether the NMFA requires contributions for non-union casuals. The answer, both then and now, is that it does.
With respect to the NMFA language, no facts or law have changed since the time of the 1992 summary judgment decision. The language of the NMFA has not changed since 1992, nor could it have. The language considered by the court was the language as it existed then. Any subsequent changes in that agreement are simply not relevant. Also, the basic rules of contract interpretation are well settled. Where the language is unambiguous, the plain meaning is to be given effect. See Nat'l Fidelity Life Ins. Co. v. Karaganis, 811 F.2d 357, 361 (7th Cir. 1987); Nat'l Diamond Syndicate, Inc. v. UPS, 897 F.2d 253, 256 (7th Cir.1990) (citing Fields v. Franklin Life Ins. Co., 115 Ill. App.3d 954, 71 Ill.Dec. 776, 778, 451 N.E.2d 930, 932 (5th Dist.1983)). Thus, there are no arguments that persuade the court to reconsider its 1992 decision even if defendants had properly requested the court to do so.
In addition to rejecting defendants' argument that the NMFA does not require contributions for non-union casuals in its 1992 decision, the court also rejected defendants' contention that relying on the Settlement Agreement to their detriment was grounds for relief. See Central States, 1992 WL 175499, 1992 U.S.Dist. LEXIS 10768; Defendants' Brief in Opposition to Plaintiffs' Motion for Summary Disposition at 12-13 (filed April 27, 1992). Just as defendants failed to show why the court should reconsider its 1992 decision that the NMFA requires contributions for non-union casual employees, defendants have also failed to provide the court with any reason to reconsider its decision with respect to the issue of reliance on the Settlement Agreement. Defendants simply reassert the same argument that Cartage advanced in response to the 1992 motion for summary judgment. Defendants' argument that they relied on the Settlement Agreement to their detriment is as unpersuasive now as it was then.
*1408 Defendants do present one new argument with respect to the issue of non-union casual employees. They contend that the issue of non-union workers should have been resolved through arbitration as provided for in a participation agreement entered into with the funds.
"Federal policy favors the enforcement of private arbitration agreements." St. Mary's Med. Center v. Disco Aluminum Products, 969 F.2d 585, 587 (7th Cir.1992). The federal policy in favor of arbitration over litigation, however, is not "an absolute preference." Id. Courts may refuse to enforce arbitration agreements when the right to arbitrate has been waived. Id. In determining whether a party has waived the right to arbitrate, the court must examine the facts and circumstances of each particular case. Id. at 588. The essential question is whether the party alleged to have defaulted has acted inconsistently with the right to arbitrate. Id.
Like the instant case, St. Mary's Med. Center also involved a contract dispute which, according to the defendant, was subject to an arbitration clause. 969 F.2d at 586. The defendant in that case participated in litigation for ten months before it moved the court to dismiss the claim or alternatively to grant summary judgment. Id. The court held that submitting the claim to the district court for a summary judgment ruling or on a motion to dismiss was inconsistent with a desire to arbitrate. Id. at 589. The court reasoned that a "party may not normally submit a claim for resolution in one forum and then, when it is disappointed with the result in that forum, seek another forum." Id.
In the present case, defendants have acted inconsistently with a desire to arbitrate, thus leading the court to conclude that the right has been waived. Defendants responded to the funds' first motion for summary judgment and allowed the court to enter an order without even mentioning the availability of arbitration. It is only now, in response to the present motion for summary judgment, that defendants have expressed a desire to resolve the issue through arbitration. Defendants "had a right to insist on arbitration rather than litigation." See Id. at 591. By allowing the court to rule in 1992 on matters that defendants now claim should be subject to an arbitration clause, defendants have acted inconsistently with their right to arbitrate. See Id.
Waiver of a party's right to arbitrate may be found even if the failure to exercise that right has not prejudiced the non-defaulting party. Id. Prejudice is to be considered by the district court as one relevant factor in determining whether there has been a waiver of the right to arbitrate. Id.
In this case, the funds were prejudiced by defendants' delay in asserting arbitration as a defense. By delaying the demand for arbitration, defendants were able to obtain discovery that they would not necessarily have been entitled to had there been an arbitration proceeding. See Id. Furthermore, the funds expended resources litigating that they otherwise would not have had to had the arbitration process moved forward. Id. Because defendants did not mention their right to arbitrate in their response to the motion for partial summary judgment filed against them in 1992, they have not preserved that right. Given this fact, and given the fact that defendants have not shown that they would be substantially prejudiced (and cannot show that the funds would not be prejudiced) by such a ruling, the court rules that defendants' defense of arbitration has been waived.
Finally, Cartage requests that the court re-open discovery if, as has occurred, the arbitration argument is rejected.[2] Cartage asks that the court re-open discovery: a) so that it can show that it did not intend to make contributions on behalf of non-union employees, and b) so that it may have an opportunity to challenge the audit findings. The court finds neither of these arguments to be persuasive.
*1409 The court will not re-open discovery in order to give Cartage an opportunity to show the subjective intent of the parties to the collective bargaining agreement. As has been noted, subjective intent is irrelevant to the issue of interpreting the collective bargaining agreement. As third-party beneficiaries, the funds can enforce the plain meaning of the contract. See Gerber Truck Serv., Inc., 870 F.2d at 1149. A discovery request that merely seeks to prove the subjective intent of the parties is not helpful with regard to this issue and, therefore, is denied. See Id.
Cartage's other argument in favor of reopening discovery is that it claims that it has not had ample time to examine the funds' audit findings. Cartage claims that it "just received its first opportunity to test by discovery the audit conclusions of" the funds. Cartage's Memorandum in Opposition to [the] Motion for Summary Judgment ("Cartage's Response") at 11 (emphasis added). Cartage further states that "the opportunity could not by definition arise until the recent completion of the audit by" the funds. Id. (emphasis added). As the funds point out, however, the final portion of the audit findings was attached to plaintiffs' Third Set of Requests for Admission Directed at Central Cartage Co., which was served on March 4, 1993 over eleven months before the present motion was filed. See Central States' Reply Memorandum in Support of its Motion for Summary Judgment Directed at Central Cartage ("Central States' Reply to Cartage") at 2; Central States' Reply to Cartage, Ex. B. Further, Cartage responded to the audit findings on May 7, 1993. Id. The court simply disagrees that at the time Cartage's Response was filed the audit had only "recently" been completed and that Cartage had "just received" the findings. Cartage has had ample time to examine the funds' audit findings. Indeed, given the nature of its response filed on May 7, 1993, it appears that Cartage actually did examine the audit findings. Cartage's request to re-open discovery is, therefore, denied.
For the reasons stated in both the court's 1992 Order and this ruling, summary judgment with regard to the amounts owed for non-union casual employees is granted.
B. Contributions for Vacation Days, Holidays, and Sick Days on Behalf of Regular Employees
The funds request summary judgment against both defendants with regard to the issue of contributions due for non-casual employees for vacation days, holidays, and sick days. Whether contributions are due depends on the language of the collective bargaining agreement. As has already been noted, the funds, as third-party beneficiaries, can enforce the plain meaning of the agreement without regard to the subjective intent of the parties. See Gerber, 870 F.2d at 1149. The terms of the NMFA provide in Articles 54 and 55 that employers must contribute for regular employees for each day "worked or compensated." See Central States' Reply to Cartage at 11. Although vacations, holidays, and sick days are not days on which regular employees "worked," they are days for which regular employees are "compensated." Therefore, the plain language of the agreement requires that the employers make contributions on behalf of the employees for vacations, holidays, and sick days because they are "days compensated."
Defendants argue that it was not the intention of the parties to the bargaining agreement to make contributions on behalf of employees for these days. However, once again, whether the parties intended something other than the plain meaning of the agreement is irrelevant. Gerber, 870 F.2d at 1149. Defendants maintain that the holding in Connors v. Consolidation Coal Co., 866 F.2d 599, 601 (3d Cir.1989), supports its proposition that contributions should be linked to productivity and, consequently, contributions are not required for days on which workers are not productive i.e., days on which employees are paid but do not work. However, the funds correctly point out that in Connors, the collective bargaining agreement required that employers make contributions to the trust funds for all hours worked in a classified job. The collective bargaining agreement explicitly stated that hours not worked should not be reported. *1410 Id. The Third Circuit Court of Appeals, therefore, found that the contributions to trust funds were linked to productivity. Id.
In the instant case, the collective bargaining agreement requires contributions for days based on compensation, not based on productivity. This distinction is crucial and makes the facts of the present case distinguishable from the facts in Connors. The court rules that the plain meaning of the agreement will be given effect and that the funds' motion for summary judgment is be granted with respect to the issue of contributions for vacation days, holidays, and sick days on behalf of regular employees.
C. Probationary Employees
In response to the funds' motion for summary judgment, defendants argue contributions are not required for those employees who have extended their probationary period. To extend the probationary period of a new employee beyond the initial 30-day period, the employee and the union must execute a written agreement stating the parties' intention to do so. See, e.g., Central States' Reply to Cartage at 13-14.
In this case, the funds have calculated liability by counting an initial period of 30 days for each employee and then assessing contributions for the time worked or compensated after the initial period. The funds' presumption is that absent a written agreement between the union and the employee, a newly hired employee's probationary period would end after the initial 30 days. Cartage disputes the funds' calculation of damages by this method, but Cartage has not offered documentation showing that the employees have executed the required written agreements stating the parties' intent to extend the probationary period.[3]See Affidavit of Hal Briand. In short, Cartage has merely rested on the allegations of its pleadings and its filings and has not set forth specific facts that demonstrate that a genuine issue of fact exists with regard to this issue. For this reason, Cartage's argument cannot stave off summary judgment on this point.
Transport makes one unique argument in its effort to prevent the court from entering summary judgment in favor of the funds on this count. Specifically, Transport argues that an addendum to the NMFA that it executed with the funds shows that contributions are not intended for "holidays, vacations, sick days, probationary employees and non-union casuals." See Transport's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment ("Transport's Reply"). In arguing that it is exempt from making contributions for all of these categories of employees, Transport refers to the clause in the addendum that provides that "[p]ension payments [were] to be made on a daily basis or by tour of duty as required. ..." Id. Without explanation, Transport claims that this provision shows that the funds are not entitled to contributions for any of the above-mentioned categories. The court finds no support for this proposition. Payments can be made for holidays, vacations, sick days, probationary employees, and non-union casuals "on a daily basis." Transport effort to stave off summary judgment on this point fails.
Summary judgment is entered against both Cartage and Transport, and in favor of the Pension Fund and the Health & Welfare Fund on Count I.
Both Cartage and Transport are liable for delinquent contributions: 1) for non-union casual employees, 2) for employees who do not have supporting documentation regarding probation extension, and 3) for vacation days, holidays, and sick days on behalf of regular employees.
Transport has not disputed the amount that the funds allege is owed to them, and so the court rules that it must pay $16,563.20 to the Pension Fund, and $13,065.60 to the Health & Welfare Fund. Additionally, Transport is ordered to pay to each of the funds the greater of double interest, or single interest plus liquidated damages, as well as all audit costs and attorneys' fees. Furthermore, pursuant to 29 U.S.C. 1132(g)(2), *1411 Transport is ordered to pay the costs reasonably incurred by the Pension Fund and the Health & Welfare Fund in connection with this action.
Cartage has disputed the amounts owed in the challenged categories. However, Cartage's dispute with regard to the amounts owed are not addressed in a Local Rule 12(n) statement.[4] Cartage disputes certain calculations of the funds, but does not allege specifically which amounts are controverted. Because of its filing deficiency, the amounts presented by the funds are taken as admitted. The court rules that Cartage must pay to the Pension Fund $1,783,383.40 for non-union casuals and $161,243.20 for audit-revealed delinquencies. Additionally, the court rules that Cartage must pay $52,504.20 for audit-revealed delinquencies to the Health & Welfare Fund.[5] Finally, pursuant to 29 U.S.C. § 1132(g)(2), Cartage is ordered to pay the greater of double interest, or single interest plus liquidated damages, and all audit costs and attorneys' fees and costs reasonably incurred by the Pension Fund and the Health & Welfare Fund in connection with this action.
IV. The Funds' Motion for Summary Judgment against Transport on Counts III and IV, and Transport's Cross-Motion for Summary Judgment Against the Funds on Counts III and IV
A. Interpreting the Settlement Agreement
The question presented in Counts III and IV of the complaint is whether the Settlement Agreement released Transport from its guarantee obligation to the funds or, alternatively, from the obligation to the funds that it assumed from General Highway Express, Inc. ("GHE") when the two companies merged. The answer to this questions depends on whether GHE's original indebtedness in its present form is a "contribution obligation" within the meaning of the Settlement Agreement or whether it is some other type of liability.
The court's first task is to determine which law will govern the interpretation of the Settlement Agreement. The preemptive language of ERISA should be broadly construed. Miller v. Lay Trucking Co., Inc., 606 F.Supp. 1326, 1333 (N.D.Ind.1985). "State law that purports to govern the terms and conditions of pension plans generally is preempted by ERISA unless it relates to such plans `only in the most remote and peripheral manner.'" Id. (quoting Bucyrus-Erie Co. v. Dep't of Indus., Labor & Human Relations, 599 F.2d 205, 209-10 (7th Cir. 1979), cert. denied, 444 U.S. 1031, 100 S.Ct. 701, 62 L.Ed.2d 667 (1980) (further citations omitted)).
A federal court in the Eastern District of New York has ruled that federal common-law governs the validity of settlement agreements resolving disputes under ERISA. See Sheet Metal Workers Local 137 v. Vic Const., 825 F.Supp. 463 (E.D.N.Y.1993). To further the policies of ERISA, the court held that federal, not state, common-law would govern. It is not clear, however, that the same principles would apply to the interpretation as well as the validity of a Settlement Agreement under ERISA. Significantly, the Eastern District of New York declined to address the issue in a recent case because application of state or federal common-law would produce the same result. See ILA Warehouse Employees Pension Fund v. Metro Storage Inc., 1993 WL 547427 at *3, 1993 U.S.Dist. LEXIS 18505 at *7 (E.D.N.Y.1993). This result is not surprising because when a statute such as ERISA or federal common-law do not speak to a particular issue, federal courts may look to state law. See Fox Valley & Vic. Const. Workers' Pension Fund v. Brown, 684 F.Supp. 185 (N.D.Ill.1988).
In this case, the settlement agreement does not contain a choice of law clause. Section 514 of ERISA suggests that the law *1412 governing the interpretation of a settlement agreement related to a pension fund is preempted. See 29 U.S.C. § 1144. Since state law relating to ERISA is preempted, federal common-law developed under ERISA would normally be followed, see id., however, since neither the statute, or federal common-law has spoken on this issue, the court looks to well established rules of contract construction.[6]
B. The Funds' Motion for Summary Judgment Against Transport on Count III
The Settlement Agreement states that it settles "all contribution obligations (including associated interest to date) of the companies listed ... through the last date audited by the funds for each company." Settlement Agreement at 4. The plain meaning of the phrase "contribution obligations" does not support the funds' position that Transport was not released from liability by the 1988 Settlement Agreement.
The starting point is the Settlement Agreement itself; if the language of the Settlement Agreement clearly and unambiguously determines an answer to the question at issue, then the inquiry is over. See Air Line Stewards v. American Airlines, Inc., 763 F.2d 875, 877 (7th Cir.1985) (applying Illinois law), cert. denied, 474 U.S. 1059, 106 S.Ct. 802, 88 L.Ed.2d 778 (1986); see also Craig v. Bossenbery, 134 Mich.App. 543, 548, 351 N.W.2d 596, 599 (1984) (applying Michigan contract principles). Assuming, as the funds have argued, that the Settlement Agreement is unambiguous, then the plain meaning of the language, when viewed in a light most favorable to Transport, indicates that Transport's guarantee was not, as a matter of law, a "contribution obligation." See Anderson, 477 U.S. at 255, 106 S.Ct. at 2514.
Contrary to the funds' assertions, the plain meaning of the phrase "contribution obligations" supports Transport's argument that the Settlement Agreement released it from its guarantee obligation. The Oxford English Dictionary ("OED") defines "contribute" in the relevant sense in the following way: "3. To give or pay jointly with others; to furnish to a common fund or charge." Vol. 3 at 848 (2d Ed.1989). The OED defines "contribution" in the relevant sense in the following way: "1.a. The action of contributing or giving as one's part to a common fund." Id. The OED defines "obligation" in the relevant sense in the following way: "1. The action of binding oneself by oath, promise, or contract to do or forbear something; an agreement whereby one person is bound to another." Vol. 10 at 647 (2d Ed.1989). In this case, Transport's guarantee was a "contract to do or forebear something" namely to "pay jointly ... to a common fund." Id.; Vol. 3 at 848. Transport's guarantee is within the plain meaning of the phrase "contribution obligations." Thus, interpreting the settlement by the plain meaning of the language undermines the funds' motion for summary judgment and supports Transport's motion for summary judgment.
That the debt originally owed by GHE was for delinquent contributions is not disputed by the funds. See complaint at ¶ 25. The funds argue that the debt originally owed by GHE took on a character apart from a "contribution obligation" when GHE underwent bankruptcy reorganization. However, the funds do not offer any factual or legal support for their proposition; nor do the funds attempt to explain the character of the debt after the reorganization. In short, the funds do not offer an answer to the question, "If the liability is not a contribution obligation, then what is it?" The funds simply assert that the debt was "replaced" after the bankruptcy reorganization. The funds state that "General's obligation to pay contributions to Central States [was replaced with a] distinct contractual undertaking established by the plan." According to the funds, since the original obligation was replaced, the guarantee was for a replacement debt and, therefore, is not a "contribution obligation." See Central States' Reply to Transport at 2. The funds do not, however, characterize the replacement *1413 debt as anything other than "not a contribution obligation." The court finds the argument that the debt changed character so as not to be a "contribution obligation" to be unsupported and unconvincing.
The Settlement Agreement does not require that the company that originally incurred the liability be the same company that is now obligated. The Settlement Agreement simply releases each of the enumerated companies, of which Transport is one, from "all contribution obligations." Settlement Agreement at 4 (emphasis added). The fact that Transport did not originally incur the liability is irrelevant. The liability is an obligation to contribute as those words are plainly used.
The funds have not offered any argument or evidence in support of the proposition that the guarantee was something other than an "obligation" as that word is plainly used, nor have they offered any argument or evidence in support of the proposition that the payments under the guarantee were not "contributions" as that word is plainly used. The funds have merely claimed that they did not intend what the plain language of the Settlement Agreement states.
The funds have not met the required burden to show that judgment is required as a matter of law in their favor. Because the evidence presented by the funds does not conclusively establish that the guarantee of GHE's indebtedness is not a "contribution obligation," the funds' motion for summary judgment on Count III of the complaint is denied.
C. Transport's Motion for Summary Judgment Against the Funds on Count III
Transport argues that it should not be held liable under Count III of the complaint because the guarantee was extinguished as a matter of law when it merged with GHE. Transport has not argued choice of law issues or ERISA preemptive issues in its crossmotion for summary judgment. However, because the guarantee for a delinquent contribution is, as a matter of law, also considered a delinquent contribution, the court does not need to delve into these issues. Laborers' Pension Fund, 999 F.2d at 1211.
Transport's guarantee to pay amounts owed by GHE are "contribution obligations." See Id. A guarantee for delinquent contributions is considered a delinquent contribution for purposes of ERISA. Id. In Laborers' Pension Fund, the Seventh Circuit recognized a pension fund's right to enforce a guarantee under section 515 of ERISA, the provision for "delinquent contributions." Id. Despite the fact that the pension funds in that case were collecting from a party other than the employer who was originally obligated to contribute to those funds, the Seventh Circuit characterized the payments as "delinquent contributions." Id.
In the instant case, the funds seek to enforce a guarantee of GHE's "delinquent contributions." Therefore, applying the rule in Laborers' Pension Fund, the guarantee must also be considered an obligation to pay "delinquent contributions" within the plain meaning of those words. Consequently the Settlement Agreement provision releasing Transport from "all contribution obligations" includes the guarantee obligation to pay delinquent contributions. Therefore, since Transport's guarantee for delinquent contributions is a "contribution obligation," it is released by the Settlement Agreement. Transport has demonstrated that the plain meaning of "contribution obligations" in the Settlement Agreement includes the guarantee and, therefore, Transport's Motion for Summary Judgment with regard to Count III of the funds' complaint is granted.
D. The Funds' Motion for Summary Judgment Against Transport and Transport's Motion for Summary Judgment Against the Funds on the Employer Contribution Claim (Count IV)
In Count IV of the complaint, the funds seek to recover a debt that was: a) originally based on work history reported by GHE, b) replaced by a new debt after GHE went through Chapter 11 bankruptcy, and c) subsequently assumed by Transport when it merged with GHE. In Count IV, the funds present a successor liability argument in *1414 which they state that Transport became an employer as defined by section 3(5) of ERISA (29 U.S.C. § 1002(5)) and, as a result, became liable for the delinquent contributions originally owed by GHE. Because issues of material fact exist as to this count, both motions for summary judgment are denied.
The funds argue that under both Michigan and Ohio law (the state laws that they argue are relevant with regard to this issue), the surviving party of a merger is responsible for all the liabilities of both parties to the merger. Central States' Memorandum in Response to Transport's Motion for Partial Summary Judgment ("Central States' Response") at 7 (citing Mich.Stat. § 450.1724; Ohio Rev.Stat.Ann. § 1701.82(A)(4)). However, Michigan and Ohio laws regarding corporate mergers are preempted in the instant case by section 514 of ERISA (29 U.S.C. § 1144). As has been noted, section 514 is to be broadly construed, and state law which relates to a pension fund is preempted by ERISA. Here, whether Transport assumed the obligations of GHE when the two companies merged is a question directly affecting a pension plan. Thus, any Michigan or Ohio law that may have been relevant is preempted.
Federal common-law associated with ERISA will be applied. The general rule that a successor is not liable for the liabilities of its predecessor is excepted in several circumstances. Upholsterers' Int'l Union Pension Fund v. Artistic Furniture, 920 F.2d 1323, 1329 (7th Cir.1990). "Successors have been held liable where (1) there is an expressed or an implied assumption of liability; (2) the transaction amounts to a consolidation, merger, or similar restructuring of the two corporations; (3) the purchasing corporation is a `mere continuation' of the seller; and (4) the transfer of assets to the purchaser is for the fraudulent purpose of escaping liability for the seller's debts." Id. at 1325 (citing Travis v. Harris Corp., 565 F.2d 443, 446 (7th Cir.1977)).
Transport satisfies the first two exceptions mentioned above. First, it knew of GHE's liability because it guaranteed the liability after GHE's Chapter 11 bankruptcy reorganization. Transport expressly acknowledged the liability in the guarantee agreement. Second, the "transaction" between GHE and Transport did not merely "amount" to a consolidation or merger, it was a merger. Because Transport assumed GHE's liabilities as a matter of law when the two companies merged, the question now is whether the liability was discharged by the Settlement Agreement.
Issues of material fact exist with respect to whether the liability was discharged by the Settlement Agreement. Transport claims that the Settlement Agreement dated November 29, 1989 released it from any liability to pay the GHE debt assumed after the merger. Paragraph 1.B. of the Settlement Agreement releases:
(1) All contribution obligations (including interest, costs and associated penalties) of the companies listed below, and all credits that may be due from the Funds to such companies, through the last date audited by the Funds for each company:
a. Central Transport, Inc.
Settlement Agreement at 4 (emphasis added).
The liabilities released by sub-paragraph (1) of paragraph 1.B. are dependent on the "last date audited by the funds for each company." Id. The funds maintain that this date, with respect to Transport, is December 28, 1986. See Affidavit of Henry Radke ("Radke") at ¶ 3. Radke states that "[p]rior to 1991, Central States had not audited Transport for the period subsequent to December 27, 1986." Id. Although GHE and Transport had merged at the time the Settlement Agreement was signed, in December 1986 GHE and Transport existed as separate companies. Because the companies were separate, GHE, not Transport, was liable for the primary debt. An agreement that released Transport from "all contribution obligations" through December 1986 would not include the primary debt which was still held by GHE. Although Transport's guarantee obligation may have been extinguished by the Settlement Agreement, because the primary debt was still carried by GHE, it could *1415 not have been resolved by sub-paragraph 1.B.(1).
Moreover, sub-paragraph 1.B.(2) of the Settlement Agreement does not release Transport from the liability it assumed when it merged with GHE. The Settlement Agreement releases Transport (among other companies) from
(2) Contribution obligations (including associated interest to date) based on work history reported to the funds by and for the companies identified in Paragraph 1(B)(1) through July 30, 1988....
Settlement Agreement at 4 (emphasis added). Whereas sub-paragraph 1.B.(1) releases "all contribution obligations," sub-paragraph 1.B.(2) qualifies the type of contribution obligations settled with the language: "based upon work history reported to the funds by and for [the companies listed]." Id. (emphasis added). GHE is not one of the companies listed in sub-paragraph 1.B.(1). Id. The debt assumed by Transport was not based upon work history reported to the funds by and for Transport. The debt assumed by Transport was based upon work history reported "by" GHE and "for" GHE prior to its Chapter 11 bankruptcy proceedings. Subparagraph 1.B.(2) of this portion of the Settlement Agreement cannot and does not release Transport from its liability for the GHE primary indebtedness.
The primary indebtedness incurred by GHE could not be released by sub-paragraph 1.B.(1) unless Transport was audited after it merged with GHE and before the parties executed the Settlement Agreement. Because there is a genuine issue of material fact with regard to the date on which the funds last audited Transport, summary judgment with respect to Count IV cannot be granted.
CONCLUSION
The funds' motion for summary judgment against Cartage is granted with respect to Count I of the complaint. Cartage is ordered to pay damages in the amount of $1,944,626.60 to the Pension Fund plus the greater of double interest, or single interest plus liquidated damages, as well as all audit costs and attorneys' fees and costs reasonably incurred by the Pension Fund in connection with this action. Further, Cartage is ordered to pay damages in the amount of $52,504.20 to the Health & Welfare Fund, plus the greater of double interest, or single interest plus liquidated damages, as well as all audit costs and attorneys' fees and costs reasonably incurred by the Health & Welfare Fund in connection with this action.
The funds' Motion for Summary Judgment against Transport is granted with respect to Count I of the complaint. Transport is ordered to pay damages in the amount of $16,563.20 to the Pension Fund plus the greater of double interest, or single interest plus liquidated damages, as well as all audit costs and attorneys' fees and costs reasonably incurred by the Pension Fund in connection with this action. Transport is also ordered to pay damages in the amount of $13,065.60 to the Health & Welfare Fund plus the greater of double interest, or single interest plus liquidated damages, as well as all audit costs and attorneys' fees and costs reasonably incurred by the Health & Welfare Fund in connection with this action.
Transport's Cross Motion for Summary Judgment against the funds is granted with respect to Count III of the complaint. Transport's Cross Motion for Summary Judgment against the funds is denied with respect to Count IV of the complaint.
The funds' Motion for Summary Judgment is denied with respect to Counts III and IV of the complaint.
IT IS SO ORDERED.
NOTES
[1] Where this characterization is inappropriate i.e., where Cartage's memorandum contains arguments specifically related to itself, and where the arguments are unrelated to Transport the court will refer only to Cartage.
[2] Transport has incorporated by reference Cartage's entire memorandum, including this portion of the Memorandum in Opposition to Summary Judgment. However, the arguments advanced by Cartage in this portion of its response brief are not applicable to Transport. The court, therefore, only refers to Cartage with respect to these arguments.
[3] Here, again, although Transport has incorporated by reference Cartage's reply to the motion for summary judgment, Cartage only disputes the calculations that the funds's claim that it (Cartage) owes. The defendant referred to with regard to this issue is, therefore, only Cartage.
[4] Cartage did not submit a Local Rule 12(n) statement admitting or denying the allegations in the funds' Local Rule 12(m) statement. Instead, Cartage submitted its own Local Rule 12(m) statement.
[5] Cartage's figures for these three amounts are: $1,789,628.80 for non-union casuals payable to the Pension Fund, $158,329.00 for audit-revealed delinquencies payable to the Pension Fund, and $53,199.20 for audit-revealed delinquencies payable to the Health & Welfare Fund.
[6] Neither the funds nor Transport has addressed the choice of law issue and in their arguments both have assumed that the court will apply the principle that when the language of a contract is not ambiguous, the language of the contract will be given effect without regard to parol evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322346/ | 634 S.E.2d 439 (2006)
LUKE
v.
LUKE.
No. A06A0216.
Court of Appeals of Georgia.
July 5, 2006.
Reconsideration Denied July 25, 2006.
*440 Michael J. Moore, Warner Robins, for appellant.
Gardner & Garnder, Milton F. Gardner, Jr., Alan W. Thrower, Milledgeville, for appellee.
PHIPPS, Judge.
Mia Luke contests an order awarding Carlton "Pete" Luke visitation with her children under the Grandparent Visitation Statute.[1] Because she has shown no error, we affirm.
Mia Luke and Pete Luke's son divorced in 2002. Mia Luke received sole legal custody of their three children, born in 1998, 1999, and 2001. The children's father received visitation that included every other entire weekend. In 2004, the children's father enlisted in the United States Army for a term of three years and twenty-three weeks, was relocated to Washington state at the time of the hearing in March 2005, and was scheduled for a Summer 2005 deployment to Iraq.
Pete Luke petitioned for court-ordered visitation with his grandchildren. Among other things, he claimed that the children's health or welfare would be harmed without visitation; that the visitation would serve the children's best interests; that the children had developed a strong familial bond with him and his family; and that "with the children's father now serving with the U.S. Army, the children's ties with their paternal family would be virtually destroyed without such visitation."
At the hearing, Pete Luke testified that, both before and after his son joined the Army, he had maintained a relationship with his three grandchildren. In July 2004, Mia Luke informally agreed to allow him visitation with them every first, third, and fifth weekend of the month. The two older children would stay the entire weekend, and the youngest child would visit on Sunday afternoons. During their time together they enjoyed visiting playgrounds, bowling, skating, and other family entertainment. They had twice attended church. Pete Luke testified that he and his two older grandchildren had *441 a close bond; and while he had shared less time with the youngest grandchild, their time together had been positive. During visitation weekends, the children had been with him most of the time, but also had spent "a good bit of time" with his mother and her husband and had bonded with them also. Usually, after picking up the children on Friday evening, he would take them to his mother's home, where they would spend the night. Sometimes, he would also spend Friday night there. He generally spent about four or five hours with the children on Saturday at his mother's home and all day with them on Sunday because his entire family spent that day at his mother's. And other weekends, Pete Luke recalled, he and his grandchildren had spent the whole weekend at his mother's home. He claimed that, because he was divorced, his mother's home was more suitable for the children. Pete Luke testified that his employment in the real estate business rendered his schedule unpredictable. And when work demanded his attention during the children's visits, he arranged either for his mother to come to his home to babysit or for his grandchildren to go to her home. He explained, "[W]e work as a family." Pete Luke testified, "I spend every possible moment I can with my grandchildren, and I make sure that my mother gets every possible moment she can with them, because we love them."
Mia Luke testified that she eventually had misgivings about allowing her children visitation with their paternal relatives based on several incidents. After one visit, her youngest daughter reported to her that "granny had popped her on the face when she tried to open a present." She testified further that Pete Luke's mother had filed a complaint against her with the Department of Family and Children Services (DFCS), reporting that she had refused to permit the children to go with her on a week-long Florida vacation. DFCS opened a case, questioned Mia Luke, conducted a home visit, and then dismissed the case. Mia Luke also stated that, although her children often enjoyed their visits, her older daughter sometimes returned very emotional and questioned why she and her father had divorced and whether her mother loved her. Mia Luke testified that it took time for her daughter to feel secure again. Mia Luke also believed that her children were being "shuffled around" during their visits with Pete Luke, including being left at the homes of the children's stepmother's family members. And Mia Luke was displeased that her children were seldom taken to church during those weekends. Mia Luke testified that she agreed that her children should spend some time with their father's family, but "maybe not overnight and not for a set time, just times where it's convenient" for her children and her. She explained that she was in her last semester of college and working as a student teacher.
The trial court granted Pete Luke visitation with his grandchildren, scheduling visitation for the older two children for the entire second and fourth weekends and for the youngest child from 9:00 a.m. until 5:00 p.m. on the Saturdays of those weekends until she reaches the age of five. At that time, the youngest child would visit with Pete Luke on the same schedule as her siblings. The court ordered that this schedule would continue until the children's father is discharged from the Army, lives within 100 miles of Mia Luke, or resumes his visitation. At that time, Pete Luke's visitation would consist only of the second weekend, from 6:00 p.m. on Friday until 6:00 p.m. on Sunday.
1. Mia Luke contends that the trial court "failed to exercise its discretion and arbitrarily substituted the visitation schedule of the father for that of the paternal grandfather based on evidence that the father was in the military and unable to exercise his visitation, a ground which is irrelevant to the standard required for determining whether grandparent visitation should be allowed." Mia Luke points to the trial court's express finding that the children's father was unable to exercise his visitation rights because of his military service, and asserts that any detrimental impact upon Pete Luke and his family's visitation opportunities caused by the children's father's military service is irrelevant in determining whether to grant visitation to Pete Luke.
*442 The Grandparent Visitation Statute provides that "the court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted, and if the best interests of the child would be served by such visitation."[2] "Further, due process requires that evidence supporting mandated visitation rights must meet the clear and convincing standard of proof."[3] On appeal from an order granting grandparent visitation, we view the evidence in the light most favorable to the trial court's judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the mandated visitation was authorized.[4] We do not weigh the evidence or determine witness credibility, but defer to the trial court's factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.[5]
We agree with Mia Luke that grandparent visitation would not be authorized on the ground that the children's father's military obligations had curtailed Pete Luke's visitation opportunities with his grandchildren. "[A]ny detrimental impact to the grandparents through the loss of visitation opportunities with a grandchild, whether due to the death or divorce of a child's parents, relocation of the family, or other unfortunate circumstances, is irrelevant to the court's determination of whether or not to grant visitation rights to the grandparents."[6] In this case, however, the visitation award contained several findings, pertinently including, "by clear and convincing evidence that the minor children would suffer actual emotional harm unless visitation is granted to [Pete Luke], and that it is in the best interests of the minor children that visitation be granted to the Plaintiff."
Accordingly, the record shows that visitation was granted on the grounds authorized by the Grandparent Visitation Statute.
2. Mia Luke claims the visitation order fails to show that the trial court employed a clear and convincing evidentiary standard and fails to set forth specific written findings as required by the Grandparent Visitation Statute, which mandates the trial court to "make specific written findings of fact in support of its rulings."[7] Mia Luke cites Rainey v. Lange,[8] where the visitation order stated only:
Given the allegations the parents have raised against each other (but without making a finding as to the truth or falsity of any of the allegations), the Court finds that enough issues have been raised that visitation with the (maternal grandparents) is in the child's best interests and will promote the child's well-being and avoid harm to the child's welfare, by way of providing a system of checks and balances.[9]
Rainey concluded that this broad conclusory statement failed to set forth specific findings of fact supporting the trial court's grant of grandparent visitation that would facilitate an intelligent review of the merits of this case.[10] The visitation order was vacated, and the case was remanded for the trial court to employ a clear and convincing evidence standard *443 and enter such written findings if supported by the evidence.[11]
The visitation award in this case, however, was based on the trial court's finding that "the strong, emotional bond between [Pete Luke] and the said minor children is so well established that the emotional welfare and well being of the children would actually suffer unless visitation with [Pete Luke] is granted." And the order contains a statement showing that the trial court employed the clear and convincing evidentiary standard. Thus, Mia Luke has failed to show that the visitation order is deficient as claimed.[12]
3. Mia Luke argues that the trial court's ruling that it was in the children's best interest to grant Pete Luke visitation was not supported by the record. She cites evidence that Pete Luke had not regularly taken her children to church; that Pete Luke's mother had hit one of her daughters;[13] and that the visits had adversely affected her older daughter's emotional state. She claims that her children are "shuffled around" during the visitation and that her relationship with Pete Luke was damaged by his mother's baseless complaint against her to DFCS. In addition, Mia Luke asserts that the trial court failed to consider that forcing visitation over a parent's objection may result in deleterious effects upon the child.
The Grandparent Visitation Statute was enacted to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild, where, as here, a child's parent objects.[14] The statute codifies a standard for the trial courts to utilize in balancing the interests of the child, the rights of the parents, and the wishes of an alienated grandparent.[15] Where a petitioning grandparent meets this standard, a trial court may grant visitation notwithstanding evidence or circumstances that weigh against a grant of visitation.[16]
Here, viewed in the light most favorable to the judgment, Pete Luke's testimony authorized the court's express finding that the children would suffer emotional harm unless visitation was granted.[17] Contrary to Mia Luke's contention, clear and convincing evidence supported the trial court's ruling that visitation with Pete Luke would serve the children's best interests.
4. Mia Luke contends that the trial court erred in granting visitation, asserting that Pete Luke's parents are the real parties in interest and that great-grandparents do not fall within the purview of the Grandparent Visitation Statute.[18] While the evidence shows that Pete Luke has allowed his grandchildren to spend apparently significant time with his parents and has depended upon his mother for babysitting, such evidence does not render the trial court's award erroneous.
5. Mia Luke contests the visitation award because it allows for the children to be out of her home three weekends a month when the children's father resumes his visitation. The Grandparent Visitation Statute authorizes "reasonable" visitation.[19] We cannot conclude that, under the circumstances of this case, the trial court abused its discretion *444 in allowing the grandfather to exercise visitation one weekend a month after the father resumes exercise of his visitation rights.
Judgment affirmed.
RUFFIN, C.J., and SMITH, P.J., concur.
NOTES
[1] OCGA § 19-7-3; see Brooks v. Parkerson, 265 Ga. 189, 454 S.E.2d 769 (1995).
[2] OCGA 19-7-3(c).
[3] Ormond v. Ormond, 274 Ga.App. 869, 870, 619 S.E.2d 370 (2005) (citation, punctuation and footnote omitted).
[4] See In the Interest of T.L., 269 Ga.App. 842, 843(2), 605 S.E.2d 432 (2004); In the Interest of F.C., 248 Ga.App. 675, 549 S.E.2d 125 (2001) (applying standard of review where state interferes with constitutional rights protecting parenting); see also Brooks, supra at 190-193(2)(a), (b), 454 S.E.2d 769 (recognizing that federal and state constitutions protect the right to the custody and control of one's child and that mandated grandparent visitation is a state intrusion upon that right).
[5] See In the Interest of T.L.; In the Interest of F.C., supra.
[6] Hunter v. Carter, 226 Ga.App. 251, 253(1), 485 S.E.2d 827 (1997).
[7] OCGA § 19-7-3(c).
[8] 261 Ga.App. 491, 583 S.E.2d 163 (2003).
[9] Id. at 492, 583 S.E.2d 163.
[10] Id.
[11] Id.
[12] Compare Rainey, supra; Weiss v. Varnadore, 246 Ga.App. 654, 660, 541 S.E.2d 448 (2000) (vacating visitation order, where it was not possible from the state of the record and the order of the court to determine what standard the trial court applied in its order and what evidence or agreement it relied upon in doing so).
[13] The parties have not included in the record a showing of the degree of any injury.
[14] Perrin v. Stansell, 243 Ga.App. 475, 476(1)(a), 533 S.E.2d 458 (2000).
[15] Id. at 476-477, 533 S.E.2d 458.
[16] See OCGA § 19-7-3(c); Perrin, supra.
[17] Compare Hunter, supra at 252-254, 485 S.E.2d 827 (reversing grant of grandparent visitation, where no evidence was presented to support the trial court's finding that the child would be harmed if the grandparents were denied visitation rights).
[18] See OCGA § 19-7-3(a) (defining "grandparent" as "the parent of a parent of a minor child, the parent of a minor's child parent who has died, and the parent of a minor child's parent whose parental rights have been terminated").
[19] OCGA § 19-7-3(c). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322351/ | 634 S.E.2d 88 (2006)
FIRST NATIONAL BANK OF AMES, IOWA
v.
INNOVATIVE CLINICAL & CONSULTING SERVICES, LLC.
No. A03A1767.
Court of Appeals of Georgia.
June 20, 2006.
Reconsideration Denied July 10, 2006.
*89 Powell & Goldstein, William V. Custer IV, Jennifer B. Dempsey, Atlanta, for appellant.
Raiford & Dixon, Tyler C. Dixon, Atlanta, for appellee.
SMITH, Presiding Judge.
In Innovative Clinical & Consulting Svcs. v. First Nat. Bank etc., 279 Ga. 672, 620 S.E.2d 352 (2005), the Georgia Supreme Court affirmed Division 2, disapproved language in Division 3, and reversed Division 1 of our opinion in First Nat. Bank etc. v. Innovative Clinical & Consulting Svcs., 266 Ga.App. 842, 598 S.E.2d 530 (2004). The Supreme Court remanded the case to this court for action not inconsistent with its opinion. On remand, applying our Supreme Court's more expansive construction of OCGA § 9-10-91(1), we conclude that the trial court correctly exercised personal jurisdiction over the Iowa bank. We therefore affirm the trial court's denial of the bank's motion to dismiss.
In Division 1 of our prior opinion, we concluded that the trial court had no personal jurisdiction over the bank under subsection (1) of Georgia's Long Arm Statute, OCGA § 9-10-91(1).[1] In its opinion, the Georgia Supreme Court recognized that "no explicit legislative limiting conditions" were placed upon subsection 1 of OCGA § 9-10-91. It held that just as we may not expand subsection 3 of the statute in conflict with the express limitations placed upon it by the Georgia General Assembly, so we may not constrict subsection 1 of the statute by engrafting upon it limitations the legislature has not enacted. First Nat. Bank, supra, 279 Ga. at 675, 620 S.E.2d 352. The Supreme Court therefore expressly overruled prior decisions "that fail to accord the appropriate breadth to the construction of the `transacting any business' language of OCGA § 9-10-91(1)." Id. at 676, 620 S.E.2d 352.
In so doing, the Supreme Court also recognized that this court, believing "it was bound by prior precedent, . . . did not fully consider whether the trial court had personal jurisdiction over the Iowa bank under OCGA § 9-10-91(1)." First Nat. Bank, supra, 279 Ga. at 676, 620 S.E.2d 352. The Supreme Court therefore vacated Division 1 of our opinion and remanded the case to this court for action consistent with the now-broader scope of OCGA § 9-10-91(1). Id.
Divisions 1 and 3 of our opinion are hereby vacated and the opinion of the Supreme Court made the opinion of this court. As directed, we now consider whether consistent with the maximum extent permitted by procedural due process, the trial court has personal jurisdiction over the Iowa bank.
We conclude, as did the trial court, that it does. Although the bank did not have a physical presence in this state, it is undisputed that the bank had both telephone and written communication with Innovative Clinical & Consulting Services, LLC (ICCS) with regard to the Iowa bank accounts. Without question, those bank accounts were a part of the bank's "business." In the course of that business, when the bank's customer, Med e Fund, failed to make payments on the lease agreement, the bank sought to hold ICCS, a Georgia entity with no connection to Iowa, responsible. Even if the bank did not "regularly" conduct business or engage in a "persistent course of conduct" in Georgia, OCGA § 9-10-91(3), no doubt exists that the bank sought to derive economic benefit from its interstate business activity involving ICCS. To that end, its postal, telephone, and other intangible Georgia contacts suffice to bring it within the purview of OCGA § 9-10-91(1). See generally Aero Toy Store v. Grieves, 279 Ga.App. 515, 631 S.E.2d 734 (2006).
We must also consider whether these acts meet the constitutional standard for minimum contacts. See Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60, 195 S.E.2d 399 (1973). Clearly, the bank's "business" was not brought to Georgia through a "unilateral action" of ICCS. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-475, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). The bank sought out ICCS when its Iowa *90 customer defaulted, and Georgia has an interest, as does every state, in providing its own citizens with a convenient forum for redressing injuries wrought by nonresidents who have sought the state's citizens out for the purpose of business gain. Id. at 473-474, 105 S. Ct. 2174.
Because the bank transacted some business in Georgia, even if only with this one customer, and because that business was sufficient to meet the constitutional standard for minimum contacts with this state, we conclude that the trial court did not err in denying the bank's motion to dismiss for lack of personal jurisdiction.
Judgment affirmed.
RUFFIN, C.J., and MILLER, J., concur.
NOTES
[1] The facts of this case are fully set forth in First Nat. Bank, supra, 266 Ga.App. at 842-843, 598 S.E.2d 530. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3341917/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION RE: MOTION TO STRIKE (Pleading No. 194)
County Federal Savings Loan Association, which is one of eight defendants in this case, has moved to strike counts 8, 9, and 13 on the grounds the bank does not come within the express and implied warranty provisions of the New Home Warranties Act, Gen. Stat. 47-116 et seq., and the implied warranty provisions of the Condominium Act, Gen. Stat.47-74e. The bank has also moved to strike counts 11 and 16 on the ground the Connecticut Unfair Trade Practices Act does not apply to banks. I have denied the motion to strike.
First, the defendant bank claims that the New Home Warranties Act does not apply to its activities. The New Home Warranties Act applies to vendors. The bank contends it is not a vendor within the meaning of the act. A vendor is defined in 47-116 as including "any person engaged in the business of erecting or creating an improvement on real estate . . . ." In paragraph ten of counts 8, 9, and 13, of their amended complaint, the plaintiffs have alleged the following: "all of the defendants acted together in a joint enterprise to design, construct, finance and sell the condominiums to the Connecticut general public for their respective mutual profit." Under this allegation, the plaintiffs may offer evidence to prove that the bank acted as more than just a lending institution. If the plaintiffs prove the bank engaged in the business of erecting or creating an improvement on real estate, the bank would come within the definition of a vendor. Consequently, the plaintiffs have alleged a sufficient factual basis to assert claims under the New Home Warranties Act.
Second, the defendant bank claims that the Condominium Act does not apply to a bank which has acted as a lender. Section 47-74e creates implied warranties which run from the CT Page 2644 declarant and from the contractor, subcontractors, and suppliers. A declarant is defined in 47-68a(m) as "the person or persons who execute the declaration or on whose behalf the declaration is executed."
Paragraph 10 of the 9th count alleges that all the defendants acted together in a joint enterprise to design, construct, finance and sell the condominiums. This allegation sets forth a sufficient factual basis to establish that the declaration was executed on behalf of the bank. Thus, the plaintiffs have sufficiently alleged a claim under the Condominium Act.
Finally, the defendant bank claims that the Connecticut Unfair Trade Practices Act, Gen. Stat. 42-110a et seq., is not applicable to banks. There are conflicting trial court opinions on this issue. Since CUTPA is a remedial statute and should be construed liberally, I adopt the view expressed in Weisman v. Westport Bank Trust Co., 12 C.L.T. No. 23, p. 29 (Superior Court, April 30, 1986, Zoarski, J.) and hold that CUTPA does apply.
The Motion to Strike is denied.
GEORGE N. THIM, JUDGE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1743249/ | 710 N.W.2d 258 (2005)
IN RE ESTATE OF HURLO.
No. 05-0219.
Court of Appeals of Iowa.
December 7, 2005.
Decision without published opinion. Reversed and Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/709482/ | 71 F.3d 884
John Richard Marekv.Harry K. Singletary
NO. 90-6083
United States Court of Appeals,Eleventh Circuit.
Nov 06, 1995
S.D.Fla., 62
F.3d 1295
1
DENIALS OF REHEARING EN BANC. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2261635/ | 861 F.Supp. 115 (1994)
HOSIDEN CORPORATION, Plaintiff,
v.
UNITED STATES, Defendant.
Court No. 91-10-00720. Slip Op. 94-128.
United States Court of International Trade.
August 12, 1994.
*116 Donovan Leisure Newton & Irvine, Peter J. Gartland, Christopher K. Tahbaz, and Fusae Nara, New York City, for plaintiff Sharp Corp.
Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, A. David Lafer, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Marguerite E. Trossevin, Washington, DC, of counsel, for defendant.
Collier, Shannon, Rill & Scott, Paul C. Rosenthal, Robin H. Gilbert, Washington, DC, for defendant-intervenor Advanced Display Mfrs. of America.
MEMORANDUM
GOLDBERG, Judge:
This matter is before the court on a motion for a Writ of Mandamus to Enforce Judgment filed by Sharp Corporation ("Sharp"), one of the plaintiffs in this consolidated action. Sharp seeks a court order directing Susan G. Esserman, Assistant Secretary for Import Administration of the United States Department of Commerce ("Commerce"), to take all actions necessary to implement the final Judgment Order issued by this court in conjunction with its memorandum opinion dated April 14, 1994. Hosiden Corp. v. United States, 18 CIT ___, 852 F.Supp. 1050 (1994).
BACKGROUND
In Hosiden, the court sustained a negative injury determination made upon remand by the United States International Trade Commission ("ITC" or "Commission") concerning electroluminescent ("EL") high information content flat panel displays ("displays") from *117 Japan. In the Judgment Order that accompanied the memorandum opinion, the court ordered Commerce to revoke the antidumping duty order on EL displays within ten days of the date of said Judgment Order.[1] Commerce had previously established a weighted average dumping margin of 7.02 percent for all imports of EL displays. High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 56 Fed.Reg. 32,376, 32,401 (July 16, 1991).
On May 6, 1994, Commerce published a notice in the Federal Register of this court's decision to affirm the ITC's remand determination that no U.S. industry was being materially injured by reason of imports of EL displays from Japan. 59 Fed.Reg. 23,690 (May 6, 1994). Commerce, however, did not revoke the antidumping duty order on EL displays from Japan as instructed by this court's Judgment Order. Instead, Commerce stated that it would revoke the antidumping duty order on EL displays only "absent an appeal, or, if appealed, upon a final decision by the Court of Appeals for the Federal Circuit (CAFC) affirming the CIT." Id. at 23,691. Commerce's notice also stated that it would "continue to suspend liquidation at the current cash deposit rate pending the expiration of the period of appeal of [sic], if appealed, pending a final decision of the CAFC." Id. (citing Timken Co. v. United States, 8 Fed.Cir. (T) 29, 893 F.2d 337 (1990)).
Sharp's motion requests that this court order Commerce to: (1) terminate the collection of cash deposits for estimated antidumping duties on EL displays; (2) suspend liquidation of entries of EL displays; (3) refrain from imposing any further obligation on any party involved in any administrative review by Commerce relating to EL displays; and (4) execute all documents and take all necessary actions to effectuate a revocation of the antidumping duty order imposed on EL displays by the Federal Register notice of September 4, 1991, published at 56 Fed.Reg. 43,741. Sharp's Proposed Order.
DISCUSSION
As an initial matter, the court always retains jurisdiction with respect to the effects of its judgments. See, e.g., Holmes Prods. Corp. v. United States, 17 CIT ___, ___, 822 F.Supp. 754, 756 (1993). This court is authorized to issue a writ of mandamus pursuant to 28 U.S.C. § 1651 (1988). A writ of mandamus may be issued provided the following elements are present: (1) a clear duty on the part of the defendant to perform the act in question; (2) a clear right on the part of the plaintiff to demand the relief sought; and (3) an absence of an adequate alternative remedy. Timken Co. v. United States, 8 Fed.Cir. (T) 29, 31, 893 F.2d 337, 339 (1990) (citation omitted). In the matter presently before the court, the existence of the duty and the right hinge upon a determination of Commerce's duties and obligations that result from the required publication of notice of a CIT decision sustaining a negative ITC injury determination issued upon court-ordered remand. In other words, to determine whether Commerce is entitled to continue collecting cash deposits of estimated antidumping duties or to continue annual administrative reviews pursuant to 19 U.S.C. § 1675(a) pending a final decision in an appeal of a CIT decision sustaining a final negative injury determination made by the ITC on remand, the court must ascertain the legal obligations that result from publication of notice of a court decision that is contrary to Commerce's original final affirmative determination (i.e. a CIT decision upholding the ITC's negative remand injury determination).
According to Commerce's own regulations, publication of an ITC final negative determination requires Commerce to terminate an antidumping investigation "without further comment or action." 19 C.F.R. § 353.20(d) (1993). Furthermore, if Commerce had previously *118 ordered the suspension of liquidation, Commerce must end such suspension upon the date of publication of notice of the negative determination, and order Customs to release any cash deposit or bond.[2]
Commerce, however, argues that it has fully complied with this court's order in Hosiden, in light of relevant precedent established by the Court of Appeals for the Federal Circuit ("CAFC") in Timken Co. v. United States, 8 Fed.Cir. (T) 29, 893 F.2d 337 (1990). Commerce specifically notes that Timken states that "an appealed CIT decision is not the final court decision in the action." Timken, 8 Fed.Cir. (T) at 32, 893 F.2d at 339. Therefore, Commerce is not required by § 1516a(e) to liquidate entries in accordance with an appealed CIT decision. Id. Because there is no way to know what the conclusive decision will be at the time notice of the CIT decision is published, Commerce must suspend liquidation until there is a final and conclusive court decision that decides the matter. Timken, 8 Fed.Cir. (T) at 35, 893 F.2d at 341.[3]
Commerce acknowledges that Timken also declared that if the CIT issues a decision that is incompatible with Commerce's determination, then Commerce must publish notice of that decision within ten days of issuance (i.e. entry of judgment), regardless of the time for appeal or of whether an appeal is taken. Timken, 8 Fed.Cir. (T) at 34, 893 F.2d at 340. Commerce, however, conveniently fails to note that the CAFC further specified that "[u]nder § 1516a(c)(1), the effect of the publication [of notice of the CIT decision] is to indicate that liquidation should no longer take place in accordance with Commerce's determination." Timken, 8 Fed.Cir. (T) at 34, 893 F.2d at 341. Indeed, the strict ten day rule for publication "would not have been imposed on Commerce if Congress had intended to hold in abeyance the ... decisions of [the CIT] ... during the period when an appeal remains a possibility and during the pendency of appellate review." Timken Co. v. United States, 13 CIT 454, 457, 715 F.Supp. 373, 376 (1989), aff'd, Timken Co. v. United States, 8 Fed.Cir. (T) 29, 893 F.2d 337 (1990).
The CAFC in Timken further noted that a CIT decision that is adverse to the agency's determination eviscerates the presumption of correctness that had attached to the agency determination. Timken, 8 Fed. Cir. (T) at 35, 893 F.2d at 341. As the Timken court explained, the legislative history of the antidumping statutory scheme demonstrates that the agency's determination will govern only that merchandise which is "entered prior to the first decision of a court which is adverse" to that determination. Timken, 8 Fed.Cir. (T) at 33, 893 F.2d at 340 (quoting H.R.Rep. No. 317, 96th Cong., 1st Sess. 182 (1979)). See also NTN Bearing Corp. of America v. United States, 8 Fed.Cir. (T) 26, 29, 892 F.2d 1004, 1006 (1989). Furthermore, although "liquidation would proceed in accordance with the [agency] decision under challenge while litigation is proceeding," the Timken court specifically explained that "while litigation is proceeding" is limited to the duration of the proceedings before the CIT. Timken, 8 Fed.Cir. (T) at 33 n. 7, 893 F.2d at 340 n. 7 (citing S.Rep. No. 249, 96th Cong., 1st Sess. 248 (1979)). Once the CIT issues its decision and enters its final judgment, entries made subsequent to that adverse *119 CIT decision are governed by the CIT's decision, and not the agency's determination. Smith Corona Corp. v. United States, 8 Fed.Cir. (T) 180, 186, 915 F.2d 683, 688 (1990) (19 U.S.C. § 1516a(c)(1) clearly indicates that the decision of the CIT is of controlling effect when rendered).
Commerce essentially fails to acknowledge that the Timken court noted that Congress intentionally used the word "final" to convey one meaning for purposes of § 1516a(e), but omitted the word in § 1516a(c)(1) to convey another meaning. Timken, 8 Fed.Cir. (T) at 33, 893 F.2d at 340. Pursuant to § 1516a(e), entries shall be liquidated in accordance with the final, i.e. conclusive, decision in the action, either from the CAFC, the Supreme Court, or through lapse of the allotted period for an appeal of the CIT's decision. Pursuant to § 1516a(c)(1), however, publication of notice of the first decision of a court which is not in harmony with the agency determination indicates that liquidation should no longer take place in accordance with Commerce's determination. The CIT decision must be final, i.e. the court must enter final judgment, in order to require publication and thereby displace Commerce's determination as the controlling decision in the matter. Timken, 8 Fed.Cir. (T) at 33 n. 6, 893 F.2d at 340 n. 6. The Timken court emphatically stated that it would be "nonsensical" to say that a CIT decision entering final judgment does not exist and has no effect until the time for appeal expires or the action is finally and conclusively resolved. Timken, 8 Fed.Cir. (T) at 33, 893 F.2d at 340. The effect of publication of notice of the CIT decision pursuant to § 1516a(c)(1) is to signal an end to the controlling effect of the agency determination, notwithstanding the unexpired period to file an appeal, or the actual pendency of appellate review. Therefore, although Commerce shall suspend liquidation, pursuant to § 1516a(e), pending the final, i.e. conclusive, court decision in the action, such suspension must be in accordance with the CIT decision and not Commerce's determination.
In the instant action, the court issued a decision affirming the ITC's negative remand determination and entered a final judgment.[4] Because the CIT decision was a court decision not in harmony with Commerce's original final determination, Commerce published notice of the CIT's decision to affirm the ITC's negative injury determination within ten days of issuance. Commerce stated that it would suspend liquidation until there is a final decision in the action. Commerce, however, erred in deciding that it would continue to collect estimated antidumping duties at the current cash deposit rate pending the expiration of the period for filing an appeal or pending a final decision by the CAFC. Publication of notice triggered certain obligations on the part of Commerce. Specifically, Commerce was required to: (1) suspend liquidation; (2) discontinue the collection of estimated antidumping duties because the estimated duties was zero in light of this court's affirmance of the ITC's negative injury determination; (3) order the end of any previously ordered suspension of liquidation and instruct the Customs Service to release any cash deposit or bond; and (4) refrain from imposing any further obligation on any party in any administrative review relating to EL displays from Japan. Aside from suspending liquidation, Commerce has failed to satisfy its legal obligations.
*120 CONCLUSION
An agency determination or practice cannot stand undisturbed in the aftermath of an adverse court decision. Commerce is without authority to disregard its obligations resulting from a final CIT decision that establishes the illegality of proceeding in accordance with its original determination, notwithstanding Commerce's displeasure with that court decision or Commerce's skepticism as to the likelihood that the CIT's decision will be affirmed by the CAFC. The court notes that although the factual circumstances of Timken are converse to those presently before the court, the principles of Timken still apply. In Timken, an initial negative antidumping determination was reversed by this court and remanded to the agency; the agency's subsequent affirmative determination on remand was then sustained by this court.[5] In the present action, an initial affirmative antidumping duty determination was reversed and remanded to the agency; the agency's subsequent negative remand determination was then sustained by this court.[6] Contrary to its assertion, Commerce has failed to fully comply with this court's order in Hosiden because of its incomplete reading of Timken. Commerce correctly notes that Timken not only requires Commerce to publish notice of the CIT decision within ten days of issuance, but also requires Commerce to suspend liquidation until there is a final and conclusive court decision in the action. Commerce, however, fails to recognize the effect of publication of notice of an adverse CIT decision. Timken clearly states that the publication of notice of a CIT decision adverse to Commerce's determination signals the end of liquidation in accordance with Commerce's determination; instead, as of the date of publication, entries are to be made in accordance with this court's decision. Furthermore, Commerce's regulations unequivocally require Commerce to terminate its investigation "without further comment or action" upon publication in the Federal Register of notice of the ITC's negative final determination. 19 C.F.R. § 353.20(d) (1993). Commerce has failed to comply with this court's April 14, 1994 Judgment Order, as well as its own regulations. For the foregoing reasons, the court grants plaintiff Sharp's Motion for a Writ of Mandamus to Enforce Judgment.
ORDER
Upon reading the Motion for a Writ of Mandamus to Enforce Judgment filed by plaintiff Sharp Corporation ("Sharp"), defendant's opposition thereto, and the opposition filed by defendant-intervenor Advanced Display Manufacturers of America ("ADMA"); upon consideration of all other papers and proceedings had herein, and upon due deliberation, it is hereby
ORDERED that Sharp's Motion for a Writ of Mandamus to Enforce Judgment is GRANTED; it is further
ORDERED that, pending further order of this court, or "the final court decision in this action" within the meaning of Section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a(e) (1988), Susan G. Esserman, or such person acting in the capacity of Assistant Secretary for Import Administration of the United States Department of Commerce, shall immediately take such action necessary to permit electroluminescent high information content flat panel displays and display glass therefor from Japan ("EL displays") to be *121 imported without cash deposits for estimated antidumping duties; it is further
ORDERED that, pending further order of this court, or "the final court decision in this action" within the meaning of Section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a(e) (1988), Susan G. Esserman, or such person acting in the capacity of Assistant Secretary for Import Administration of the United States Department of Commerce, shall order the end of any previously ordered suspension of liquidation of EL displays and instruct the Customs Service to release any cash deposit or bond; it is further
ORDERED that, pending further order of this court, or "the final court decision in this action" within the meaning of Section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a(e) (1988), Susan G. Esserman, or such person acting in the capacity of Assistant Secretary for Import Administration of the United States Department of Commerce, shall suspend the liquidation of entries of EL displays in accordance with this court's Preliminary Injunction Order dated January 20, 1994; it is further
ORDERED that, pending further order of this court, or "the final court decision in this action" within the meaning of Section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a(e) (1988), Susan G. Esserman, or such person acting in the capacity of Assistant Secretary for Import Administration of the United States Department of Commerce, shall refrain from imposing any further obligation on any party in any review by the Department of Commerce under Section 751 of the Tariff Act of 1930, 19 U.S.C. § 1675 (1988), relating to EL displays; and it is further
ORDERED that, pending further order of this court, or "the final court decision in this action" within the meaning of Section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a(e) (1988), Susan G. Esserman, or such person acting in the capacity of Assistant Secretary for Import Administration of the United States Department of Commerce, shall execute all documents and take all necessary actions to effectuate the revocation of the antidumping duty order imposed on EL displays by the Federal Register notice of September 4, 1991, published at 56 Fed.Reg. 43,741.
NOTES
[1] Hosiden Judgment Order at 2. This order states, in relevant part:
[It is] ORDERED that, based upon the ITC's determination on remand, the United States Department of Commerce ("Commerce") shall revoke the antidumping duty order on EL high information content flat panel displays and display glass therefor from Japan, said order having been published at 56 Fed.Reg. 43,741, 43,742 (Sept. 4, 1991), within 10 days of the date of this Judgment.
[2] 19 C.F.R. § 353.20(d) (1993) states in full:
(d) Effect of negative final determination. An investigation terminates, without further comment or action, upon publication in the Federal Register of [Commerce's] or the Commission's negative final determination. If [Commerce] previously ordered suspension of liquidation, [Commerce] will order the suspension ended on the date of publication of the notice of negative final determination and will instruct the Customs Service to release any cash deposit or bond.
[3] The court notes that Sharp does not dispute that liquidation should continue to be suspended. Sharp's proposed order, in fact, states that "pending further order of this Court or `the final court decision in this action' within the meaning of 19 U.S.C. § 1516a(e), [Commerce] shall suspend the liquidation of entries of EL displays in accordance with this Court's Preliminary Injunction Order dated January 20, 1994." Sharp's Proposed Order at 2. Instead, Sharp contests Commerce's decision to continue collecting cash deposits of estimated antidumping duties on imports of EL displays from Japan, and to continue its administrative reviews pursuant to 19 U.S.C. § 1675(a).
[4] The court notes that the instant action is clearly distinguishable from NTN Bearing Corp. of America v. United States, 8 Fed.Cir. (T) 26, 29, 892 F.2d 1004, 1006 (1989). In NTN Bearing, the CAFC held that entry of partial summary judgment is not a final decision such that it affects the administrative handling of entries of merchandise at issue, i.e. the collection of estimated antidumping duties.
Furthermore, the court notes that the NTN Bearing court specifically declined to resolve the issue of whether a final CIT decision was "final" for purposes of terminating the operation of the agency determination. NTN Bearing, 8 Fed.Cir. (T) at 29 n. 4, 892 F.2d at 1006 n. 4. Two weeks after NTN Bearing was decided, the same three-judge CAFC panel issued Timken. The court finds that Timken clearly states that a CIT decision entering final judgment adverse to an agency determination is indeed a court decision that, pursuant to § 1516a(c)(1), indicates that the liquidation and administrative handling of entries will no longer continue in accordance with Commerce's determination.
[5] In Timken, Commerce excluded a defendant-intervenor from the scope of its original final affirmative antidumping determination. Timken, 13 CIT at 455, 715 F.Supp. at 374. The CIT found error with certain aspects of Commerce's scope determination and remanded to Commerce. Upon remand, Commerce recalculated its dumping margins consistent with the court's instructions and established a 4.69 percent dumping margin for the previously excluded defendant-intervenor. The CIT affirmed Commerce's remand determination and entered final judgment dismissing the action.
[6] In the instant action, the ITC made an affirmative injury determination and Commerce established a dumping margin of 7.02 percent for EL displays from Japan. On review, this court found error with certain aspects of the ITC determination and remanded to the ITC. Upon remand, the ITC determined that imports of EL displays from Japan had not caused material injury to the domestic industry. This court affirmed the ITC's negative remand injury determination, and entered final judgment dismissing the action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322407/ | 105 Ga. App. 853 (1962)
126 S.E.2d 278
HARROLD
v.
THE STATE.
39455.
Court of Appeals of Georgia.
Decided April 26, 1962.
Rehearing Denied May 3, 1962.
*854 Al Jennings, for plaintiff in error.
George D. Lawrence, Solicitor-General, contra.
JORDAN, Judge.
1. Special ground 1 of the amended motion for new trial, which contends that a confession was illegally obtained from the defendant at a time when the defendant had been denied his constitutional right to benefit of counsel, presents no question for determination, for it appears from the record that the defendant was represented by counsel on the trial of this case and that no attack was made upon the alleged "confession" at the time it was offered in evidence. The time to object to said evidence, and thus raise the question of the alleged denial of the defendant's constitutional rights, was on the trial of the case and not for the first time in the motion for new trial. Frashier v. State, 217 Ga. 593 (124 SE2d 279); Harrold v. State, 105 Ga. App. 555 (125 SE2d 217). As stated in the Harrold case, supra, the situation presented here is distinguishable from that present in such cases as Fair v. Balkcom, 216 Ga. 721 (119 SE2d 691), where a writ of habeas corpus was sought because the defendant was not represented by counsel at any time until after judgment.
2. The trial court did not err in admitting into evidence over objection the State's exhibits numbered 28, 29 and 30, as contended in special grounds 2, 3, and 5. There was some evidence connecting these articles with the matter under investigation, and as stated in Talbotton R. Co. v. Gibson, 106 Ga. 229, 236 (32 S.E. 151), "Evidence which is only indirectly relevant to the issue on trial, but which tends somewhat to illustrate it and to aid the jury in arriving at the truth of the matter, should be admitted."
3. Special ground 5 contends that the trial court erred in refusing to allow the defendant to be sworn as a witness. While *855 it is contended that various enumerated constitutional rights of the defendant were violated by the refusal to allow him to be sworn, no direct constitutional attack was made on Code § 38-415 (See Harrold v. State, 217 Ga. 612, 124 SE2d 73), and the record in this case discloses that the trial court accorded the defendant the right to have his counsel elicit his statement from him by examination in accordance with the recent decision of the United States Supreme Court in Ferguson v. Georgia, 365 U.S. 570 (81 SC 756, 5 LE2d 783). This ground is therefore without merit.
4. The evidence in this case is sufficient to authorize the verdict and the general grounds and special ground 6, which is merely an elaboration of the general grounds, are without merit. The jury was fully authorized to find that certain incriminatory admissions attributed to the defendant and introduced into evidence without objection were freely and voluntarily made, and there is no merit to the contention that the defendant's conviction was based upon a "confession" illegally obtained from him.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322416/ | 676 S.E.2d 228 (2009)
MITCHELL
v.
The STATE.
No. S09A0238.
Supreme Court of Georgia.
April 28, 2009.
*229 Jennifer R. Burns, Savannah, for appellant.
Spencer Lawton, Jr., Dist. Atty., Jennifer P. Guyer, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Christopher R. Johnson, Asst. Atty. Gen., for appellee.
SEARS, Chief Justice.
In 2007, a Chatham County jury convicted William C. Mitchell of felony murder and aggravated assault for beating and strangling his estranged wife to death in a motel room they were sharing. Mitchell appeals on the sole ground that the evidence presented at trial was insufficient as a matter of law to support the convictions. Finding no merit in this argument, we affirm.[1]
In examining a jury verdict, we view the evidence in the light most favorable to the jury's conclusion.[2] Viewed in this light, the evidence presented at trial showed that Mitchell and his wife had a violent relationship, they were both heavy drinkers, and they were staying at a low-rent motel in Pooler despite the fact that Mitchell's wife had recently filed for divorce. Mitchell's wife ended up dead on the floor of the motel room with Mitchell present. The body was cold to the touch by the time police and paramedics arrived, and Mitchell, by his own admission, was the only one who had been in the room with her.
The medical examiner testified that the cause of death was manual strangulation preceded by a serious beating. Mitchell had a history of violence towards his wife, and he confessed to a fellow inmate that he strangled his wife unconscious, and then strangled her to death, because he suspected her of cheating on him when she came back to the motel room drunk at 3:00 a.m. The 911 operator, the medical examiner, the lead detective, the treating paramedic, the first officer on the scene, and the victim's sister all testified at trial, as did the fellow inmate to whom Mitchell confessed. The jury was entitled to credit their testimony and find Mitchell guilty of beating and strangling his wife to death.
Judgment affirmed.
All the Justices concur.
NOTES
[1] Mitchell committed his crimes on April 21, 2004. A Chatham County grand jury indicted him on May 25, 2005. On August 21, 2007, after a two-day trial, the jury convicted Mitchell of felony murder and the underlying felony of aggravated assault. The aggravated assault conviction merged into the felony murder conviction, OCGA § 16-1-7(a)(1), and the trial court sentenced Mitchell to life in prison. Mitchell filed a motion for new trial and amended motion for new trial on September 10, 2007, and April 29, 2008, respectively. Following a hearing, the trial court denied the motion on May 8, 2008. The trial court granted Mitchell's motion for permission to pursue an out-of-time appeal, and he then filed a timely notice of appeal. The case was docketed on October 22, 2008, and submitted for decision on the briefs.
[2] Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ("[T]he relevant question 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 beyond a reasonable doubt."). See Schlup v. Delo, 513 U.S. 298, 330, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995) ("The Jackson standard, which focuses on whether any rational juror could have convicted, looks to whether there is sufficient evidence which, if credited, could support the conviction.... [U]nder Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322409/ | 106 Ga. App. 367 (1962)
126 S.E.2d 906
BAGWELL
v.
CITY OF GAINESVILLE.
39449.
Court of Appeals of Georgia.
Decided July 2, 1962.
Rehearing Denied July 18, 1962.
Herbert B. Kimzey, Kimzey & Kimzey, for plaintiff in error.
Kenyon, Kenyon & Gunter, William B. Gunter, contra.
BELL, Judge.
Plaintiff brought this action against the City of Gainesville alleging that on the designated date he was an owner of a certain hatchery and other equipment located just beyond the corporate limits of the city; that operation of the hatchery required the use of equipment using water; that defendant suddenly and without warning cut off all water coming to the premises of the plaintiff; about three hours later plaintiff's premises caught fire, and he immediately called the defendant requesting that the water be turned on so the fire could be extinguished which defendant failed and refused to do, causing the total destruction of plaintiff's hatchery and equipment. Other allegations charged that the defendant failed and refused to permit any of its available fire equipment to extinguish the fire; and that the defendant had promised and agreed to furnish all necessary water for the use of his hatchery and to extinguish any fire which might originate therein. The exception is to the sustaining of a general demurrer to the petition. Held:
1. It is clear that a municipality in operating a fire department is performing a governmental function, and it is elementary that there is no liability for damages to private individuals resulting from the improper performance or non-performance of a governmental function. Wright v. City Council of Augusta, 78 Ga. 241 (6 ASR 256); Banks v. City of Albany, *368 83 Ga. App. 640 (64 SE2d 93); Clay v. City of Rome, 74 Ga. App. 754 (41 SE2d 337); Davis v. City of Rome, 23 Ga. App. 188 (3) (98 S.E. 231); Edmondson v. Town of Morven, 41 Ga. App. 209 (6) (152 S.E. 280); Code §§ 69-301 and 69-307.
It necessarily follows that so much of the petition as sought to impose liability upon the city for refusal to dispatch its fire-fighting equipment to extinguish the fire did not delineate any actionable liability.
2. Paragraph 11 of the petition alleges: "Plaintiff shows that he was not in arrears with any payment of any charges for water and that said defendant had promised and agreed to furnish him all necessary water for the use of his hatchery and to extinguish any fire that might originate therein." This paragraph is susceptible to two constructions. One is that the defendant agreed to furnish the plaintiff all necessary water for the use of his hatchery and agreed to extinguish any fire that might originate therein. The other construction is that the defendant promised to furnish necessary water for the hatchery and to furnish necessary water to extinguish any fire that might originate therein. Under either construction the agreement on the part of the city to extinguish fires or to furnish water for that purpose was in the exercise of a governmental function, in connection with which the city is not liable for damages. Wright v. City Council of Augusta, 78 Ga. 241, supra; Holloway v. Macon Gas Light &c. Co., 132 Ga. 387, 397 (64 S.E. 330); Black v. Columbia, 19 S.C. 412 (45 AR 785); Thompson v. Mayor &c. of Calhoun, 20 Ga. App. 297 (93 S.E. 72); and 163 A.L.R. 348.
In the absence of an allegation that the plaintiff could have extinguished the fire if the city had furnished water necessary for the ordinary needs of the hatchery as the city was obligated to do by a contract between the parties, the petition does not state a case of action.
The trial court properly sustained the general demurrer to the petition.
Judgment affirmed. Felton, C. J., and Hall, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322404/ | 106 Ga. App. 9 (1962)
126 S.E.2d 305
CALLAWAY MILLS COMPANY
v.
YATES.
39432.
Court of Appeals of Georgia.
Decided May 9, 1962.
B. J. Mayer, for plaintiff in error.
Richter & Birdsong, A. W. Birdsong, Jr., contra.
HALL, Judge.
The findings of fact and award of the State Board of Workmen's Compensation were supported by the evidence. There was evidence before the board that the deceased had previously been hospitalized and treated for a heart condition and arteriosclerosis, and took medications for a hurting in his chest; that before leaving work at about 8:30 on a Friday evening he told a fellow worker that "he was mighty tired"; that when he reached home he told his wife that he had had a *10 pain in his chest about 6:00 while working and had not been "easy" since, and that he was hurting in his arms and chest; that it appeared to his wife that he was suffering and was having severe pains when he came in from work and he did not "get rested or easy" until around midnight. A medical expert testified that the best diagnosis from the history, as to what the deceased died from, would be coronary occlusion with coronary thrombosis, and that he believed the deceased had a coronary occlusion on Friday night. In answer to a hypothetical question as to whether the deceased's "exertion after the first attack of pain in the mill contributed to bringing about what you thought was a coronary occlusion," the medical expert testified, "I certainly think it did." "If the employment of the employee contributes to the injury it is an accident under our compensation law and is compensable, it matters not what combined with the employment to produce it. Where the work of an employee contributes to an injury it is accidental, if not coming under one or more of those exceptions named in our statutes, even if the work done is usual and done in the customary manner . . . or whether the work attempted is too great for the man undertaking the work, whatever the degree of exertion, or the condition of health." Fidelity &c. Co. v. Adams, 70 Ga. App. 297, 298 (28 SE2d 79). U. S. Fidelity &c. Co. v. Doyle, 96 Ga. App. 745 (101 SE2d 600); Manufacturers Cas. Co. v. Badgett, 93 Ga. App. 449 (91 SE2d 861); Georgia Power Co. v. Reid, (87 Ga. App. 621 (74 SE2d 672); Hartford Accident &c. Co. v. Waters, 87 Ga. App. 117 (73 SE2d 70); Bussey v. Globe Indem. Co., 81 Ga. App. 401 (59 SE2d 34); Lumbermen's Mutual Cas. Co. v. Bridges, 81 Ga. App. 395 (58 SE2d 849); City of Atlanta v. Crouch, 91 Ga. App. 38 (84 SE2d 475); Davison-Paxon Co. v. Ford, 88 Ga. App. 890 (78 SE2d 257); Liberty Mutual Ins. Co. v. Elrod, 102 Ga. App. 548 (116 SE2d 890); Georgia Marble Co. v. McBee, 90 Ga. App. 406 (83 SE2d 253).
The decision in Callaway Mills Co. v. Hurley, 104 Ga. App. 811 (123 SE2d 7), cited by the defendant, is not in conflict with this decision. There this court merely held that "it was within the province of the board, as a fact-finding body, to give no weight to" certain medical testimony. The medical *11 testimony in the present case was sufficient to support a finding that the deceased died of a coronary occlusion, and that "exertion expended in the performance of his employment duties" was a contributing factor. Aetna Cas. &c. Co. v. Pulliam, 99 Ga. App. 406 (108 SE2d 823).
The judgment of the superior court, modifying the award to correct a mathematical error in the amount of weekly compensation, and otherwise affirming the award of the board, is hereby affirmed. Felton, C. J., and Bell, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322412/ | 676 S.E.2d 764 (2009)
GROGAN
v.
The STATE.
No. A08A1825.
Court of Appeals of Georgia.
March 17, 2009.
Reconsideration Denied April 1, 2009.
Larry L. Duttweiler, Lawrenceville, James C. Bonner, Jr., Athens, for appellant.
Lee Darragh, Dist. Atty., Lindsay H. Burton, Asst. Dist. Atty., for appellee.
DOYLE, Judge.
A Hall County jury found Anthony L. Grogan guilty of family violence battery,[1] for which he was sentenced to a term of five years, with three years to serve in confinement, based on a recidivism provision in the battery statute addressing family violence.[2] Grogan appeals, contending that the trial court erroneously enhanced his family violence battery sentence from a misdemeanor to a felony based on a previous conviction of family violence battery. Specifically, Grogan argues that the previous conviction (arising from a guilty plea) was based on a defective *765 indictment that omitted an essential element of family violence battery and was not, therefore, a prior family violence battery conviction for sentence enhancement purposes, but rather merely a conviction for simple battery. For the reasons that follow, we affirm.
The undisputed record shows that in May 2005, Grogan was indicted for aggravated assault, family violence battery, and obstruction of an emergency call. Grogan subsequently agreed to a negotiated plea of guilty to one count of simple assault and one count of family violence battery (with the call obstruction nolle prossed). Grogan was sentenced for misdemeanors on both counts.
In August 2005, Grogan was indicted for false imprisonment and family violence battery, and, following his not guilty plea, a jury found Grogan guilty in 2008 as to the family violence battery count. Prior to sentencing, the State submitted a letter regarding sentencing, arguing that, in light of Grogan's prior guilty plea to family violence battery, Grogan should be sentenced under OCGA § 16-5-23.1(f)(2), which provides that a second offense of family violence battery is considered a felony offense.
In support of its argument, the State provided the prior family violence battery conviction and the hearing transcript showing that Grogan voluntarily pleaded guilty to family violence battery. Following a hearing in which the trial court rejected Grogan's argument that the prior conviction was based on a flawed indictment, the court sentenced Grogan as a felon in the second family violence battery conviction.
On appeal, Grogan argues that his 2006 guilty plea could not constitute a family violence battery conviction because the indictment for that offense failed to contain an essential element of family violence battery (i.e., the indictment failed to allege the special relationship to the victim which converted the battery into family violence battery).[3] Therefore, Grogan asserts that the trial court erred by relying on the 2006 conviction to enhance the sentence for his 2008 conviction. However, this argument is procedurally flawed, and we need not reach the merits here.
"While a plea of guilty waives all defenses known and unknown, the defendant does not waive his right to claim that the indictment itself charges no crime.[4] A general demurrer challenging the validity of the [prior] indictment may be raised at any time, but not in any proceeding."[5]
When an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law and . . . no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered . . ., the accused's proper remedy is a motion in arrest of judgment or habeas corpus.[6]
Therefore, as Grogan failed to challenge the indictment to which he pleaded guilty, his remedy is so limited.[7]
*766 Looking at the substance of Grogan's argument,[8] it is apparent that he essentially asserts a facial defect in the prior indictment that the prior indictment failed to allege an essential element of family violence battery which is cognizable as a motion in arrest of judgment.[9] However, such a motion must have been filed within the same term of court in which the March 2006 judgment was entered, so any such motion made at Grogan's January 2008 sentencing hearing was untimely.[10]
Grogan's claim is however cognizable in a habeas proceeding,[11] but the present context cannot be construed to be a habeas proceeding because the claim was urged during the sentencing phase of a criminal case on the subsequent offense (when Grogan was not yet incarcerated for that offense[12]), and it was not filed in the county where he is presently incarcerated but instead was argued in the county where he was convicted and sentenced.[13] Nor is the claim valid as an extraordinary motion for new trial because that remedy is not available to one who pleaded guilty.[14]
Accordingly, we need not reach the merits of Grogan's claim. Because the trial court relied on a prior conviction of family violence battery as authorized by OCGA § 16-5-23.1(f)(2), we affirm.
Judgment affirmed.
ANDREWS, P.J., and BERNES, J., concur.
NOTES
[1] OCGA § 16-5-23.1(f).
[2] See OCGA § 16-5-23.1(f)(2).
[3] OCGA § 16-5-23.1(f) provides that
[i]f the offense of battery is committed between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household, then such offense shall constitute the offense of family violence battery. . . .
See Meja v. State, 232 Ga.App. 548, 549(1), 502 S.E.2d 484 (1998).
[4] It is undisputed that the prior indictment charges Grogan with the basic elements of battery, so Grogan does not argue that the prior indictment fails to charge him with any crime. He only argues that it failed to charge him with the necessary elements of family violence battery. However, because the sentence enhancement issue urged on appeal would turn on whether Grogan was charged with family violence battery at all, we assume without deciding that Grogan's argument is functionally the same as a typical "missing element" general demurrer.
[5] (Footnote omitted.) Fleming v. State, 276 Ga. App. 491, 494(2), 623 S.E.2d 696 (2005). See also Motes v. State, 262 Ga.App. 728, 729, 586 S.E.2d 682 (2003).
[6] McKay v. State, 234 Ga.App. 556, 559(2), 507 S.E.2d 484 (1998). See also Harris v. State, 258 Ga.App. 669, 671(1), 574 S.E.2d 871 (2002) ("[a] motion in arrest of judgment or habeas corpus are the only remedies available when no demurrer to the indictment is interposed before judgment is entered on the verdict").
[7] Even if we were to consider Grogan's claim as a motion to withdraw a guilty plea, it fails.
During the term in which they are rendered, judgments of criminal conviction are in the breast of the trial court and may, therefore, be vacated for good cause shown. However, after the original term has passed, a motion to vacate and set aside the judgment is not an appropriate remedy in a criminal case. This rule applies equally to a withdrawal of a plea; otherwise, there would be no limit to time to withdraw a plea and no end to the case.
(Citations and punctuation omitted.) State v. James, 211 Ga.App. 149, 149-150(2), 438 S.E.2d 399 (1993).
[8] See Motes, 262 Ga.App. at 729, 586 S.E.2d 682.
[9] See Fleming, 276 Ga.App. at 494-495(2), 623 S.E.2d 696; Motes, 262 Ga.App. at 729, 586 S.E.2d 682.
[10] See OCGA § 17-9-61(b); Mitchell v. State, 282 Ga. 416, 418(3), 651 S.E.2d 49 (2007); Fleming, 276 Ga.App. at 495(2), 623 S.E.2d 696; Motes, 262 Ga.App. at 729, 586 S.E.2d 682. See also OCGA § 15-6-3(26)(B) (Hall County Superior Court has four terms of court each year).
[11] See Harris, 258 Ga.App. at 671(1), 574 S.E.2d 871.
[12] Grogan's year-long probation sentence, imposed in March 2006, on the prior misdemeanor family violence battery had been completed by the time of the January 2008 sentencing hearing.
[13] See Fleming, 276 Ga.App. at 495(2), 623 S.E.2d 696.
[14] See id.; Manry v. State, 226 Ga.App. 445, 447, 487 S.E.2d 80 (1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322408/ | 126 S.E.2d 58 (1962)
257 N.C. 452
STATE
v.
Lacy Mathew THOMPSON.
No. 724.
Supreme Court of North Carolina.
June 15, 1962.
*59 Clarence Ross, B. F. Wood, Graham, W. R. Dalton, Burlington, for defendant-appellant.
T. W. Bruton, Atty. Gen., and Charles D. Barham, Jr., Asst. Atty. Gen., for the State.
BOBBITT, Justice.
Defendant, in his case on appeal, noted five exceptions to the court's charge. Assignments of Error Nos. 1 and 2, based on Exceptions Nos. 1, 2, 4 and 5, attack the charge on the ground the court, in reviewing what defendant's evidence tended to show, did not refer specifically to certain portions of defendant's testimony. "The recapitulation of all the evidence is not required under G.S. § 1-180, and nothing more is required than a clear instruction which applies the law to the evidence and gives the position taken by the parties as to the essential features of the case." State v. Thompson, 226 N.C. 651, 39 S.E.2d 823. The court's charge complies with this statutory requirement and Assignments of Error Nos. 1 and 2 are overruled.
Assignment of Error No. 3, based on Exception No. 3, attacks this excerpt from the charge: "Now if the State has satisfied you beyond a reasonable doubt that the defendant on the occasion in question was operating a motor vehicle on the public highway of this State, or a public street of the City of Graham at a time when he had drunk a sufficient quantity of intoxicating beverage to cause him to lose the normal control of his mental or bodily faculties, either one or the other, to such an extent that there was an appreciable impairment of either one or both, then it would be your duty to return a verdict of Guilty as Charged in the Warrant."
Defendant asserts the quoted excerpt is erroneous because the court "permitted the jury to find that the defendant was under the influence of intoxicating beverages when there was no evidence in the record that his intoxication was due to any intoxicating beverages, and permitted the jury to find that the street in Graham was a public street or highway when there was no evidence to that effect * * *." Defendant undertakes, by this assignment of error, to challenge the sufficiency of the State's evidence to warrant submission to the jury. As in State v. Gaston, 236 N.C. 499, 73 S.E.2d 311, defendant did not move for a compulsory nonsuit under G.S. § 15-173, or tender to the court any request for instructions to the jury, or object in any way to any of the proceedings of the superior court preceding the return of the verdict. However, apart from defendant's failure to raise and present the question in *60 apt time and manner, consideration of the evidence in the light most favorable to the State impels the conclusion it was sufficient to warrant submission to the jury with reference to the matters referred to in Assignment of Error No. 3 and otherwise. Hence, Assignment of Error No. 3 is overruled.
Defendant's Assignment of Error No. 4 is directed "to the entry and signing of the judgment." The appeal itself is considered an exception to the judgment and any other matter appearing on the face of the record. "And the record, in the sense here used, refers to the essential parts of the record, such as the pleadings, verdict and judgment." Gibson v. Central Mfr's Mut. Insurance Co., 232 N.C. 712, 715, 62 S.E.2d 320, and cases cited. "An exception to a judgment raises the question whether any error of law appears on the face of the record." Moore v. Owens, 255 N.C. 336, 338, 121 S.E.2d 540; State v. Beam, 255 N.C. 347, 121 S.E.2d 558.
In this Court, defendant moved "to arrest the judgment for that the warrant charges the defendant, disjunctively, with having been under the influence of mutually inclusive substances without stating which of the respective commandments of the statutes he violated."
We now consider the vital question presented by defendant's appeal, namely, whether error of law appears on the face of the record.
A statute, codified as § 14-387 in the General Statutes of 1943, provided: "Any person who shall, while intoxicated or under the influence of intoxicating liquors or bitters, morphine or other opiates, operate a motor vehicle upon any public highway or cartway or other road, over which the public has a right to travel, of any county or the streets of any city or town in this State, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than fifty dollars or imprisoned not less than thirty days, or both, at the discretion of the court, and the judge shall upon conviction, deny said person or persons the right to drive a motor vehicle on any of the roads defined in this section for a period of not more than twelve months nor less than ninety days." This statute was repealed by Chapter 635 of the Session Laws of 1945.
The statute codified as G.S. § 20-138 has been in full force and effect since its enactment in 1937. It provides: "It shall be unlawful and punishable, as provided in § 20-179, for any person, whether licensed or not, who is a habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs, to drive any vehicle upon the highways within this State."
The warrant, while it contains no reference to any specific statute or town ordinance, discloses on its face that it was drafted in the language of former G.S. § 14-387. Even so, the conduct charged in the warrant is a violation of G.S. § 20-138. The fact the warrant contains no reference to G.S. § 20-138 is immaterial. State v. Smith, 240 N.C. 99, 81 S.E.2d 263. One purpose of Chapter 635, Session Laws of 1945, which relates to many sections of the General Statutes, was to eliminate unnecessary duplications. In our opinion, and we so decide, the warrant was sufficient to charge defendant with operating a motor vehicle upon the public streets of Graham while "under the influence of intoxicating liquor or narcotic drugs," the language of G.S. § 20-138.
G.S. § 20-138 creates and defines defines three separate criminal offenses. Under its provisions, it is unlawful and punishable as provided in G.S. § 20-179 for any person, whether licensed or not, (1) who is a habitual user of narcotic drugs, or (2) who is under the influence of intoxicating liquor, or (3) who is under the influence of narcotic drugs, to drive any *61 vehicle upon the highways within this State. Here, the warrant, in a single count, charges alternatively, that is, in the disjunctive, the commission by defendant of the second or of the third criminal offense created and defined by G.S. § 20-138. See State v. Helms, 247 N.C. 740, 102 S.E.2d 241.
In State v. Williams, 210 N.C. 159, 185 S.E. 661, an indictment, based on G.S. § 90-88, charged in one count, in the disjunctive, several separate and distinct criminal offenses. This Court held the defendant's motion to quash, aptly made, should have been allowed. Here, defendant did not at any time move to quash the warrant. Moreover, defendant's motion in arrest of judgment was first made in this Court.
With reference to the drafting of criminal warrants based on violations of G.S. § 20-138, it is appropriate to emphasize: If it be intended to charge only one of the criminal offenses created and defined by G.S. § 20-138, e. g., the operation of a motor vehicle upon the public highway within this State while under the influence of intoxicating liquor, the warrant should charge this criminal offense and no other. If it be intended to charge two or more of the criminal offenses created and defined in G.S. § 20-138, the warrant should contain a separate count, complete within itself, as to each criminal offense.
In a similar factual situation, this Court held: "By going to trial without making a motion to quash, he (the defendant) waived any duplicity which might exist in the bill." State v. Merritt, 244 N.C. 687, 94 S.E.2d 825, and cases cited.
In holding defendant has waived the right to attack the warrant on the ground of duplicity, we are not unmindful that defendant was not represented by counsel at trial. Even so, every feature of the trial discloses both the State and defendant considered this criminal prosecution related solely to whether defendant was operating an automobile on the public street of Graham while under the influence of intoxicating liquor. The evidence and charge do not refer in any way to narcotic drugs. In short, the point is technical; and we perceive no prejudice to defendant.
Even so, defendant, relying on State v. Albarty, 238 N.C. 130, 76 S.E.2d 381, contends the verdict, "guilty as charged in the warrant," is invalid for uncertainty in that it is not sufficiently definite and specific to identify the crime of which defendant was convicted. At first impression the point seems well taken; but, as indicated below, consideration of the record in State v. Albarty, supra, discloses a clear distinction between that case and the present case.
With reference to the verdict, there is a distinction between State v. Merritt, supra, and the present case. There the jury found the defendant "guilty of operating a motor vehicle under the influence of intoxicating liquor," but here the verdict was "guilty as charged in the warrant." But there can be no doubt as to the identity of the criminal offense of which defendant was convicted. The court, in instructing the jury, treated the warrant as charging only one criminal offense, namely, the operation of an automobile on the public street of Graham while under the influence of intoxicating liquor. Whether he was guilty of this criminal offense was the only question submitted to the jury; and, as set forth in the excerpt quoted above to which defendant's Assignment of Error No. 3 is directed, the court instructed the jury if they found defendant guilty of this criminal offense, it would be their duty "to return a verdict of Guilty as Charged in the Warrant." Immediately thereafter, the court instructed the jury: "If the State has failed to so satisfy you, it would be your duty to return a verdict of Not Guilty."
A verdict, apparently ambiguous, "may be given significance and correctly interpreted by reference to the allegations, the facts in evidence, and the instructions *62 of the court." State v. Smith, 226 N.C. 738, 40 S.E.2d 363; State v. Beam, supra. "The verdict should be taken in connection with the charge of his honor and the evidence in the case." State v. Gilchrist, 113 N.C. 673, 676, 18 S.E. 319, and cases cited; State v. Gregory, 153 N.C. 646, 69 S.E. 674; State v. Wiggins, 171 N.C. 813, 89 S.E. 58. When the warrant, the evidence and the charge are considered, it appears clearly the jury, by their verdict, found defendant guilty of operating a motor vehicle on the public street of Graham while under the influence of intoxicating liquor
The record in State v. Albarty, supra, discloses: Near the beginning of the charge, the jury were instructed they could return "one of two verdicts, namely: First, `Guilty, as charged in this warrant;' or second, `Not Guilty,'" etc. The jury returned a verdict of "Guilty of Lottery as Charged in the Warrant." In concluding the charge, this instruction was given: "Now the Court charges you that if the State of North Carolina has satisfied you, from the evidence and beyond a reasonable doubt, that the defendant, Albarty, on the occasion mentioned in the warrant; to-wit, on or about the 28th day of October 1952 was operating a lottery; that is, had sold or bartered, or caused to be sold or bartered tickets, tokens, or certificates for shares in a lottery as the Court has defined a lottery to be, either by himself, or if he aided and abetted another or others in selling or bartering tickets, tokens, or certificates for shares in a lottery, as the court has defined a lottery to be, he would be guilty, as charged in the warrant in this case, and it would be your duty to return a verdict of `Guilty.' On the contrary, however, if the State of North Carolina has failed to so satisfy you, from the evidence and beyond a reasonable doubt, it would be your duty to acquit him; that is, to return a verdict of `Not guilty.'" (Our italics) Suffice to say, the court's (quoted) instruction in State v. Albarty, supra, did not remove or tend to remove the ambiguity in the verdict.
The record discloses no error of law deemed sufficient to justify the award of a new trial.
No error.
SHARP, J., took no part in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4516208/ | Case: 19-10625 Document: 00515343956 Page: 1 Date Filed: 03/13/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10625 March 13, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ADRIAN JIMINEZ-GARCIA, also known as Adrian Jimenez-Garcia,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Adrian Jiminez-Garcia, federal prisoner # 39740-177, appeals the
district court’s denial of his Federal Rule of Civil Procedure 60(b)(4) motion for
relief from the 2010 judgment convicting him of, and sentencing him for, bank
robbery. The district court denied Jiminez-Garcia’s motion on the ground that,
inter alia, the Federal Rules of Civil Procedure do not apply in criminal
proceedings. On appeal, Jiminez-Garcia contends that his judgment is void
because it reflected a sentence that incorporated guideline enhancements with
which he was not charged in his indictment.
We have a continuing duty to consider, sua sponte, if necessary, the basis
of the district court’s and our jurisdiction. See Solsona v. Warden, F.C.I., 821
Case: 19-10625 Document: 00515343956 Page: 2 Date Filed: 03/13/2020
No. 19-10625
F.2d 1129, 1132 n.2 (5th Cir. 1987); Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987). Although Jiminez-Garcia filed his Rule 60(b) motion after the
denial of a prior 28 U.S.C. § 2255 motion, the district court treated it as arising
solely in his criminal proceeding and did not consider whether Jiminez-Garcia
was attempting to file what amounted to an unauthorized successive § 2255
motion. See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005); United States v.
Hernandes, 708 F.3d 680, 681-82 (5th Cir. 2013). The district court did not
conduct this threshold determination, and therefore the district court did not
ensure its jurisdiction over Jiminez-Garcia’s motion. See Hernandes, 708 F.3d
at 681–82; 28 U.S.C. § 2253(c). When a district court “fails to explicitly decide
[an] issue” that weighs on the district court’s jurisdiction, the “better solution
is to remand the case to the district court for determination of the jurisdictional
questions” rather than dismissing the matter altogether. Getty Oil Corp., a
Div. of Texaco, Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1260 n.8 (5th Cir.
1988); Smith v. Bank of Am. Corp., 605 F. App’x 311, 312–15 & n.5 (5th Cir.
2015) (vacating judgment and remanding for “district court to determine its
own jurisdiction in the first instance”).
Subject to a narrow exception that is inapplicable in this case, a
certificate of appealability (COA) is required to appeal the denial of a Rule
60(b) motion filed after the denial of a § 2255 motion. See Ochoa Canales v.
Quarterman, 507 F.3d 884, 888 (5th Cir. 2007); § 2253(c). The district court
must make the first judgment as to whether a COA should issue. Rule 11(a),
RULES GOVERNING § 2255 PROCEEDINGS; see also Black v. Davis, 902 F.3d 541,
543–45 (5th Cir. 2018) (§ 2254 case), cert. denied, 2020 U.S. LEXIS 372
(Jan. 13, 2020). Because the district court has not ruled on whether Jiminez-
Garcia should be granted a COA to challenge the denial of his Rule 60(b)
motion, this court lacks appellate jurisdiction to consider the district court’s
2
Case: 19-10625 Document: 00515343956 Page: 3 Date Filed: 03/13/2020
No. 19-10625
denial of Jiminez-Garcia’s Rule 60(b) motion. See Black, 902 F.3d at 543–53.
Although “we are without jurisdiction unless the district court either granted
or denied a COA” and although “we are foreclosed from treating . . . [Jiminez-
Garcia’s] request for relief in our court as a COA,” we can still remand to the
district court to conduct the threshold determination of whether Jiminez-
Garcia’s Rule 60(b) motion amounts to an unauthorized successive § 2255
motion. Crutsinger v. Davis, 929 F.3d 259, 266 (5th Cir. 2019).
Accordingly, the district court’s judgment denying Jiminez-Garcia’s Rule
60(b) motion is VACATED. This case is REMANDED for the district court to
determine in the first instance whether it has jurisdiction to consider Jiminez-
Garcia’s Rule 60(b) motion and whether it should issue a COA. See Black, 929
F.3d at 543–45; Getty Oil Corp., 841 F.2d at 1260 n.8.
3 | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2261575/ | 428 A.2d 858 (1981)
In the Matter of Ralph H. ROSS.
Supreme Judicial Court of Maine.
Argued April 1, 1981.
Decided April 23, 1981.
*859 Pierce, Atwood, Scribner, Allen, Smith & Lancaster by Ralph I. Lancaster, Jr. (orally), Daniel W. Emery, Portland, for Committee for Judicial Responsibility.
Berman, Simmons, Laskoff & Goldberg, P.A. by Jack H. Simmons, Lewiston, (orally), Edward G. Hudon, Brunswick, for Ralph H. Ross.
Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, GLASSMAN, ROBERTS and CARTER, JJ.
PER CURIAM.
This is an original proceeding commenced in the Supreme Judicial Court by the filing of a report by the Committee on Judicial Responsibility and Disability.[1] The report alleged that the respondent, Ralph H. Ross, a Judge-at-large of the District Court, has engaged in conduct violative of the Code of Judicial Conduct[2] and recommended that *860 discipline be imposed. Immediately upon receipt of the report, this Court issued a procedural order the most significant provisions of which were:
1. The respondent was suspended, until final action by the Supreme Judicial Court, from the performance of judicial duties except to the extent reasonably necessary for the completion of cases already heard in part and then pending before him.
2. The Chief Justice was to designate a single Justice of the Supreme Judicial Court to serve as a hearing Justice to hold such evidentiary hearings as were necessary "and to report to the Court his findings of fact on the issues raised by the Committee's report and respondent's answer."
3. The full Court would receive briefs and hear oral argument after the hearing Justice reported and would "thereupon determine whether the charges, or any of them, have been proved by a preponderance of the evidence, and, if so, the appropriate sanction or sanctions to be imposed."
Pursuant to that order, the Chief Justice designated a single Justice as the hearing Justice in this matter. The report of the Committee, together with copies of the procedural order and the order designating the hearing Justice, was served upon the respondent personally. Thereafter, in accordance with the procedural order, the respondent filed his written answer to the report of the Committee. The hearing Justice held a prehearing conference at which the Committee and the respondent appeared through counsel. At the prehearing conference, it was agreed that this matter should be submitted to the full Supreme Judicial Court on the stipulation of facts submitted to the Committee and the exhibits attached thereto as supplemented by a written motion which had been filed with the Committee. It was further stipulated that an evidentiary hearing would not be required and that the issues to be addressed by the Supreme Judicial Court were:
1. Did the procedure of the Committee violate the due process provisions of the United States Constitution or the Maine Constitution?
2. Did the conduct of the respondent described in the stipulation of facts constitute a violation or violations of the Code of Judicial Conduct?
3. If the Court concludes that the conduct of the respondent did constitute a violation or violations of the Code of Judicial Conduct, what sanctions, if any, should be imposed?
The hearing Justice set times for filing briefs and scheduled the matter for hearing on April 1, 1981, before the full Supreme Judicial Court sitting in exercise of its original jurisdiction, not as the Law Court.
I.
The respondent had contended that the procedure before the Committee violated due process in that there were combined in the Committee investigative, prosecutorial and adjudicative responsibilities. At the hearing before the full Court, counsel for the respondent conceded there was no due process violation. This concession was based on a recognition that in this original proceeding before the Supreme Judicial Court the Court would not be functioning as an appellate tribunal, would give no deference to the purported findings and conclusions of the Committee and would independently find the facts and reach the appropriate legal conclusions. We therefore find it unnecessary to engage in any extended discussion of the first issue identified in the pretrial order. The Committee on Judicial Responsibility and Disability functions as an investigative agency similar to a grand jury in criminal proceedings. The report of the Committee is nothing more than a charging document containing the Committee's allegations concerning the conduct of the respondent. The burden is on the Committee to prove those allegations before the full Court. Thus, the Committee performs no adjudicative functions whatsoever but is merely the investigative agency which formally prepares a charging document *861 filed with the Supreme Judicial Court. Under such circumstances, there is no due process violation. See Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1974); Cohn, The Limited Due Process Rights of Judges in Disciplinary Proceedings, 63 Judicature 232 (1979).
II.
Because this is the first occasion which this Court has had to address the problem of judicial discipline where a sitting judge has been charged with misconduct, we note at the outset the extreme sensitivity of the task in which we are engaged. It is axiomatic that an independent and vigorous judiciary is essential as a bulwark to protect the rights of our citizens.[3] An infringement on the independence of the judiciary is an immediate threat to the fundamental concept of government under law. Independence of the judiciary is not inconsistent with accountability for judicial conduct. Lawless judicial conductthe administration, in disregard of the law, of a personal brand of justice in which the judge becomes a law unto himselfis as threatening to the concept of government under law as is the loss of judicial independence. We see no conflict between judicial independence and judicial accountability. Indeed, a lack of judicial accountability may itself be the greatest danger to judicial independence.
We are aware that judicial accountability does not require that judges be mere robots or be of precisely the same character with precisely the same personal qualities and attitudes. There is room in a judiciary which serves a pluralistic society for differences in judicial style. There is room for the colorful judge as well as the more conventional judge. Differences in style and personality do not of themselves suggest misconduct. To the end that a courtroom may truly be a temple of justice and not the personal domain of the man or woman who happens to be presiding, any differences in style must always result in justice administered according to law and must be in accord with minimum standards of propriety. To establish such minimum standards of conduct and propriety, we promulgated the Code of Judicial Conduct in 1974. It is against this Code that allegations of judicial misconduct must be measured.
In this case there are no factual disputes. The matter was submitted to the Court upon a stipulation of facts, agreed to by both parties, which details the conduct of the respondent. Thus, we need not engage in a fact-finding process. Rather, we are engaged in the delicate task of applying to the admitted facts the legal standards found in the Code of Judicial Conduct to determine whether the admitted conduct of the respondent has violated the Code. Before discussing the specific conduct of the respondent, we must emphasize that there is neither an allegation nor a suggestion that in any of these matters Judge Ross acted for personal gain or benefit. For ease in description, we will group similar allegations of misconduct and will treat each group separately.
A.
In two of the matters, the respondent imposed sentences of imprisonment without affording the persons sentenced the hearings to which they are entitled by law. In these two matters, the Court concludes that the respondent violated Canons 2(A),[4] 3(A)(1)[5] and 3(A)(4)[6] of the Code of Judicial Conduct.
*862 On or about October 17, 1979, Jeffrey L. Powell appeared in the District Court in Springvale, Maine, and admitted to having committed a civil violation, possession of a usable amount of marijuana, in violation of 22 M.R.S.A. § 2383. The respondent sentenced Powell to pay a forfeiture of $100 and further ordered him, in default of payment, to be imprisoned to serve out that fine at the rate of $10 per day. Powell left the courtroom and, in the presence of court officers and others, made vulgar and derogatory statements about the respondent. A court officer reported these statements to the respondent including the words "fucking dink." The respondent had Powell recalled to the courtroom and in vulgar, abusive and intemperate language increased the forfeiture from $100 to $200 and changed the per diem rate for serving out the forfeiture from $10 per day of confinement to $5 per day of confinement.
The judgment was illegal in several respects: In the first place, the only penalty provided for a civil violation is a fine, penalty or forfeiture. 17-A M.R.S.A. §§ 4(3), 4-A(4). Even in criminal proceedings it is unconstitutional to imprison a defendant for failure to pay a fine without a showing that the defendant willfully failed to pay the fine having the financial ability to do so. See Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). M.D.C.Civ.R. 80H(i) provides: "Judgments in civil violation proceedings shall be enforced as in other civil actions."
Secondly, it is apparent that the respondent increased Powell's fine and charged the per diem rate to lengthen the term of imprisonment because of what the respondent considered to be contumacious conduct. The procedure for dealing with contumacious conduct evidencing disrespect for a court is specified in M.R.Crim.P. 42 made applicable in the District Court through M.D.C.Crim.R. 42. If the judge sees or hears the conduct constituting the contempt and if the conduct was committed in the actual presence of the court, the judge may punish the contempt summarily. M.R. Crim.P. 42(a). An order of summary contempt must recite the facts constituting the contempt and contain a certificate by the judge that he saw or heard the conduct and that it was committed in the presence of the court. Id. Such an order is appealable. A criminal contempt not seen or heard by the judge and not committed in the actual presence of the court must be prosecuted on notice and after hearing. M.R.Crim.P. 42(b); In re Bernard, Me., 408 A.2d 1279 (1979). Here, without any attempt to comply with either the summary procedure provided in M.R.Crim.P. 42(a) or the plenary procedure required in this case by M.R. Crim.P. 42(b), the respondent entered a judgment the effect of which was to impose an additional thirty days of imprisonment for no reason other than that the defendant had engaged in what was alleged but not proven to be contumacious conduct. It is not asserted, as it could not be, that the respondent was unacquainted with the requirements of the law. Rather, the record is clear that the respondent willfully disregarded the requirements of the law.
On October 23, 1979 at 9:00 a.m. in a divorce action entitled Linscott v. Linscott, a hearing was scheduled in District Court at Bridgton on the wife's post-judgment motion seeking to have the defendant-husband held in contempt. The respondent had presided in this divorce action from its commencement and had issued several orders including the divorce judgment. Because of court commitments elsewhere, the respondent was unable to attend the scheduled hearing; no advance notice of his unavailability had been given to the parties. The wife's attorney was present at 9:00 a.m. at the court in Bridgton. The defendant arrived without counsel sometime between 9:15 and 9:30 a.m. The wife's counsel called the respondent on the telephone and spoke with him. The respondent then spoke with the defendant, Mr. Linscott. In the course of the conversation with Mr. Linscott, the respondent asked him if he was going to comply with an order of the court. Mr. Linscott said he would not. The respondent warned Mr. Linscott of the consequences of his failure to comply. The respondent then instructed the wife's counsel *863 to prepare an order finding Mr. Linscott in contempt of court.
Under date of October 23, 1979, the respondent entered the order which had been prepared by the wife's counsel. That order falsely asserted that a hearing had been held on October 23. It contained "findings of fact" running over two pages and found the defendant Linscott to be in contempt of the court's prior order of May 15, 1979. It directed that Linscott be confined in the Cumberland County Jail in Portland, Maine, until he had purged himself of contempt by performing a series of acts set forth in the order. Linscott was arrested and confined in the Cumberland County Jail pursuant to this order from October 24, 1979 until November 1, 1979 when he was released by order of a Justice of the Superior Court.
It is the contention of the respondent that the telephone conversation he had with counsel for the wife and the defendant Linscott constituted a hearing. This contention must be rejected. An evidentiary hearing is a formal proceeding in court. Before a hearing on a contempt citation may result in the incarceration of the individual cited, there must be proof through sworn testimony that there has been a willful failure to comply with a court order by an individual having the ability to comply. See Yoder v. County of Cumberland, Me., 278 A.2d 379 (1971). Although the order issued by the respondent contains a lengthy recitation of facts alleged to have been found, there was no evidentiary base for these findings. If conduct such as this is to be permitted, there is nothing to prevent a judge, as a result of a telephone call or a chance encounter on the street, without even a semblance of the hearing mandated by both the United States and the Maine Constitutions, from issuing an order which results in the deprivation of a citizen's liberty.
B.
The respondent improperly sought to interfere with the processes of the Committee on Judicial Responsibility and Disability by seeking to influence one of the witnesses before the Committee. This was a violation of Canon 2(A) of the Code of Judicial Conduct.[7] One of the individuals reporting the Powell incident to the Committee was Lt. Steven L. Lambert, Commanding Officer, Troop A, Maine State Police Barracks, Scarborough. In April of 1980, the respondent visited Lt. Lambert at his office in Scarborough. At Lt. Lambert's request, Lt. Trask was brought into the conference. During the meeting, the respondent referred to two troopers who had been transferred because of some trouble. The respondent told Lt. Lambert that he had better get a good lawyer because he was going to sue him for libel and slander. On the way out of the office, the respondent suggested to Lt. Trask that he talk to Lt. Lambert and see if he wouldn't change his mind. On April 30, the respondent called Lt. Trask and asked him if he had heard anything from "his friend."
The respondent contends that the purpose of his meeting with Lt. Lambert related to other allegations of misconduct made by Lt. Lambert that were withdrawn by the lieutenant after further investigation. Even if true, that contention is of no significance. The fact is that the respondent was aware that a proceeding was pending before a committee established by this Court to investigate allegations of judicial misconduct. For a judge who is the subject of an inquiry before the Committee to seek to impede the processes of the Committee by intimidating witnesses, no matter how false the accusations against the judge may be, demonstrates a complete disregard of a judge's obligation to the public. If the allegations were false, their falsity would be demonstrated through the ordinary processes of the Committee and of this Court. A judge has no right to seek to evade those processes through the intimidation of witnesses. We do not suggest that a judge is deprived of his ordinary civil remedies should he be the victim of false and malicious accusations, but the interests of the *864 public in assuring that allegations of misconduct are thoroughly investigated through the processes established by this Court require that a judge not use the threat of such civil remedies to influence witnesses before the Committee.
C.
In two instances, because of personal acquaintanceship with the individuals charged, the respondent caused complaints charging traffic infractions to be "filed,"[8] thereby violating Canons 2(B),[9] 3(A)(1),[10] 3(A)(4)[11] and 3(C)[12] of the Code of Judicial Conduct.
In one case, the respondent was asked by Harry T. Mavrakos, whom he had known all his life, if there was anything the respondent could do to prevent the conviction of Mavrakos's son, John, of a speeding offense since a conviction would result in loss of John's license and would increase his insurance costs. The respondent said he would see what he could do. On or about October 17, 1979, the respondent told Officer Arthur B. Titcomb III of the Sanford Police Department that John Mavrakos, charged by Officer Titcomb with operating a motor vehicle at a speed of 40 miles per hour in a 25-mile-per-hour zone, would, if convicted, lose his license and be required to pay an increased insurance premium of $1,000. The respondent also told Officer Titcomb that young Mr. Mavrakos, age eighteen, should be given a break by "filing" the complaint. Officer Titcomb concurred in the "filing" of the complaint. The respondent then asked Harry Mavrakos to bring his son to the respondent's residence the following Saturday. At that time the respondent lectured John Mavrakos on the evils of speeding.
In another case, the respondent caused a complaint charging Larry W. Doyle with the offense of squealing tires to be rescheduled to a date when the respondent would be presiding in the District Court in Springvale. On or about December 26, 1979, the respondent spoke with the arresting officer, Trooper Dean A. Knight, and told him that Doyle was "not a bad kid" and that he had known him all his life. The respondent also told the trooper that, because of Doyle's other problems, the charge of squealing tires should be "filed" and in fact caused the complaint to be "filed" with Trooper Knight's concurrence.
Concerning the Mavrakos matter, Judge Ross wrote to the Committee expressing his personal views as follows:
I believe that filing, coupled with the threat of substantial punishment if there should be any type of re-occurrence is a very effective tool and promotes respect for the law and also has a rehabilitation effect.
. . . .
*865 I believe that this kind of action and these kinds of lectures are worthwhile and do accomplish the goal. I believe that merely finding someone guilty and sentencing them to pay a fine may be ineffective in terms of future conduct whereas the threat of future penalty may be very effective.[13]
Whether one finds Judge Ross's personal philosophy acceptable is, of course, not the question. Under his oath, a judge is required to administer the law, not his personal philosophy.[14] The concept of equal justice under law becomes meaningless if some persons receive the benefit of a judge's personal philosophy on the basis of their personal acquaintance with the judge while others who have no such relationship with a judge are dealt with according to law.
D.
In two instances, the respondent used abusive, intemperate and vulgar language against persons before him in violation of Canon 3(A)(3) of the Code of Judicial Conduct.[15] The first such instance is the Powell matter described above. As noted, when the respondent was informed of the insulting language used by Powell outside the courtroom, the respondent had Powell brought back into the courtroom. The best description of what then occurred is contained in the respondent's written response to the Committee as follows:
I then laid him out in lavender, so to speak. He was informed that the Court did not relish the idea of being called a "dink" and that he would be shown the Court always tries to be fair; however, the Court could really be a "dink". The defendant was then and there informed that the fine was no longer $50.00 [sic], but rather $200.00, and he had a choice to pay his fine or serve it at $5.00 per day. The Court further added, "Young man, you will remember that the likes of you I chew up and spit out before breakfast, and I never have breakfast until 8:00 o'clock at night."[16]
On or about December 14, 1979, in the District Court in Biddeford, the respondent presided at a hearing on a petition for protective custody occasioned by allegations of sexual child abuse brought against Leo R. Desrosiers, the father of the allegedly abused children. In his response to the Committee, the respondent described what occurred in the courtroom as follows:
I did lecture Mr. Leo R. Desrosiers, Sr., rather sternly, in open court. Let us remember that Mr. Desrosiers does not hold a Ph.D. in English; therefore, it was incumbent upon me to address him in such language that he would understand loud and clear.
All parties were in Court Room No. 2 and I told Mr. Desrosiers that whereas Mrs. Desrosiers was expecting her third child at the end of April that the matter would stand continued finally until June 17, 1980 at 9 a. m.
I further pointed out to him that the matter would be recorded, that the District Attorney or an assistant would be present. It could well be that you will find yourself in Thomaston. I also pointed out to him that in some parts of the world people who abuse children are hung like an apple. My final remark was a French "patois" which I translatedwell, knowing, that Mr. Desrosiers would get the message. Should you get any urges you would do well to remember your five (5) brothers.
*866 It is stipulated that with minor variations six witnesses who were present in the courtroom, including a State Police detective, two social workers, an assistant attorney general and two members of the Bar, would describe the respondent's language in similar terms. What emerges clearly is that the respondent suggested to the individual before him that he should masturbate rather than sexually abuse his children. It must be remembered that the charge of sexual abuse was merely an allegation and had not been proven.
We reject as unacceptable the suggestion that an individual's lack of education authorizes a court to deal with him differently. All persons are equal before the law. The poor and uneducated are entitled to the same treatment as the rich and learned. We also reject the contention that since the respondent was successful in keeping a family together his actions should be approved. If success or effectiveness were the criteria by which a judge's conduct is evaluated, we would see in our courts many practices which our Constitution, our history and our mores condemn as abhorrent in a system of justice under law.
We would be unrealistic if we failed to recognize that judges are merely human. The pressure occasioned by both the volume and the nature of the business which comes before the District Court may on occasion cause the best judge to use intemperate language. We must also recognize, however, that the District Court is the court with which most citizens who have judicial business come into contact. It is the District Court that projects to the mass of our citizens their image of the administration of justice. Intemperate language is on occasion understandable, but vile, obscene and abusive language is inexcusable. The law should provide an exemplar of correct behavior. When the judge presides in court, he personifies the law, he represents the sovereign administering justice and his conduct must be worthy of the majesty and honor of that position. Language such as the respondent used in both these cases degrades and diminishes the law, the judge and the sovereign that the judge represents.
E.
The last incident described in the report of the Committee would, standing alone, merely demonstrate a single occasion on which the respondent disregarded orderly procedure. However, in the context of the other incidents demonstrating the respondent's disregard of the law, all of which occurred within a relatively short time, this incident is another example of the respondent's administration of a personal brand of justice in disregard of the law and in violation of Canon 3(A)(1) of the Code of Judicial Conduct.[17]
On or about March 19, 1979, in the District Court in Biddeford, the respondent held a hearing and found one Robert King guilty of the charge of operating under the influence of liquor. The case was continued for sentencing on a day-to-day basis until September of 1979. At the same time, a similar charge against King was continued for hearing on the same terms. There is no authority for the kind of continuance granted by the respondent. M.D.C.Crim.R. 32(a) provides:
Sentence shall be imposed without unreasonable delay, provided however, the court may suspend the execution thereof to a date certain or determinable. Pending sentence the court may commit the defendant or continue or alter bail.
Finding the defendant guilty and continuing the matter for a period of six months for the imposition of sentence in effect placed the defendant on informal probation to the court, a procedure unauthorized by our law.[18] That this was the respondent's *867 intention is apparent from his response to the Committee in which he stated:
During the trial, it was obvious that Mr. King had other problems; i. e. drugs, etc. At that time, it was my judgment to make a finding of guilty, to continue the matter for six (6) months, and give him a chance to straighten himself out. It was my understanding that he had been admitted to some alcohol and drug rehabilitation center.
On or about September 28, 1979, the attorney for King informed the respondent that King, who was from Kansas, was not in the state and reminded the respondent that the matter had been continued to that time for sentencing. At the same time, the attorney represented to the respondent that there had been no further problem, whereupon the respondent entered findings of not guilty in both cases.
The respondent's action is inexplicable. On one charge, the respondent had already found King guilty and continued the matter for sentencing. Despite that fact he reversed himself without holding a formal hearing and entered a judgment of not guilty. On the second charge, there had been no hearing at all. The State had not been given an opportunity to prove the allegations of the complaint against the defendant; yet the respondent again entered a finding of not guilty. In the case in which the respondent had already found the defendant guilty, he could have entered a sentence of unconditional discharge. See 17-A M.R.S.A. § 1152(2)(B). In the case which had not been tried, the attorney for the State might have elected to file a dismissal. M.D.C.Crim.R. 48(a).
We recognize that with the volume of business in the District Court practical justice dictates simplicity of procedure. Nevertheless, under no circumstances may a desire for simplicity permit the entry of a false judgment.
F.
Canon 1 of the Code of Judicial Conduct provides:
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
The respondent's actions in all the incidents described above, when considered together, clearly demonstrate a violation of that canon.
For all these reasons, we find that the respondent, Ralph H. Ross, has violated the following provisions of the Code of Judicial Conduct: Canon 1, Canon 2(A), Canon 2(B), Canon 3(A)(1), Canon 3(A)(3), Canon 3(A)(4) and Canon 3(C).
III.
The Committee has recommended to this Court that the respondent should be suspended from the performance of his judicial duties, without pay, for a period of thirty days and that he also should be relieved of any administrative responsibilities. The respondent has contended that this Court is without power or authority to impose any sanction other than a reprimand.
Under our Constitution, judicial officers other than Probate Judges are appointed by the governor subject to confirmation through the legislative process. Me.Const. art. V, pt. 1, § 8. Judicial officers may be removed during their term through joint action of the governor and the Legislature either by impeachment or address. Me. Const. art. VI, § 4; art. IX, § 5. It is thus apparent that, pursuant to our Constitution, the appointment and removal of judges is *868 committed to the political departments of the government and does not involve an exercise of judicial power.
Our Constitution commits the judicial power of the State to the "Supreme Judicial Court, and such other courts as the Legislature shall from time to time establish." Me.Const. art. VI, § 1. The Supreme Judicial Court is the only court established by our Constitution. All other courts owe their existence to legislative action. As the only court established by our Constitution, it is incumbent upon the Supreme Judicial Court to exercise that part of the judicial power involved in prescribing the conduct of judges and imposing discipline upon them for misconduct. This power has been recognized legislatively. In pertinent part, 4 M.R.S.A. § 1 provides:
The Supreme Judicial Court shall have general administrative and supervisory authority over the judicial department and shall make and promulgate rules, regulations and orders governing the administration of the judicial department.
In pertinent part, 4 M.R.S.A. § 7 provides:
[The Supreme Judicial Court] has general superintendence of all inferior courts for the prevention and correction of errors and abuses where the law does not expressly provide a remedy ....
The power of the Supreme Judicial Court to create the Committee on Judicial Responsibility and Disability for the purpose of making investigations and recommendations to the Supreme Judicial Court in disciplinary matters has also been recognized legislatively. 4 M.R.S.A. § 9-B. Thus, the power of the Supreme Judicial Court to discipline judges for misconduct finds its source in the Constitution's grant of judicial power to the Court and in the legislative recognition of the power of the Supreme Judicial Court in the statutes hereinabove cited. See, e. g., In re DeSaulnier, 360 Mass. 787, 807-09, 279 N.E.2d 296, 307-08 (1971); In re Mussman, 112 N.H. 99, 101-02, 289 A.2d 403, 404-05 (1972).
Recognizing that the power of the Supreme Judicial Court to discipline does not include the power to remove a judge, the respondent argues that suspension from the performance of judicial duties is in fact and law the equivalent of removal and therefore is beyond the power of the Supreme Judicial Court. We reject that contention. By definition, suspension and removal are two separate and distinct concepts. A judge who is suspended does not thereby vacate the office; there is not a vacancy which may be filled by appointment of a new judicial officer by the political departments of the government. A suspended judge remains a judge and is merely denied the power to perform his judicial duties for a limited period of time. The power to suspend a judge has been recognized by many courts. See, e. g., In re Troy, 364 Mass. 15, 21-22, 300 N.E.2d 159, 163 (1973); Ransford v. Graham, 374 Mich. 104, 108, 131 N.W.2d 201, 203 (1964); In re Mussman, supra; In re Franciscus, 471 Pa. 53, 369 A.2d 1190, cert. denied, 434 U.S. 870, 98 S.Ct. 212, 54 L.Ed.2d 148 (1977).
Article VI, Section 2 of our Constitution provides:
The justices of the Supreme Judicial Court and the judges of other courts shall, at stated times receive a compensation, which shall not be diminished during their continuance in office, but they shall receive no other fee or reward for their services as justices or judges.
Relying upon this constitutional provision, the respondent argues that, even if this Court has the power to suspend a judge, it may not suspend him without pay. We have no occasion to address that issue and intimate no opinion upon it since in this case we do not deem it appropriate to suspend the respondent without pay.
The purpose of sanctions in cases of judicial discipline, as in cases of lawyer discipline, is not vengeance or retribution. Those concepts have no place in a disciplinary system designed to assure the orderly administration of justice in the public interest. Any sanction must be designed to preserve the integrity and independence of the judiciary and to restore and reaffirm the public confidence in the administration of justice. Any sanction must be designed to *869 announce publicly our recognition that there has been misconduct; it must be sufficient to deter the individual being sanctioned from again engaging in such conduct and to prevent others from engaging in similar misconduct in the future. Thus, we discipline a judge to instruct the public and all judges, ourselves included, of the importance of the function performed by judges in a free society. We discipline a judge to reassure the public that judicial misconduct is neither permitted nor condoned. We discipline a judge to reassure the public that the judiciary of this state is dedicated to the principle that ours is a government of laws and not of men.
Although we have found several instances of misconduct by the respondent violative of the Code of Judicial Conduct, there is not the slightest hint that his improper conduct was motivated by personal gain or benefit. Pending final decision in this matter, the respondent was temporarily suspended on the date the report of the Committee was filed with this Court. He has remained unable to perform his full judicial duties during the pendency of this proceeding. This decision will publicly announce his misconduct. Under such circumstances and in light of the nature of the misconduct of the respondent, we deem a suspension from the performance of judicial duties for a period of ninety days effective January 26, 1981, the date of the order of temporary suspension, to be an appropriate sanction. Any lesser sanction would minimize the seriousness of the misconduct involved; any greater sanction would be unjustly vindictive.
It is unnecessary for us to address the issue raised by the Committee's recommendation that the respondent be relieved of any administrative responsibility. The administration of the District Court is now in the hands of the newly appointed Chief Judge and Deputy Chief Judge.
It is ADJUDGED that Ralph H. Ross has violated Canons 1, 2(A), 2(B), 3(A)(1), 3(A)(3), 3(A)(4) and 3(C) of the Code of Judicial Conduct.
It is ORDERED that Ralph H. Ross be, and he is hereby, suspended from the performance of his duties as a Judge-at-large of the District Court for a period of ninety days, effective January 26, 1981.
All concurring.
NOTES
[1] The Committee was established by an order of the Supreme Judicial Court effective July 5, 1978.
[2] The Code of Judicial Conduct was promulgated by the Supreme Judicial Court effective April 1, 1974.
[3] E. g., "[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution." The Federalist No. 78 (A. Hamilton).
[4] "A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Code of Judicial Conduct, Canon 2(A).
[5] "A judge should be faithful to the law and maintain professional competence in it." Code of Judicial Conduct, Canon 3(A)(1).
[6] "A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law...." Code of Judicial Conduct, Canon 3(A)(4).
[7] See note 4 supra.
[8] The practice of "filing" complaints in criminal cases and civil violations in the District Court is authorized by 4 M.R.S.A. § 173(1) (amended, P.L.1975, ch. 731, secs. 5, 6). Whether this statute authorizes the "filing" of traffic infractions is open to some question since the amendment removed any reference to traffic infractions. P.L.1975, ch. 731, sec. 5. The process of "filing" is described in State v. Fixaris Me., 327 A.2d 850 (1974).
[9] "A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him." Code of Judicial Conduct, Canon 2(B).
[10] "A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism." Code of Judicial Conduct, Canon 3(A)(1).
[11] "A judge ..., except as authorized by law,... should not permit ex parte communications intended to influence his judicial action." Code of Judicial Conduct, Canon 3(A)(4) (emphasis in original).
[12] "(1) A judge should disqualify himself in any proceeding in which he has reason to believe that he could not act with complete impartiality, or in a proceeding in which his impartiality might reasonably be questioned.
"(2) A judge should promptly inform the parties in any proceeding concerning any matter which might reasonably cause his impartiality to be questioned." Code of Judicial Conduct, Canon 3(C).
[13] Judge Ross's written responses to the Committee were attached to the stipulation submitted to the Court and by the terms of the stipulation are the equivalent of his testimony.
[14] The oath required of judicial officers is found in Me.Const. art. IX, § 1.
[15] "A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity, and should require similar conduct of lawyers, and of his staff, court officials, and others while subject to his direction and control." Code of Judicial Conduct, Canon 3(A)(3).
[16] "[D]ink ...: PENISusu. considered vulgar." Webster's Third New International Dictionary (1971).
[17] See note 10 supra.
[18] Relying on pre-rules cases, the Court in State v. Fixaris, supra, 327 A.2d at 851, by way of dicta seemed to approve the procedure. Since the promulgation of our Rules of Criminal Procedure, sentence must be imposed "without unreasonable delay." M.R.Crim.P. 32(a); M.D.C.Crim.R. 32(a). Prior to May 1, 1976, a court could continue a matter for sentencing and place a defendant on probation. 34 M.R.S.A. § 1631 (repealed, P.L.1975, ch. 499, sec. 70). See generally H. Glassman, Maine Practice, Rules of Criminal Procedure § 32.7 (1967). The statutory procedure was recognized in the rules. See M.R.Crim.P. 32(e); M.D.C.Crim.R. 32(e). Since the enactment of our new Criminal Code, that procedure is no longer permissible. See 17-A M.R.S.A. § 1201. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4516210/ | Case: 19-11394 Date Filed: 03/13/2020 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11394
Non-Argument Calendar
________________________
D.C. Docket No. 1:18-cr-20760-CMA-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
ISAIAH MEME,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 13, 2020)
Before BRANCH, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 19-11394 Date Filed: 03/13/2020 Page: 2 of 12
Isaiah Meme was convicted of access device fraud, in violation of 18 U.S.C.
§ 1029(a)(2); aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1);
and possession of 15 or more unauthorized access devices, in violation of 18
U.S.C. § 1029(a)(3). He appeals these convictions. On appeal, Meme argues that
there was insufficient evidence to support his convictions. For the reasons that
follow, we affirm Meme’s convictions.
BACKGROUND
Because Meme appeals his conviction, specifically arguing that the evidence
was insufficient to support a conviction, we review the evidence that was presented
at trial in some detail. Isaiah Meme was indicted on September 18, 2018, in a
multiple-count indictment alleging 1 count of access device fraud, in violation of
18 U.S.C. §1029(a)(2) (Count 1); 6 counts of aggravated identity theft, in violation
of 18 U.S.C. § 1028A(a)(1) (Counts 2–5, 7–8); and 1 count of possession of 15 or
more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3) (Count
6). On the second day of trial, the district court granted the government’s motion
to dismiss Counts 2 and 3 on the grounds that Meme may have been a minor when
the offenses were committed.
Testimony at trial revealed the following. Robert Novakowski, an
investigator with JPMorgan Chase Bank, was investigating compromised debit
cards following customer complaints. Novakowski received a list of compromised
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debit cards and a list of transactions for those cards and obtained video surveillance
of the person making the transactions. He testified that images captured on drive-
up ATM cameras showed that Meme was making transactions with cards
belonging to other people and with counterfeit payment cards. Some of those
images showed Meme making transactions while driving a black Ford Mustang
with a bumper sticker. Novakowski sought the assistance of law enforcement in
identifying the person in the videos and images, and U.S. Secret Service Agent
Sterling Posten identified that person as Meme. Novakowski conceded that he
could not see the eye shape or eye color of the person in the images, but that the
person had the same face as Meme and that he independently reviewed all photos
and videos and, in so doing, was able to identify Meme as the person making the
transactions.
Secret Service Agent Greg Narano testified that the Secret Service had
obtained surveillance of people conducting unauthorized ATM withdrawals, one of
whom was Meme. Accordingly, the Secret Service set up surveillance on several
ATMs in an attempt to locate a black Mustang that was connected to some of these
unauthorized withdrawals. While conducting surveillance, Narano saw a person
driving a black Mustang with a bumper sticker use an ATM. Narano maintained
surveillance, identified the person in the car as Meme, and took several photos of
him. He followed Meme to Meme’s father’s house and continued his surveillance.
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Narano conceded in cross-examination that the Mustang was not registered in
Meme’s name, that Meme’s father owned the house, and that, based on his
surveillance at the ATM, he was unable to determine the build of the person in the
car or whether that person had facial hair. On redirect, he emphasized that he was
able to identify the person in the Mustang as Meme because he had an
unobstructed view of Meme’s face at one point.
Secret Service Agent Ken Adams testified to the following. He, like
Narano, was assigned to conduct surveillance at a Chase Bank ATM, saw a black
Mustang pull up to the ATM, watched the driver commit a fraudulent transaction,
identified the driver as Meme, and followed Meme to Meme’s father’s house. He
also participated in Meme’s arrest, after which he recovered two cell phones from
the Mustang. On cross-examination, Adams conceded that there were no debit
cards, credit cards, or large amounts of cash in the car when Meme was arrested.
Agent Posten then testified. He executed a search warrant of Meme’s
father’s house and in one bedroom, recovered five plastic cards, a laptop, a
firearm-training certificate in Meme’s name, several pieces of unopened mail, and
high school textbooks. Accordingly, Posten concluded that the bedroom belonged
to Meme. In a room that he concluded belonged to Meme’s brother, he recovered
a plastic card, a personal check not belonging to anybody living in the house, a
4
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money order, and a re-encoded plastic card.1 In the living room of the house,
Posten found a vehicle title belonging to Meme and traffic citations issued to
Meme. He also found other pieces of mail, like bank records, that did not belong
to anyone in the house—which he concluded was an indication of fraud taking
place in the house. Posten conceded that the Mustang was a rental vehicle that was
not rented by Meme; that according to the Florida Department of Highway Safety
and Motor Vehicles, Meme did not live with his father; and that none of the cards
in Meme’s bedroom had been re-encoded.
Secret Service Agents Marcos Morales and Allen Thomasson testified that
they had analyzed the phones recovered during Meme’s arrest. Morales
discovered that one of the phones was registered to a user identified as
“MasonM1267.” Thomasson’s analysis of the text messages in the phones
revealed that one of the phones had received text messages that identified the
recipient (and thus, the phone owner) as Meme. He also reviewed the email
account on the phone and discovered several emails received by an account
belonging to “MasonM1267” and several emails containing credit and debit card
1
In this context, re-encoding a plastic card serves to change the data on the card—in other words,
from what source the card pulled funds or registered transactions—so that it no longer matched
the information embossed on the card, e.g., the name or displayed number. See, e.g., United States
v. Cruz, 713 F.3d 600, 608 (11th Cir. 2013) (discussing re-encoding credit and debit cards). Re-
encoding cards is frequently charged as a violation of section 1029(a)(3), which prohibits the
knowing, and with intent to defraud, possession of “devices which are counterfeit or unauthorized
access devices.” E.g., United States v. Grimon, 923 F.3d 1302, 1306–1307 (11th Cir. 2019) (citing
18 U.S.C. § 1029(a)(3).
5
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numbers. Thomasson also found data on the phone showing that the phone’s
owner had visited commercial background search websites (which are frequently
used for identity theft and fraud) and disposable email service websites.
On the other phone, Thomasson also found information that identified Meme
as the account owner—the phone had sent a picture of Meme’s driver’s license and
the received texts referred to the phone’s owner as Meme. He also discovered
pictures of the Mustang, email accounts registered to “MasonM1267,” debit card
numbers and personal identification numbers, and correspondence relating to
purchasing debit card numbers and PINs on the phone, and that the phone had
visited commercial background search websites and websites for selling stolen
card numbers.
Thomasson also testified that he analyzed the laptop recovered from what
Posten had identified as Meme’s room. He discovered that the computer’s user
account was “MasonM1627.” He also found credit card and debit card numbers,
the card-owners’ personal information, software used to read and encode magnetic
strips in cards, software used to read and encode card microchips, bank
identification numbers, and bank routing numbers on the computer. All told,
Thomasson estimated that hundreds of individuals’ personal information and 120
different debit and credit card numbers were on Meme’s laptop. He also
discovered that the user of the laptop had visited websites selling credit card
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numbers and commercial background search websites. On cross-examination, he
conceded that he could not tell whether someone other than Meme had used the
laptop and phones.
After the government rested its case, Meme moved for a judgment of
acquittal. He argued that the government had failed to prove the existence of some
of the victims named in the indictment, venue was improper, and some of the
alleged criminal acts occurred while he was a minor. The district court denied
Meme’s motion.
Meme’s case solely consisted of calling his stepmother, Willaine Amedee,
who testified that Meme had never lived in his father’s house or kept any
belongings in the house. Meme rested, and then renewed his motion for a
judgment of acquittal based on insufficient evidence. The district court again
denied his motion.
The jury found Meme guilty of Counts 1 and 4–8. The district court
sentenced Meme to a 39-month prison term, which consisted of 15-month
concurrent sentences on Counts 1 and 6 and a 24-month sentence on Counts 4–5
and 7–8. Meme timely appealed to us.
ANALYSIS
On appeal, Meme argues that the evidence was insufficient to support his
conviction. We review the sufficiency of the evidence de novo, “viewing the
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evidence in the light most favorable to the government and drawing all reasonable
inferences in favor of the verdict.” United States v. Schier, 438 F.3d 1104, 1107
(11th Cir. 2006). The district court’s denial of “motions for a judgment of acquittal
will be upheld if a reasonable trier of fact could conclude that the evidence
establishes the defendant’s guilt beyond a reasonable doubt.” United States v.
Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000). “[T]he issue is not whether a
jury reasonably could have acquitted but whether it reasonably could have found
guilt beyond a reasonable doubt,” so we will not reverse a conviction solely
because the defendant “put forth a reasonable hypothesis of innocence” at trial.
United States v. Campo, 840 F.3d 1249, 1258 (11th Cir. 2016) (quotation omitted).
We are bound by a jury’s “rejection of the inferences raised by the defendant.”
United States v. Hernandez, 433 F.3d 1328, 1334–35 (11th Cir. 2005).
Furthermore, we consider all evidence produced at trial against the defendant in
evaluating his claim of insufficient evidence. United States v. Thomas, 8 F.3d
1552, 1558 n.12 (11th Cir. 1993).
An individual is guilty of access device fraud when he “knowingly and with
intent to defraud traffics in or uses one or more unauthorized access devices during
any one-year period, and by such conduct obtains anything of value aggregating
$1,000 or more during that period.” 18 U.S.C. § 1029(a)(2). An individual is
guilty of possession of 15 or more unauthorized access devices if he possesses such
8
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devices knowingly and with intent to defraud. Id. § 1029(a)(3). An individual is
guilty of aggravated identity theft when he “knowingly transfers, possesses, or
uses, without lawful authority, a means of identification of another person” during
a felony violation of, among other things, “any provision contained in this chapter”
relating to fraud. Id. §§ 1028A(a)(1), (c)(4). An “‘access device’ means any card,
. . . account number, electronic serial number, . . . personal identification number,
. . . or other means of account access that can be used, alone or in conjunction with
another access device, to obtain money . . . or that can be used to initiate a transfer
of funds.” Id. § 1029(e)(1). An “‘unauthorized access’ device means any access
device that is lost, stolen, . . . or obtained with intent to defraud.” Id. § 1029(e)(3).
We read Meme’s arguments on appeal as essentially arguing for a more
favorable inference of the facts. He argues that fraud was taking place at his
father’s house (but he was not a part of it), that the Secret Service agents could not
identify who used the phones or computer, that the ATM surveillance photos were
poor-quality and did not lend themselves to identification, that no one described
the physical characteristics of the person who was using the access devices, that
Novakowski’s identification of him was tainted, and that no counterfeit access
devices were found in his “actual or constructive possession.”
These arguments are unavailing. These arguments echo what Meme argued
at trial—both to the district court and to the jury in his arguments for acquittal—
9
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and the jury was entitled to reject those arguments and draw a different inference.
We are not able to revisit the inference that the jury drew. Hernandez, 433 F.3d at
1334–35. In any event, we conclude that the evidence at trial was sufficient to
support Meme’s conviction for two reasons: (1) the phone and laptop evidence
showed that Meme was committing access device fraud and (2) Meme was
identified as the person committing access device fraud. We address each in turn.
First, the testimony at trial clearly showed—although somewhat
circumstantially—that Meme was committing access device fraud. With regard to
the phones, the agents testified that Meme visited commercial background search
websites and websites where he could purchase stolen card numbers, had stolen
card numbers stored on his phones, and had correspondence relating to his
purchase thereof. The agents found similar evidence on Meme’s laptop.
Meme does not, and cannot, seriously contest the evidence found on both
devices—and so he instead suggests that other people were using the devices. We
wholly reject this argument, because it requires us to substitute the jury’s
reasonable inference based on the evidence presented at trial for an unreasonable
inference that happens to be more favorable to Meme. We think it is clear that the
devices both belonged to, and were used by, Meme. Contrary to Meme’s
argument, the phones were found in his “actual or constructive possession,” i.e.,
the car he was driving at the time he was arrested. And while the laptop was found
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in a room that Agent Posten had merely identified as Meme’s room, the evidence
certainly supports an inference that the room was Meme’s. His argument that he
did not live in the house, and thus that the room was not his, is strongly
contradicted by the extent to which his belongings were found both in the room
and elsewhere in the house. It is not likely that Meme’s firearm-training
certificate, vehicle title, and traffic citations would be in a house where he did not
live. Finally, we find it significant that the user account on Meme’s laptop was
identical to the username of the email accounts on Meme’s phones.
Second, Meme was identified as the person committing identity fraud.
Though it is true that Novakowski’s identification was at least partially predicated
on Agent Posten’s suggestion, we note that he testified that he independently
reviewed all of the videos and images of the fraudulent ATM transactions and he
provided an in-court identification of Meme. As we have explained previously,
“[a]n in-court identification, even if preceded by a suggestive out-of-court
identification procedure, is nevertheless admissible if the in-court identification has
an independent source.” United States v. Cannington, 729 F.2d 702, 711 (11th Cir.
1984).
But even if we concluded that Novakowski’s identification of Meme was
impermissible, we note that there are two additional—and more persuasive—
witnesses who identified Meme. Both Agents Adams and Narano identified Meme
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as the person in the black Mustang who made fraudulent transactions at an ATM.
Their identification is significant—both were surveilling him and followed him to
his father’s house, and Adams participated in Meme’s arrest.
Accordingly, we conclude that the evidence was sufficient to support
Meme’s conviction. The evidence as to the devices—both the phones in Meme’s
constructive possession at the time of his arrest and the laptop that was clearly
Meme’s—is persuasive evidence of Meme’s fraud. And the identification of
Meme, especially the eyewitness testimony of Secret Service agents who saw
Meme committing access device fraud, is even more persuasive. We reject
Meme’s arguments to the contrary.
AFFIRMED.
12 | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2261519/ | 861 F.Supp. 881 (1994)
Walter A. HOY, Plaintiff,
v.
SEARS, ROEBUCK & COMPANY, a corporation, et al., Defendants.
No. C 92-3943 SBA.
United States District Court, N.D. California.
March 7, 1994.
*882 *883 Rand L. Stephens, Law Office of Rand L. Stephens, Antioch, CA, for plaintiff.
James S. Greenan and Jane M. Konopik, Cooper, White & Cooper, Walnut Creek, CA, for defendants.
AMENDED ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
ARMSTRONG, District Judge.
Plaintiff, a former employee of defendant Sears, Roebuck & Company, brings the above-captioned matter on the ground that the defendant and its managers breached plaintiff's employment contract when defendants *884 terminated his employment. Defendants now move for summary judgment or, in the alternative, summary adjudication. After reviewing the papers submitted by both parties, and being fully informed, the Court finds that defendants' motion for summary judgment should be granted.[1]
BACKGROUND
Plaintiff was employed by defendants in a variety of positions for approximately 26 years. From 1969 to 1987, plaintiff was a Division Manager. In 1987, plaintiff's position as a Home Improvement Sales Manager was to be centralized and combined with another department. Plaintiff requested reassignment to a commission salesperson in the department that sold major appliances. The request was granted.
In August of 1991 plaintiff was fired. The reason given for his termination was his failure to maintain a sufficient ratio of Maintenance Agreements ("M/A") to Merchandise Sales.
Plaintiff admits that he failed to maintain the standards for the sales of these M/A's. However, plaintiff contends that this failure was not good cause for his termination.
In his original complaint, plaintiff alleged that the actual reason he was terminated was 1) age discrimination, and 2) the fact that he was a "whistle blower". On December 7, 1992, this Court granted defendants' motion to dismiss plaintiff's claims for age discrimination and intentional and negligent infliction of emotional distress on the basis of plaintiff's failure to state a claim upon which relief may be granted. Plaintiff's unsupported allegations of retaliatory termination were stricken.
Plaintiff's only remaining claims are for breach of contract and breach of the covenant of good faith and fair dealing.
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate under Fed.R.Civ.P. 56(b) where there exist no genuine issues of material fact and as a matter of law the moving party is entitled to win. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). For the purposes of the motion, the court must construe the opposing party's papers liberally; resolving all ambiguities and drawing all reasonable inferences in their favor. Patrick v. LeFevre, 745 F.2d 153 (2nd Cir.1984). That being the case, a factual dispute is to be considered genuine only if the non-moving party can offer "concrete evidence" such that a reasonable jury could return a verdict in their favor. Anderson v. Liberty Lobby, 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The burden on the moving party may be discharged by pointing out to the district court that there is absence of evidence to support the opposing party's claim. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-54.
B. Plaintiff's Claim for Breach of Contract
Defendants raise two arguments to establish that there is no material triable issue of fact concerning plaintiff's breach of contract claim. First, defendants contend that plaintiff's employment contract was an "at will" contract rather than a "for cause" contract. Second, defendants assert that even if plaintiff was a "for cause" employee, plaintiff's failure to meet the sales quota was good cause for his termination.
1. Whether Plaintiff Was An "At Will" Employee
Under California law, an employee's term of employment, when not specified in an employment contract or other document or oral agreement, is considered a term that may be terminated "at will" by either party. Cal. Labor Code § 2922. This statute creates a presumption that employment is terminable "at will". Hillsman v. Sutter Community Hospitals, 153 Cal.App.3d 743, 749, 200 Cal.Rptr. 605 (1984).
*885 This presumption may be rebutted only by evidence of an express or implied agreement that the employment will terminate only "for cause". Pugh v. See's Candies, Inc., 116 Cal.App.3d 311, 324-25, 171 Cal.Rptr. 917 (1981); Foley v. Interactive Data Corp., 47 Cal.3d 654, 668, 254 Cal.Rptr. 211, 765 P.2d 373 (1988).
The existence of implied promises to discharge an employee only for good cause is generally a question of fact. Foley, supra. However, Foley does not stand for the proposition that the existence of an implied-in-fact contract is always a question of fact; the issue may be appropriately resolved as a matter of law given the facts of a particular case. Miller v. Pepsi-Cola Bottling Co., 210 Cal.App.3d 1554, 1558, 259 Cal.Rptr. 56 (1989).
In determining whether such promises exist, the Court must look to the entire relationship of the parties. Id. Included in the factors to consider in examining the relationship of the parties are, the terms of the employment manual, the personnel policies and practices of the employer, the employee's longevity of service, actions or communications by the employer constituting assurances of continued employment, and the practices of the industry in which the employee is engaged. Miller v. Pepsi-Cola Bottling Co., supra, 210 Cal.App.3d at 1557-58, 259 Cal.Rptr. 56.
A contract requiring termination only "for cause" will not be implied if there is an express writing to the contrary. Shapiro v. Wells Fargo Realty Advisors, 152 Cal. App.3d 467, 482, 199 Cal.Rptr. 613 (1984). Under California law, an executed employment application purporting to be the final agreement of the parties as to an employee's "at-will" status is itself a contract or becomes integrated into any contract that is eventually executed between the parties. Comeaux v. Brown and Williamson Tobacco Co., 915 F.2d 1264, 1269-72 (9th Cir.1990).
Proof of an implied-in-fact promise of "good cause" status arising from an employer's personnel handbook is precluded by the express, written provision in the plaintiff's employment application stating that employment is "at will". Gianaculas v. Trans World Airlines, Inc., 761 F.2d 1391, 1394 (9th Cir.1985); cited with approval in Tollefson v. Roman Catholic Bishop, 219 Cal. App.3d 843, 855-56, 268 Cal.Rptr. 550 (1990).
Defendants in this case have produced a copy of plaintiff's "Application for Employment". The application provides that "[m]y employment and compensation can be terminated, with or without cause, and with or without notice, at any time, at the option of either the Company or myself." Declaration of Jane M. Konopik In Support of Defendants' Motion for Summary Judgment or, in the Alternative, for Summary Adjudication of Issues (Konopik Declaration), Exhibit D, at 2. [emphasis added]. Moreover, the Sears' Personnel manual provides "[t]his guide does not affect the basic relationship between Sears and its associates as is expressed, for example, in the Application for Employment, i.e., employment at Sears is considered indefinite and terminable at the will of either Sears or its associates, without notice, and with or without cause at any time." Konopik Declaration, Exhibit G. [emphasis added].[2]
The language of these documents is unambiguous; Sears' employees are terminable "at will". In at least one circuit, the Sears' application has been consistently deemed a part of the employment contract, rendering each employee's term of employment "at will". Reid v. Sears, Roebuck and Co., 790 F.2d 453, 461 (6th Cir.1986). "Every reported district court case involving a claim of unlawful discharge in the face of the language contained in the Sears application has resulted in summary judgment for Sears."
Plaintiff fails to address the significance *886 of these documents[3] and argues that his twenty-six years of service, coupled with every employee's understanding that they were "for cause" employees, create an implied contract term of "for cause" termination only. Plaintiff cites Pugh v. See's Candies, Inc., supra, and Kern v. Levolor Lorentzen, Inc., 899 F.2d 772 (9th Cir.1990) for this proposition.
Of these two justifications for implying a "for cause" term, plaintiff relies almost exclusively on the longevity of his employment. The Court in Levolor Lorentzen determined that an implied contract term of termination "for cause" existed. The Ninth Circuit found that the employer had made several expressed and implied promises to follow certain procedures in determining which employees were terminated or laid-off. However, the employer failed to follow these procedures in terminating one of its employees. Based in part on the procedures for termination included in a personnel handbook, and to a greater extent upon the defendant's conformance with the established procedures and hierarchies in making lay-off decisions with regard to employees except the plaintiff, the Court found that an implied contract existed. Levolor Lorentzen, 899 F.2d at 776-77.
In Pugh, a vice-president who had worked for See's Candies for over 32 years was terminated. The Court found an implied "for cause" term of employment because the plaintiff had been personally promised on several occasions by the President of the company and his two successors that if he were loyal and did a good job, he would have a job for life. In addition, plaintiff had received no written or oral criticism of his work and no warning that his employment might be terminated or that he might be disciplined. Moreover, the company had very clear procedures for terminating employees; procedures that the defendants failed to follow in the case before the Court. Pugh, 116 Cal.App.3d at 316-18, 324-27, 171 Cal.Rptr. 917.
None of the cases cited by plaintiff or defendant entailed a Court's exclusive reliance on the longevity of the employee's term of employment with the company as sufficient evidence of an implied contract term. Rather, each court scrutinized the employment relationship as a whole and looked particularly to the existence of both personal promises by top management officials to the employee that he would not be terminated without cause, and clear procedures for terminating employees. In fact, in Tollefson v. Roman Catholic Bishop, 219 Cal.App.3d 843, 856, 268 Cal.Rptr. 550 (1990), the Court held that "lengthy service combined with promotions and salary increases are natural occurrences for an employee who remains with an employer for a substantial length of time and do not evince or create an implied agreement for permanent employment."
Defendants have established that plaintiff had received at least ten deficiency interviews for his sales performance, had been reprimanded eight times, and had attended 20 training sessions to correct the problem. Konopik Declaration, Exhibit B; Deposition of Walter A. Hoy at 48; Declaration of Edward McComb, Exhibits D-G, I-K. Plaintiff has provided no evidence that defendants failed to follow their normal procedures in terminating his employment.[4] Defendants *887 have also demonstrated that the plaintiff received no personal assurances that he would only be terminated "for cause".
Plaintiff contends that Mr. James Lapsley, the manager of the store where the plaintiff worked, admitted that he only fired people "for cause". However, plaintiff omitted the page of Mr. Lapsley's deposition in which he stated that it was the company's prerogative to fire people with or without cause. Mr. Lapsley admitted that he had a personal policy of firing people "for cause" only, but it was the company policy to terminate employees with or without notice or cause. See Supplemental Declaration of Jane M. Konopik In Support of Defendants' Motion for Summary Judgment or, in the Alternative, for Summary Adjudication of Issues (Supplemental Konopik Declaration), Exhibit D. Plaintiff has also failed to provide any evidence that Mr. Lapsley ever advised him that he could only be terminated "for cause". Moreover, unlike the situation in Pugh v. See's Candies, Inc., supra, where several successive company presidents promised the plaintiff he would only be fired "for cause", even if Mr. Lapsley had so advised plaintiff in the case before the Court, plaintiff has failed to establish that Mr. Lapsley had the authority to alter Sears' contractual relationship with its employees.
In support of his contention that it was general knowledge that people were only terminated "for cause", plaintiff submits his declaration and the deposition of Theresa Price, one of his co-workers. However, this testimony fails to establish plaintiff's contention that this knowledge was "general" and amounts to no more than a recitation of the subjective impressions of selected employees without any apparent foundation for these conclusions or their relevance.
Apart from the longevity of his term with Sears, Roebuck and Company, plaintiff has therefore failed to establish any of the requisite elements for this Court's finding the existence of an implied contract to terminate plaintiff's employment "for cause".
2. Whether Defendants Had Good Cause to Terminate Plaintiff
Defendants contend that even if the Court were to find that there existed an implied contract that plaintiff would only be terminated "for cause", there existed good cause for terminating the plaintiff he failed to meet his sales quota.
A Court may rule on whether there existed good cause for termination of employment on a motion for summary judgment. Fowler v. Varian Associates, Inc., 196 Cal.App.3d 34, 42-43, 241 Cal.Rptr. 539 (1987). Instances of poor performance are justifiable reasons for termination. Knights v. Hewlett Packard, 230 Cal.App.3d 775, 780, 281 Cal.Rptr. 295 (1991). When it is clear that an employee is terminated on the grounds of poor performance, where "there [is] no hint that the asserted reason for [an employee's] termination was capricious or unrelated to business needs or goals, or pretextual.... a jury should not be allowed to decide the correctness of [the employer's] business judgment in terminating" the employee. Moore v. May Dept. Stores Co., 222 Cal.App.3d 836, 271 Cal.Rptr. 841 (1990).
Defendants contend that they terminated the plaintiff because he failed to meet his sales quota; in fact, defendants contend he had one of the worst M/A sales records in the Concord office. Konopik Declaration, Exhibits A-C; Supplemental Konopik Declaration, Exhibit A. Though defendants discussed this matter with the plaintiff on several occasions, and despite the fact that plaintiff attended 20 training sessions, his sales numbers continued to decline. See Declaration of Edward McComb, Exhibits A-D; Konopik Declaration, Exhibit B. By August of 1991, plaintiff's M/A ratio was 3.98%. The sales goal was 5.0% in 1990, and 5.43% in 1991. See Declaration of Edward McComb, ¶ 7.
Plaintiff attempts to rebut this argument by contending that another employee's sales record was worse, that the 5.43% was an unreasonable quota, and that plaintiff was fired for pretextual reasons.
*888 Plaintiff's contention that there was another employee, Theresa Price, with lower sales figures is not supported by the evidence.[5] See Konopik Declaration, Exhibit A-C. By reviewing the table provided by defendants, it is clear that Theresa Price's M/A sales figures were higher than plaintiff's for all of 1990 and for the period from July-August of 1991.
Plaintiff also asserts that the 5.43% sales figure was unreasonable. Plaintiff offers in support of this proposition the declaration of Mr. Berdell Schneider, the former manager of the appliance division in Concord. Mr. Schneider testified that no one could reasonably be expected to meet a 5.0% (or higher) quota, and in fact he never knew of any individual who met the quota or was terminated for failing to meet the quota. Plaintiff contends that defendants have failed to provide any information identifying any individual who met the 5.0% quota.
However, defendants, in fact, have submitted statistics demonstrating that many people met the 5.0% sales quota. Konopik Declaration, Exhibit B. Defendants also submitted the Declaration of E. Hutcheon Gibb (Gibb Declaration), the manager of a Sears store in Santa Rosa, who has also terminated employees for failing to meet the sales quota. Gibb Declaration, ¶ 2. Moreover, in each of the depositions submitted by the plaintiff, former and current employees admitted that in late 1990 and early of 1991, the Company had notified them, through their managers, that failure to meet the sales quotas could result in termination. See Deposition of Theresa Price, at 31-32; Deposition of John Plato, at 46, Deposition of S. Wesley Russell, at 25-26; and Deposition of Michael Ambrose, at 19. More importantly, plaintiff was not only fired because he failed to meet his quota, but also because he had one of the lowest sales records in the Concord store.
Even if the Court were to accept plaintiff's assertion that the quota was unfair and difficult to meet, such a finding would not warrant a ruling in plaintiff's favor. Absent some showing that the termination of plaintiff's employment was pretextual, the fact finder should not decide the correctness of an employer's termination of a plaintiff's employment. Moore v. May Dept. Stores Co., supra.
Plaintiff cannot prevail on his assertion that he was fired for pretextual reasons. Plaintiff alleges that the defendants fired him to prove that a senior employee who failed to meet his quotas could be fired. Assuming this contention to be true, plaintiff fails to provide any authority that such a reason cannot constitute good cause to terminate an employee. Moreover, plaintiff's assertion only underscores the fact that he failed to meet his sales quota.[6]
D. Breach of Implied Covenant of Good Faith and Fair Dealing
The implied covenant of good faith and fair dealing requires that the employer act fairly and in good faith. Burton v. Security Pacific Nat. Bank, 197 Cal.App.3d 972, 979, 243 Cal.Rptr. 277 (1988). In an employment termination case, this covenant "is only a promise not to terminate the employment without `... some good reason ...' or `a fair and honest course of reason, regulated by good faith.'" Clutterham v. Coachmen Industries, Inc., 169 Cal.App.3d 1223, 215 Cal. Rptr. 795 (1985).
Under California law an action cannot lie for breach of the implied covenant of good faith, when an employee may be terminated "at will". Hejmadi v. AMFAC, *889 Inc., 202 Cal.App.3d 525, 547, 249 Cal.Rptr. 5 (1988); Gianaculas v. Trans World Airlines, Inc., supra, 761 F.2d at 1394-95. In this case, plaintiff was clearly a party to an "at-will" employment contract. However, even if he was a "for cause" employee, plaintiff has failed to establish that he was terminated without good cause or in violation of the implied covenant of good faith and fair dealing.
To establish a breach of this covenant by asserting the employer terminated the employee based upon an improper motive, plaintiff must provide factual evidence that the dismissal was pretextual. Where plaintiff provides "no factual foundation for [the] claim that the stated reason for discharge ... was a mere pretext for some other, impermissible reason," summary judgment in favor of the employer is proper. Burton, 197 Cal.App.3d at 978, 243 Cal.Rptr. 277.
As previously noted, defendants have provided this Court with evidence that plaintiff's job performance was poor, and that the defendants had worked with plaintiff on numerous occasions in an attempt to correct the problem. However, plaintiff failed to improve his sales performance. Plaintiff's own evidence establishes that everyone at Sears was aware that, since Sears' reorganization, people would be terminated for failing to meet their quotas.
This Court has also already determined that plaintiff has failed to offer any persuasive pretextual reason for his termination. Plaintiff's proffered reason for his termination actually underscores the fact that he failed to meet his sales quota.
CONCLUSION
Plaintiff's employment contract clearly was "at will" rather than "for cause". Since there was an express "at will" provision both in plaintiff's employment application and defendants' personnel handbook; no "for cause" term may be implied in the employment contract. However, even if plaintiff's employment was terminable "for cause" only, defendants had good cause to terminate his employment. Accordingly
IT IS HEREBY ORDERED THAT
1. Defendants' motion for summary judgment is GRANTED.[7]
IT IS SO ORDERED.
NOTES
[1] The Court considers adjudication of the instant motion suitable without oral argument. See N.Dist. Local Rule 220-1.
[2] Plaintiff, in the Declaration of Walter Hoy in Opposition to Defendants [sic] Motion for Summary Judgment, Exhibit 4, provides a copy of an "Agreement of Terms and Conditions of Compensation for Big Ticket Salespeople." Plaintiff contends that, as this contract does not mention whether he can be fired "at will", he must be a "for cause" employee. However, as defendant correctly points out, this document is irrelevant to the Court's inquiry, because it has nothing to do with the terms of plaintiff's employment; rather, it deals only with his compensation.
[3] Plaintiff alleges that if the Court finds that plaintiff could be terminated "at will", the employment contract should be deemed a contract of adhesion. Plaintiff's Opposition to Motion for Summary Judgment or, in the Alternative, Summary Adjudication at 9-12. Plaintiff has cited no case authority for the proposition that "at will" employment contracts are unconscionable. To find a contract of adhesion, a court must find that the term violates public policy, is unconscionable, and was added in bad faith. As Cal. Labor Code § 2922 and the relevant case law create a presumption that an employment contract is an "at will" contract, plaintiff cannot establish that the "at will" language in the employment application and the personnel manual is against public policy or unconscionable.
[4] Plaintiff contends that a memo to Sears' regional/district managers "seems to indicate" that someone who fails to meet the sales quota should not be terminated. Plaintiff's Opposition, at 19. However, the memo merely advises that "an alternative to termination is reassignment...." Declaration of Rand L. Stephens in Support of Memorandum of Points and Authorities in Opposition to Defendants' Motion for Summary Judgment and in the Alternative, Motion for Summary Adjudication of Issues, Exhibit 2. This memo does not prohibit termination of an employee who fails to meet his quota; reassignment is only advanced as an alternative.
[5] Plaintiff, at several points in his opposition papers, contends that the defendants have withheld documents. However, plaintiff has never filed a discovery motion or a motion pursuant to Fed.R.Civ.P. 56(f) to continue the instant motion pending discovery. Plaintiff does not contend that any of the evidence currently before the Court was withheld from him, nor does he explain how any additional information would be relevant in light of the documents currently before this Court.
[6] Plaintiff cites K Mart Corp v. Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987), which stands for the proposition that an employer cannot terminate an employee to avoid paying his pension benefits. Plaintiff's Opposition, at 15. As plaintiff has not alleged that Sears' fired him to avoid paying his pension benefits, this case is inapposite.
[7] Defendants raise several objections, which plaintiff has not opposed, to the declarations and evidence presented by the plaintiff in conjunction with this motion. See Defendants' Objections to Plaintiff's Evidence. As the Court has granted defendants' motion for summary judgment, the Court will not reach the merits of these objections. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261520/ | 85 N.J. 539 (1981)
428 A.2d 913
JAN SHERMAN KAHLE, PETITIONER-APPELLANT,
v.
PLOCHMAN, INC., RESPONDENT-RESPONDENT.
The Supreme Court of New Jersey.
Argued December 1, 1980.
Decided April 27, 1981.
Gerald M. Eisenstat argued the cause for appellant (Shapiro, Eisenstat, Capizola, O'Neill & Gabage, attorneys).
*540 David A. Sacks argued the cause for respondent (Horn, Kaplan, Goldberg & Gorny, attorneys; Glenn E. Gronlund, on the brief).
The opinion of the Court was delivered by CLIFFORD, J.
The Workers' Compensation Act precludes an award of compensation "when the injury or death is intentionally self-inflicted." N.J.S.A. 34:15-7. Petitioner's decedent was injured in an accident arising out of and in the course of her employment. Ten years later she committed suicide. The judge of compensation dismissed petitioner's dependency claim petition on the ground that the employee's death was "intentionally self-inflicted" within the meaning of the statutory preclusion. We ordered direct certification of petitioner's appeal pending unheard in the Appellate Division, 84 N.J. 417 (1980); R. 2:12-1, and now reverse.
I
On February 11, 1966 Rosalie Kahle (employee) was seriously injured in the course of her employment when a skid fell on her back at respondent's mustard-packing plant in Vineland, New Jersey. Employee was twenty-six years old, was married, had one child, and was three months pregnant with her second child at the time of the accident. She sustained injuries to her back and left leg which over the course of the next several years required hospitalization surgical removal of a lumbar disc and spinal fusion, and the prescription of medication for pain and depression. In 1971 a judge of compensation awarded 66 2/3% permanent partial disability for the orthopedic, neurological and psychiatric consequences of her work-connected accident.
The years of Mrs. Kahle's life following the compensation award continued to be dominated by unremitting pain and increasing disability. She never returned to work. Her medications included anti-depressants, pain relievers and sleeping *541 pills. She was diagnosed as suffering at various times from a convulsive disorder caused by drug withdrawal, severe compressive lumbar and dorsal arachnoiditis (inflammation of the membrane of the spinal cord), a neurogenic bladder, anemia, iron deficiency and chronic cystitis. Mrs. Kahle was rehospitalized in 1972 for spinal injections and again in 1973 for the surgical implant of a dorsal column stimulator (a battery operated electrode positioned below the collarbone and intended to eliminate pain electronically), a measure later conceded to have been unsuccessful. There were further hospitalizations in 1974 and on three occasions in 1975. Dorsal nerve blocks were performed and Mrs. Kahle was reduced to using crutches. In late 1975, trying to negotiate some cellar stairs she fell and injured her head, neck and back, resulting in additional hospital confinement. Thereafter the treating physician prescribed foot drop braces for both feet. A month before her death Mrs. Kahle received a nerve block for chest pain and two weeks later a renewal of a narcotic prescription.[1]
During the night preceding her death petitioner's decedent complained of pain and slept fitfully. Sometime after four o'clock in the morning of May 2, 1976 she wrote two poignant notes, one to her husband and the other to her treating physician of ten years. Shortly thereafter she ended her life with a single rifle shot to her head. The notes make it abundantly clear that Mrs. Kahle was no longer able to bear her pain, anxiety and depression.
II
Petitioner, widower of the deceased employee and father of their two young sons, filed a claim for death benefits for himself *542 and on behalf of the children. The dependency claim petition alleged that Mrs. Kahle's suicide was the result of the severe pain, anxiety and depression caused by the work-connected injuries sustained in the accident at respondent's plant. Respondent denied the compensability of the suicide.
At the ensuing hearing petitioner produced Dr. Theodore Kushner, a neuropsychiatrist who had examined the decedent on two occasions, the second being in January 1976, approximately three months prior to her death. Dr. Kushner testified that at the last examination he found Mrs. Kahle to be depressed and anxious. He diagnosed her psychiatric condition as post-traumatic anxiety depressive reaction, which he assessed at a 40% psychiatric disability rating. He described her psychiatric condition at that time as "chronically anxious and moderately depressed" but "free of psychosis." Dr. Kushner proffered his medical opinion that when he examined the employee in January 1976, "she was totally disabled with no possibility of recovery or rehabilitation." In response to a detailed hypothetical question put forth by counsel for petitioner, the neuropsychiatrist concluded that Mrs. Kahle's suicide was a direct consequence of the work-connected injury she sustained on February 11, 1966, after ten years of unusual suffering, increasing disability, chronic unremitting pain, depression, drug dependency, "and finally the knowledge that she would never recover." Respondent introduced no evidence at the hearing and produced no witnesses of its own, being content to rely on the legal argument that by virtue of N.J.S.A. 34:15-7 suicide is not a compensable death under New Jersey law of workers' compensation.
In ruling that Mrs. Kahle's suicide was "intentionally self-inflicted" within the meaning of N.J.S.A. 34:15-7 and therefore not a compensable death, the compensation judge relied upon the standard announced in the case of In re Sponatski, 220 Mass. 526, 108 N.E. 466 (Mass. 1915), adopted sub silentio in Konazewska v. Erie R.R. Co., 132 N.J.L. 424 (Sup.Ct. 1945), aff'd, 133 N.J.L. 557 (E. & A. 1946). Under the Sponatski rule, a suicide following a work-connected injury is compensable only "where *543 there follows as the direct result of a physical injury an insanity of such violence as to cause the victim to take his own life through an uncontrollable impulse or in a delirium of frenzy `without conscious volition to produce death, [without] having knowledge of the physical consequences of the act' * * *." 220 Mass. at 530, 108 N.E. at 468 (quoting Daniels v. New York, New Haven & Hartford R.R., 183 Mass. 393, 67 N.E. 424 (Mass. 1903). Or, as the judge of compensation put it, an employee's suicide is not compensable unless the worker (1) as the direct result of a physical injury, (2) was possessed of an uncontrollable impulse to commit suicide or was in a delirium of frenzy, (3) did not consciously intend to kill himself, and (4) did not realize the consequences of his act of self-destruction. Because the petitioner's proofs fell short of satisfying the Sponatski test, judgment was entered in favor of the employer.
In applying the Sponatski formula to the plight of the employee in the instant case, the judge recognized that Mrs. Kahle unquestionably suffered intense pain from the date of her work-connected injury through the time of her death, and that the mental consequences of this prolonged suffering required two hospitalizations for psychiatric examination. Of greater importance to the judge, however, were the negating facts that employee did not require active psychiatric care, had no diagnosed psychosis, and was 60% functional psychiatrically. He also determined that the employee's conduct immediately prior to her death, particularly the writing of farewell notes to her husband and her physician, evidenced conscious volition to produce death and knowledge of the consequences of her act factors militating against recovery under the Sponatski rule.
The compensation judge was guided by the general statement from Professor Larson's treatise that under Sponatski, "[t]he compensable cases are frequently marked by some violent or eccentric method of self-destruction while the noncompensable cases usually present a story of quiet but ultimately unbearable agony leading to a solitary and undramatic suicide." See 1A Larson, Workmen's Compensation Law § 36.21 (1978). It is *544 apparent that under Sponatski the suicide of the employee in the present case falls within the latter category of tragic but noncompensable cases.
III
Petitioner's appeal does not challenge the compensation judge's findings of fact. Nor does it disagree that the Sponatski formula is currently recognized as controlling law in New Jersey as to the circumstances under which an employee suicide is an "intentionally self-inflicted" death for the purposes of the statutory exclusion in N.J.S.A. 34:15-7. See Konazewska, supra; Kazazian v. Segan, 14 N.J. Misc. 78 (N.J. Dept. Labor 1936). Rather, petitioner's brief urges us to overrule "this antiquated [Sponatski] doctrine to bring New Jersey in line not only with the modern view in other states, but also with the spirit of our court's prior interpretations of our compensation law."
At the time the Konazewska decision was affirmed by the Court of Errors and Appeals in 1946, the Sponatski test was the standard followed by the majority of states in suicide-compensation cases. This standard, however, has been gradually displaced as the majority rule by the "chain-of-causation" test, under which death benefits may be awarded to dependents of employees whose suicides are shown to be causally related to a disturbance of mind arising from the pain, despair and psychiatric consequences of work-connected injuries. See 1A Larson, supra, at § 36.10. The leading case espousing the chain-of-causation rule is Whitehead v. Keene Roofing Co., 43 So.2d 464 (Fla. 1949), in which the Supreme Court of Florida reviewed a widow's claim for death benefits under a statutory provision that precluded compensation for injuries "occasioned primarily * * * by the wilful intention of the employee to injure or kill himself." 43 So.2d at 465 (quoting Fla. Stat. Ann. § 4440.09(3) (West 1941)). Concluding that the suicide of the deceased employee was directly attributable to the mental disturbance that arose out of physical injuries he sustained in a fall from a *545 roof on which he was working, the Whitehead court posed what has since become the classic statement of the rule:
We believe that in those cases where the injuries suffered by the deceased result in his becoming devoid of normal judgment and dominated by a disturbance of mind directly caused by his injury and its consequences, his suicide cannot be considered "wilful" within the meaning and intent of the Act. [43 So.2d at 465.][2]
The issue of the compensability of an employee suicide under the Whitehead standard turns not on the employee's conscious volition or knowledge of the consequences of his act, but rather on the existence of an unbroken chain of causation from the work-connected injury to the suicide. See 1A Larson, supra, at § 36.30.
The majority of American jurisdictions whose workers' compensation statutes contain an exclusion for wilfully, purposefully or intentionally self-inflicted injury or death have adopted the chain-of-causation test as the proper standard for interpreting the operative term "wilful," "purposeful" or "intentional." See, e.g., Graver Tank & Manufacturing Co. v. Industrial Commission, 97 Ariz. 256, 399 P.2d 664, 668 (Ariz. 1965); Reynolds Metals Co. v. Industrial Commission, 119 Ariz. App. 566, 582 P.2d 656 (Ariz. Ct. App. 1978); Delaware Tire Center v. Fox, 401 A.2d 97, 100 (Del. Super. Ct. 1979), aff'd, 411 A.2d 606, 607 (Del. 1980); Jones v. Leon County Health Department, 335 So.2d 269, 271 (Fla. 1976); Whitehead v. Keene Roofing Co., supra; Harper v. Industrial Commission, 24 Ill.2d 103, 180 N.E.2d 480 (Ill. 1962); *546 Thompson v. Lenoir Transfer Co., 48 N.C. App. 47, 268 S.E.2d 534, 536-37 (N.C. Ct. App. 1980); Petty v. Associated Transport, Inc., 276 N.C. 417, 173 S.E.2d 321, 328 (N.C. 1970); Saunders v. Texas Employers' Insurance Association, 526 S.W.2d 515 (Tex. 1975); Brenne v. Department of Industry, Labor & Human Relations, 38 Wis.2d 84, 156 N.W.2d 497 (Wis. 1968). Under this test an employee's death by suicide is compensable if it is shown to be the result of the disturbance of mind caused by a work-connected injury and its consequences, such as severe pain, depression and despair, and is of such severity as to override normal rational judgment. See e.g., Delaware Tire, supra, 411 A.2d at 607; Graver Tank, supra, 399 P.2d at 668. An act of suicide committed under circumstances in which the decedent was devoid of normal judgment is not considered to be wilfully, purposefully or intentionally self-inflicted within the meaning of the various statutory exclusions, regardless of whether the act was committed with conscious volition or knowledge of its consequences.
We hold that the chain-of-causation test is a more realistic and reasonable standard than the Sponatski rule. It is to be incorporated henceforth in the New Jersey law of workers' compensation. Under the rule we adopt today an employee's death by suicide is compensable where the original work-connected injuries result in the employee's becoming dominated by a disturbance of mind directly caused by his or her injury and its consequences, such as extreme pain and despair, of such severity as to override normal rational judgment. A suicide committed by an employee suffering from such disturbance of mind is not to be considered "intentional" within the meaning and intent of N.J.S.A. 34:15-7, even though the act itself may be volitional. See Delaware Tire, supra, 401 A.2d at 100. The Sponatski rule's emphasis on the employee's conscious volition and knowledge of the physical consequences of his or her act virtually ignores the role that severe pain, anxiety, despair and prescribed psychotropic drugs may play in breaking down a rational mental process. See Delaware Tire, supra, 411 A.2d at 607; Graver *547 Tank, supra, 399 P.2d at 667-68; Harper, supra, 180 N.E. at 483. The Sponatski analysis also fails to recognize that the disturbance of mind that destroys the employee's will to survive may itself be a product of the work-connected injury.
Today's decision not only falls in line with the trend of enlightened judicial determinations in other jurisdictions, but also is in accordance with the often expressed intent and purpose of New Jersey Worker's Compensation Act. It has long been axiomatic to this Court that the Act is remedial social legislation and should be given liberal construction in order that its beneficent purposes may be accomplished. Panzino v. Continental Can Co., 71 N.J. 298, 303 (1976); Torres v. Trenton Times Newspaper, 64 N.J. 458, 461 (1974); Petrozzino v. Monroe Calculating Machine Co., Inc., 47 N.J. 577, 580 (1966). It is for this reason that in construing the statutory exclusion of benefits for "intentionally self-inflicted" injury or death, N.J.S.A. 34:15-7, this Court is not bound by its coldly literal import. Paul v. Baltimore Upholstering Co., 66 N.J. 111, 136 (1974). Rather, by holding compensable those suicide cases in which work-connected injury causes such disturbance of mind as to impair the employee's capacity for normal reason and rational judgment, we honor the legislative purpose of relieving society as a whole of the burden of supporting dependents of those whose death is caused by work-connected injuries. See Petrozzino, supra, 47 N.J. at 580.
IV
In the trial of this case the parties relied upon and were confined by the existing state of the law. Because we now overrule Konazewska, supra, and reject the Sponatski rule, we remand to the Division of Workers' Compensation for the creation of a supplemental record and a determination of whether this case falls within the rule declared today. Whereas Dr. Kushner's testimony leaves no doubt whatsoever that in his opinion there was a direct and unbroken chain of causation *548 between the decedent's compensable accident and her eventual suicide, nevertheless he was not asked and hence had no occasion to testify whether the accidental injury and its residuals so disturbed Mrs. Kahle's mind as to deprive her of normal reason and impair her capacity to exercise rational judgment. Should that necessary link in the chain be provided at the hearing on remand, respondent must likewise have the opportunity to introduce evidence countering petitioner's contention that the decedent's suicide was a direct consequence of the work-connected injury within the rule as announced today.[3]
At the risk of repetition, which we hazard out of a concern that there be no mistaking the import of our decision, in the remanded proceedings the burden will be on petitioner to establish by competent medical expert testimony that the employee's suicide was the result of her becoming devoid of normal judgment and dominated by a disturbance of mind directly caused by her work-connected injury and its consequences. Petitioner must prove by a preponderance of the expert medical evidence that there was an unbroken chain of causation between the compensable injury, the employee's disturbance of mind, and her ultimate suicide. Respondent can attack that causal chain with any competent evidence that the decedent suffered from no such disturbance of mind, or perhaps that there were far stronger nonemployment-connected influences accounting for her suicide. In those or other similar circumstances the respondent will thereby have successfully rebutted petitioner's showing of a direct causal connection between the industrial injury and death. In that event the statutory preclusion of death benefits for "intentionally self-inflicted" death would be a complete defense for respondent.
*549 Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
For reversal and remandment Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK-7.
For affirmance None.
NOTES
[1] The employee's last compensation payment was received from respondent on October 25, 1975. On March 5, 1976, Mrs. Kahle filed a First Application for Review or Modification claiming an increase in disability. On June 18, 1976, six weeks after the employee's death, respondent filed an Answer admitting that the disability had increased since the date of the original award to the point that the employee had become totally disabled prior to her death.
[2] The Whitehead test has been applied to workers' compensation statutes that, like N.J.S.A. 34:15-7, employ the term "intentionally self-inflicted" to describe noncompensable industrial injury or death. See, e.g., Redmond v. Workmen's Compensation Appeals Board, 36 Cal. App.3d 302, 111 Cal. Rptr. 530 (Ct.App. 1973); Burnight v. Industrial Accident Commission, 181 Cal. App.2d 816, 5 Cal. Rptr. 786, 791 (Dist.Ct.App. 1960) (interpreting Cal.Lab.Code § 3600 (West 1971)); McDonald v. Atlantic Steel Co., 133 Ga. App. 157, 210 S.E.2d 344, 345 (Ga. App. 1974) (interpreting Ga.Code § 114.105 (1975 & Supp. 1976)); Brenne v. Department of Industry, Labor & Human Relations, 38 Wis.2d 84, 156 N.W.2d 497 (Wis. 1968) (interpreting Wis. Stat. § 102.03(1)(d) (1979)). See generally Larson, The Suicide Defense in Workmen's Compensation, 23 Buffalo L.Rev. 43 (1973).
[3] We are aware of the fact that the judge of compensation who heard this case has since died. We anticipate that at the remanded proceedings the judge who hears the case will rely on the record created heretofore, supplemented by whatever additional proofs the parties may produce bearing on the rule announced in this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261527/ | 861 F.Supp. 1 (1994)
UNITED STATES of America
v.
Jesus M. ACOSTA.
Cr. No. 93-0121 P.
United States District Court, D. Rhode Island.
July 28, 1994.
Gerard B. Sullivan, Asst. U.S. Atty., Providence, RI, for the U.S.
Thomas G. Briody, Providence, RI, for plaintiff.
MEMORANDUM AND ORDER
PETTINE, Senior District Judge.
Defendant Jesus Acosta was convicted in this court of one violation of 18 U.S.C. § 922(g) (1988) (firearm possession). The government filed a Motion Concerning Information Charging Prior Offenses to inform the court that Mr. Acosta has three previous convictions for serious drug offenses and is therefore subject to be sentenced as an Armed Career Criminal under 18 U.S.C. § 924(e)(1) (1988). Mr. Acosta argues that one of his prior convictions is under collateral attack and cannot be considered a "final" conviction within the meaning of the Armed Career Criminal Act. For the reasons set forth below, the government's motion is granted.
The Armed Career Criminal Act functions to enhance sentences when a defendant is convicted under section 922(g) and has a history of violent felonies or drug offenses. The sentence imposed by the Act is in addition to any sentence imposed for the underlying offense. The applicable portions of the Armed Career Criminal Act are as follows.
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, ...
18 U.S.C. § 924(e)(1). Thus, a sentence is not enhanced under this Act unless there are three predicate convictions. Mr. Acosta argues that he does not qualify for the Act because he does not have three final convictions.
In October 1988, Mr. Acosta pleaded guilty to a charge of conspiracy to traffic *2 marijuana in Florida state court. Mr. Acosta was sentenced to 366 days in prison but apparently was released a few months later. Mr. Acosta filed a request for postjudgment relief in the Florida state court system on May 9, 1994. He attacks the 1988 conviction on the ground that the trial judge did not inquire as to the factual basis for the plea. Mr. Acosta now argues that the pendency of this collateral attack means that the government lacks the necessary convictions to support a section 924(e)(1) enhancement.
The government contends that this issue was settled in Custis v. United States, ___ U.S. ___, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). In Custis, the Supreme Court held that a defendant in a federal sentencing proceeding has no right to collaterally attack the validity of prior state convictions which are used to enhance his sentence under the Armed Career Criminal Act. However, the Court noted that defendant who was still "in custody" could attack his state convictions in state court or through federal habeas review. Id. at ___, 114 S.Ct. at 1738. Mr. Acosta is not attempting to collaterally attack his Florida conviction during his sentencing proceedings because he has already attacked that conviction. Since Mr. Acosta attacked his Florida conviction in a Florida court prior to the sentencing in the present case, the Custis decision is not applicable in this case.
The question therefore is whether a final conviction becomes a pending conviction with the filing of a collateral attack. In United States v. Allen, 24 F.3d 1180 (10th Cir.1994), the Tenth Circuit considered a similar issue. In Allen, the defendant received an enhanced sentence under the career offender category of the United States Sentencing Guidelines. Under section 4B1.1, a defendant is subject to an enhanced sentence, if 1) he was at least eighteen years of age at the time of the offense, 2) the offense of conviction is either a crime of violence or a controlled substance offense, and 3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. Because the conviction at issue in Allen was the defendant's fifth conviction, the district court applied the career offender guideline.
Allen argued that the enhancement was improper because four of his five prior convictions were under collateral attack at the time of sentencing and therefore were not final. The court rejected his argument. "Acceptance of this argument would undermine substantially the finality of the judgment and render prior convictions unreliable on an almost open ended basis. It would allow criminal defendants an expedient method of avoiding enhancement." Id. at 1187. The court went on to note that "in this case Allen filed collateral attacks on his prior convictions shortly before sentencing, but long after those judgments were otherwise final." Id. Mr. Acosta seems to have adopted the same strategy. His conviction was final in 1988 but his collateral attack did not take place until May of 1994. Thus, the Tenth Circuit addressed and rejected the same argument that Mr. Acosta raises in the present case, albeit under a different statute.
The Ninth Circuit reached the same result in United States v. Guzman-Colores, 959 F.2d 132 (9th Cir.1992). In that case, the defendant filed a petition for post-conviction relief and argued that the petition should stay finality of his convictions under 21 U.S.C.A. § 841 (West Supp.1994). Section 841 operates in the same manner as section 924(e) and the career offender guideline. Under section 841, a defendant who violates the narcotics laws and "commits such a violation after one or more prior convictions for an offense punishable under this paragraph, or for a felony ... relating to narcotic drugs ... have become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment ..." Id. at § 841(b)(1)(B). Defendant had been found subject to the enhancement provisions of section 841. The court rejected the argument that his convictions were not final, holding that the defendant's "prior convictions became final once the time for direct review passed." Guzman-Colores, 959 F.2d at 133.
The compelling interest in orderly judicial administration would be significantly impaired were we to hold otherwise. The marginal gains in accuracy that might result from delaying imposition of an enhanced sentence pending the outcome of *3 post-conviction proceedings would not justify the anticipated disruptions in sentencing procedures, as well as the incentives to file frivolous post-conviction petitions.
Id. at 136. The court also noted that "no court of appeals has gone so far as to hold that a post-conviction proceeding in another court stays finality of prior convictions under § 841." Id. at 136 n. 3.
Although both the Ninth and Tenth Circuits addressed the issue in the context of other statutes, I find the reasoning of Allen and Guzman-Colores persuasive. If the filing of a collateral attack rendered a conviction non-final, it is easy to imagine that many convictions would never be considered to be final. The cases cited by Mr. Acosta do not mandate a different result. In Williams v. United States, 651 F.2d 648 (9th Cir.1981), the Court discussed whether a prior conviction is final in the context of direct appellate review, which presents a different set of circumstances than the case presently before me.
Mr. Acosta cites Domegan v. United States, 703 F.Supp. 166 (D.Mass.1989) for the proposition that an enhanced sentence should not be based upon a constitutionally invalid conviction. "When the underlying convictions are constitutionally invalid, it is improper to let the enhanced sentence stand." Id. at 169. This statement is certainly true and is not in dispute in this case. However, Mr. Acosta's Florida conviction has not yet been found to be invalid. By holding Mr. Acosta subject to section 924(e), he is not without recourse should the 1988 conviction be found unconstitutional. If the Florida courts determine that Mr. Acosta's constitutional rights were violated, he is able to petition for review of his enhanced sentence. As the Tenth Circuit noted, "should any of the courts considering the collateral challenges determine that those sentences are unconstitutional, [the defendant] will retain the ability to challenge the enhancement imposed in this case under 28 U.S.C. § 2255." Allen, 24 F.3d at 1187.
In light of the above discussion, I hold that the filing of a post-conviction collateral attack upon a judgment of another court does not render a conviction non-final for sentencing purposes under 18 U.S.C. § 924(e). The government's motion is therefore granted.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261528/ | 290 Md. 33 (1981)
428 A.2d 75
MORTON E. ROME, SURVIVING PERSONAL REPRESENTATIVE OF THE ESTATE OF JEAN ARTHUR LOWENTHAL ET AL.
v.
PILAR LOWENTHAL ET AL.
[No. 49, September Term, 1980.]
Court of Appeals of Maryland.
Decided April 6, 1981.
The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
Stephen C. Winter, with whom were White, Mindel, Clarke & Hill on the brief, for appellants.
Leslie D. Gradet, with whom were John D. Alexander, Jr., and Allen, Thiebolt & Alexander on the brief, for appellees.
*34 SMITH, J., delivered the opinion of the Court.
We shall here hold that the term "transcript of the proceedings" appearing in Maryland Code (1974, 1979 Cum. Supp.) § 12-502 (b), Courts and Judicial Proceedings Article, relative to a de novo appeal from an orphans' court to a circuit court does not mean a transcript of testimony. Hence, we shall affirm the judgment of the Court of Special Appeals in Lowenthal v. Rome, 45 Md. App. 495, 413 A.2d 1360 (1980). It reversed an order of the Superior Court of Baltimore City dismissing an appeal to it from the Orphans' Court of Baltimore City.
Pilar Lowenthal et al. sought judicial probate in the Orphans' Court of Baltimore City of a document dated March 3, 1976, which they said was the last will and testament of Jean Arthur Lowenthal. This was opposed by Morton E. Rome, surviving personal representative of Jean Arthur Lowenthal under a will which earlier had been admitted to administrative probate by that court. The orphans' court heard testimony and then denied judicial probate. An appeal was then entered to the Superior Court of Baltimore City.
Two modes of appeal from orphans' courts are provided by our statutes, to the Court of Special Appeals (§ 12-501) or to the circuit court of the county or the Superior Court of Baltimore City (§ 12-502). If the appeal goes to the Court of Special Appeals the normal appellate processes would be followed since its jurisdiction is appellate only. Shell Oil Co. v. Supervisor, 276 Md. 36, 343 A.2d 521 (1975). If the appeal is under § 12-502, however, it is to "be heard de novo by the appellate court [which is to] give judgment according to the equity of the matter." The nub of this controversy is found in § 12-502 (b). It states:
An appeal pursuant to this section shall be taken by filing an order for appeal with the register of wills within 30 days after the date of the final judgment from which the appeal is taken. Within 30 days thereafter the register of wills shall transmit a transcript of the proceedings to the court to which *35 the appeal is taken unless the orphans' court from which the appeal is taken extends the time for transmitting the transcript.
The complete record by way of original papers was transmitted to the Superior Court of Baltimore City by the Register of Wills of Baltimore City. However, the appeal was dismissed because there was no transcript of testimony included.
The statutes in question are comparatively new. The origin of that relative to transmitting "a transcript of the proceedings" can be traced, however. Prior to the enactment of Chapter 35 of the Acts of 1949 Code (1939) Art. 5, § 69 provided:
If upon an appeal being entered in the orphans' court, the parties shall mutually agree, and enter their assent in writing, to be filed by the register of wills, that the appeal shall be made to the circuit court for the county, or superior court of Baltimore City, the orphans' court shall direct the transcript of the proceedings to be transmitted to the circuit court, or superior court of Baltimore City, whose decision shall be final.
Chapter 35 of the Acts of 1949 amended that section in virtually the language of the present day to provide that a party deeming himself aggrieved by a decree, order, decision or judgment of the orphans' court might appeal to the circuit court for the county or to the Superior Court of Baltimore City "in lieu of the direct appeal to the Court of Appeals provided in Section 64 of ... Article [5]." Provision was then made for the case to be heard de novo and for the further right of appeal to this Court. The statute was silent relative to the record.
The present § 12-502 (b) is virtually the same as Code (1957) Art. 5, § 26. We know precisely from whence it came since Chapter 399 of the Acts of 1957 repealed the preexisting Art. 5 and enacted a new one. Our Standing Committee on Rules of Practice and Procedure had been at *36 work for a number of years prior to 1957. Its Twelfth Report was adopted by the Court on July 18, 1956, effective January 1, 1957, thus bringing into being the Maryland Rules. Prior to that time many provisions relative to practice and procedure were scattered through the Code. As a part of the work of the Rules Committee a subcommittee composed of the Honorable William C. Walsh, H. Vernon Eney, Esq., and C. Keating Bowie, Esq., worked on Chapter 800 relative to appeals. A part of their work included the drafting of statutes necessary as a result of the rules revisions. Their printed tentative draft under date of October 1955 of a bill to revise, repeal, and reenact Art. 5 and certain sections of Arts. 26, 36, and 93 ultimately became Chapter 399 of the Acts of 1957. What was enacted as Art. 5, § 26 was in the exact words of their proposal.
To better understand the language used it is necessary to point out to this generation of lawyers that in the not too distant past, before the creation of the Court of Special Appeals when all appeals came directly to this Court, the original papers were not sent up on appeal as is done today. This was changed as of June 1, 1953, by the adoption by this Court of what was known as Rule 10 providing for the sending forward of original papers. Before that time clerks or registers made up certified copies of the records in their respective offices which were known as "transcripts of records."
The obvious origin of the statute drafted by the subcommittee is former Rule 7 of this Court. It provided:
All appeals allowed from orders or decrees of the Orphans' Courts to the Court of Appeals, shall be taken and entered within thirty days after such order or decree appealed from; and the Register of Wills shall make out and transmit to the Court of Appeals, under his hand and the seal of his office, a transcript of the record of proceedings in such case, within thirty days after the appeal prayed; but in such transcript no paper or proceeding, not necessary to the determination of the appeal, shall be incorporated.
*37 The same language appeared in Code (1951) Art. 5, § 66. The antecedents of that section seem to be Chapter 101 of the Acts of 1798 and Chapter 27 of the Acts of 1842. The latter called for "a full transcript or record of the whole proceedings of the court in such action or other proceedings...."
Similar language relative to "transcripts of records" is found elsewhere. For instance, Rule 6 spoke of "transcripts of records, on appeals from Courts of Equity...." The same language was in Code (1951) Art. 5, § 37. Rule 10 referred to "any appeal ... taken in a Court of Law or Equity, or applications to take up the record as upon Writ of Error allowed" and the requirement that the clerk should make out and transmit to this Court "a transcript of the record of proceedings," the same language which appeared in Code (1951) Art. 5, § 44. In fact, in Miller v. Mencken, 124 Md. 673, 93 A. 219 (1915), when the Court was required to interpret the predecessor of Code (1951) Art. 5, § 66 to determine whether or not a register of wills was required to transmit the record prior to payment of costs, Judge Constable referred for the Court to the other statutes and said, "The words are exactly as those used in the section in regard to clerks of courts of law and equity performing the same duty...." Id. at 677.
Code (1951) Art. 75, §§ 111-124 dealt with the former procedure for removal of cases from one court to another for trial. The term "transcript of record" appears in a number of such sections.
In this case Rome points in support of his position to Monumental Brewing Co. v. Larrimore, 109 Md. 682, 72 A. 596 (1909), in which the Court quoted from Strom v. Montana C.R.R., 81 Minn. 346, 348, 84 N.W. 46 (1900), to the effect that the term "proceedings" in its most comprehensive sense "includes every step taken in a civil action, except the pleadings." The statement in Monumental must be put in its context. What was before the Court was the propriety of the trial judge's instructions to the jury. Monumental was taking exception to his refusal to grant the following prayer:
*38 The Court instructs the jury that under the proceedings in this case there is no evidence legally sufficient to entitle the plaintiff to recover, and therefore the verdict of the jury must be for the defendant. [(Emphasis added.)]
The Court held that the prayer was properly rejected. In so doing it commented that as it and another prayer "ma[d]e no reference to the pleadings, the question presented by them was, as has frequently been decided by this Court, whether the facts that might properly be found by the jury from the evidence constituted a good cause of action." It said that the reference to "proceedings" could not be regarded as having been made to the pleadings "as the two words have neither technically nor ordinarily the same meaning." Id. It was in this context that the Court said:
The pleadings in a case consist of the statements of the litigants in legal form of the facts constituting the cause of action and grounds of defense by which the issue is made up. The proceedings in an action at law, on the other hand, consist rather of the successive acts done and steps taken as parts of the suit during its progress, whether by Court, counsel, clerk or jury. [Id. at 687.]
It then went on to quote from the Minnesota case, saying:
Without adopting all of the views expressed in the cases to which we have referred, we think that the words "pleadings" and "proceedings" are not sufficiently alike in import to be interchangeably employed in instructions to juries.
When it is desired in framing prayers to make special reference to the pleadings in the case it should be done by referring to them as such. [Id. at 688.]
The Minnesota court was involved in construction of a statute which referred to "[a] party to the record of any civil *39 action or proceeding" and the right of an adverse party "upon the trial thereof" to call and examine such persons "as if under cross-examination...." It was contended that the authorization for enforced appearance was "only upon the trial of a civil action" and thus there was error in requiring testimony on a motion to dismiss for lack of jurisdiction. It was in this context that the court said:
This construction gives no effect to the word "proceeding," as used in this statute. In its most comprehensive sense, the term "proceeding" includes every step taken in a civil action, except the pleadings. It is clear that the term is not used in this statute in this broad sense, and equally clear that it is not used as the synonym of "civil action." [Id. at 348-49.]
Rome also relies on Conway v. Ford Motor Company, 48 Ohio App.2d 233, 237, 356 N.E.2d 762, 765 (1976), which it is claimed "found that the meaning of `transcript of proceedings' was `a verbatim transcription of the trial proceedings, including the testimony and exhibits, which is prepared and certified by the court reporter.'" Again, that quotation has to be placed in context. The appeal there was one relative to workmen's compensation. It was contended that the claimant had failed to establish by credible and competent expert medical testimony that he had suffered an aggravation or a substantial aggravation of a preexisting condition. The appellant was relying upon the deposition of a physician called on behalf of the claimant. The rules required a verbatim transcript of proceedings, a narrative statement, or an agreed statement of facts. The clerk was specifically directed by the appellant not to prepare a trial transcript. The issue was said to be "the status of a witness's deposition when it is filed with the clerk of courts." There was nothing in the record before the appellate court to show whether the individual "was a witness at the trial either in person or by the reading of his deposition." It was in this context that the court said:
*40 The mere filing of a deposition of a witness with the clerk of courts pursuant to Civil Rules 30 (F) and 32 (A) does not automatically make such deposition a part of the transcript of proceedings. The transcript of proceedings is a verbatim transcription of the trial proceedings, including the testimony and exhibits, which is prepared and certified by the court reporter pursuant to Appellate Rule 9 (B). [Id. at 237.]
It is suggested that the "rationale of the Court of Special Appeals ignores decisions of this Court" in County Fed. S. & L. v. Equitable S. & L., 261 Md. 246, 274 A.2d 363 (1971), and Volz v. State Roads Commission, 221 Md. 209, 156 A.2d 671 (1959), both of which involved de novo proceedings. Neither case is analogous to the one at bar. Volz was a condemnation proceeding brought by the State Roads Commission under former Code (1957) Art. 89B, §§ 10-20. There had been earlier proceedings before the Board of Property Review for Baltimore County pursuant to Art. 89B, § 16. The property owners pursuant to § 18 appealed from the review board's findings and award. The State Roads Commission filed its petition under § 18 for condemnation. The latter section provided that if either party were dissatisfied with the findings there was a right of appeal to the circuit court, that upon appeal the case should be heard and determined under the procedure set forth in Art. 89B and Art. 33A, and that where the property owner sought the appeal it became the duty of the Commission to file the condemnation case after which the case was to "be heard de novo and as if there had been no hearing before the board of property review." The property owner attempted to dismiss his appeal in order to reinstate the determination by the board of review. Judge Horney said for the Court that in enacting the statute then under consideration the General Assembly "intended to and did distinguish between an appeal, in its ordinary or usual sense, from other administrative agencies or quasi-judicial boards, and an appeal, in the nontechnical sense, from the property review board." Id. *41 214-15. (Emphasis in the original.) The Court determined the statute to be providing for "a condemnation case to be filed in court and heard de novo as the new and independent action it is." Id. In Vallario v. State Roads Comm'n, 290 Md. 2, 426 A.2d 1384 (1981), we have just had occasion to point to the review of the "quick-take" statutes relative to acquisition of land for roads which formerly existed in Code (1957) Art. 89B, §§ 9-20 made by Judge Barnes for the Court in State Roads Comm'n v. Pumphrey, 260 Md. 633, 637-46, 273 A.2d 81 (1971). Art. 89B did not provide the procedures for condemnation. It did specify circumstances under which the State Roads Commission was to proceed to enter a suit to condemn under Art. 33A pertaining to eminent domain.
County Federal was an administrative appeal under Maryland Rule B1 et seq. concerning an application for a charter under Code (1957, 1966 Repl. Vol.) Art. 23, § 161M to the Board of Building, Savings and Loan Commissioners. Art. 23, § 161H (e) provided that the court to which the appeal was taken was to "hear the matter de novo without a jury...." Judge Finan in County Federal relied on Volz in determining for the Court that we could not "accept the proposition that the appeal de novo contemplated by Article 23, § 161H (e), is to be considered in the sense of a new proceeding, which we believe to be the purest form of a de novo appeal." Id. at 257. The Court determined that "an appeal providing for new evidence on the issues appealed from as well as a consideration of the record before the Board, is what was intended." Id. at 258.
In construing the statute here in question we are obliged by our prior holdings to ascertain and carry out the real legislative intent; to consider the language of the enactment in its natural and ordinary signification; to not insert or omit words to make a statute express an intention not evidenced in its original form; and, if reasonably possible, absent a clear indication to the contrary, to read the statute so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory. See Police Comm'r *42 v. Dowling, 281 Md. 412, 418-20, 379 A.2d 1007 (1977), referring to a number of our prior cases, together with the more recent cases of Department of Public Safety v. Le Van, 288 Md. 533, 544-45, 419 A.2d 1052 (1980); Dorsey v. Beads, 288 Md. 161, 175-76, 416 A.2d 739 (1980); and Messitte v. Colonial Mortgage Serv., 287 Md. 289, 293-94, 411 A.2d 1051 (1980).
In Estate of Soothcage v. King, 227 Md. 142, 146, 176 A.2d 221 (1961), Chief Judge Brune observed for the Court, "The appeal to the Circuit Court under Sec. 25 of Art. 5 of the Code (1957) required a trial de novo. Therefore, neither the testimony before the Orphans' Court nor its findings thereon are now of any controlling effect," a comment equally applicable to this proceeding under the successor to Art. 5, § 25. As we pointed out earlier, the statute here obviously intends a somewhat different procedure for a determination in a circuit court than would be true on an appeal to the Court of Special Appeals. The term "transcript of proceedings" has a historic connotation in the matter of Maryland appeals which does not necessarily include a transcript of testimony. In a proceeding such as this a circuit court or the Superior Court of Baltimore City is not engaged in an appellate review of whether the orphans' court made the proper determination upon the basis of what was before it, but is expected to make its own determination on the evidence brought before it. To require the preparation of a transcript of testimony would be to dictate the performance of a superfluous act. Accordingly, we conclude that Judge Liss was correct when he said for the Court of Special Appeals:
As we conclude the de novo hearing in this case is a new hearing requiring the appellate court to hear the case ab initio, and as we find Section 12-502 does not impose a duty to have the testimony written and filed with the court, we conclude that the trial judge erred in dismissing the appeal in this case. [Id. 45 Md. App. at 503.]
Judgment affirmed; appellants to pay the costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261531/ | 58 Pa. Commonwealth Ct. 494 (1981)
Clarice W. Omelchenko, Petitioner
v.
Housing Authority of the County of Lebanon, Respondent.
Housing Authority of the County of Lebanon, Petitioner
v.
Clarice Omelchenko, Respondent.
Nos. 2091 C.D. 1979 and 2003 C.D. 1979.
Commonwealth Court of Pennsylvania.
Argued December 11, 1980.
April 13, 1981.
Argued December 11, 1980, before Judges MENCER, ROGERS and BLATT, sitting as a panel of three.
*495 Timothy D. Sheffey, Egli, Reilly, Wolfson & Feeman, for Clarice W. Omelchenko.
Jeffrey A. Keiter, Keiter and Farrell, for Housing Authority of the County of Lebanon.
OPINION BY JUDGE ROGERS, April 13, 1981:
These cases are an appeal and a cross appeal from an order of the Civil Service Commission which ordered that Clarice W. Omelchenko be reinstated without back pay to her position with the Housing Authority of the County of Lebanon (Authority). The Authority has appealed that portion of the order requiring reinstatement while Ms. Omelchenko has appealed the Commission's denial of back pay.
Ms. Omelchenko, the Director of Tenant Relations for the Authority, was removed from her position on charges of habitual lateness in the submission of her time sheets and those of other employees of the Housing Authority; failure to submit monthly reports to the Board of Directors on schedule; failure to submit weekly activity reports; and with having lost the confidence of the Housing Authority's constituents, its tenants. After hearing, a majority of the Civil Service Commission (Chairman McCarthy dissented) found as facts that Ms. Omelchenko: "was frequently late with her monthly time sheets", "was late with reports to the Board in January 1978 and September 1978", "failed to turn in CETA time sheets in a timely manner: and although "requested to submit a weekly report of her activities [but] did not submit the weekly report, but kept notes which she could *496 not find time to type". The Commission also found that the "appellant admitted her reports were late" and that the "ill will [of the tenants] was engendered by an account of a meeting which appeared in a newsletter edited by appellant".
Clearly each of the charges and each of the findings of the Commission supporting the charges relates to the merits of Ms. Omelchenko's performance of her duties as Director of Tenant Relations. The charges and the findings therefore demonstrate that the Housing Authority had just cause for removing Ms. Omelchenko, as it alone is empowered to do by Section 807(a) of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.807.
The majority of the Commission, despite its findings just described and despite conceding in its adjudication that "appellant was not without fault" and had demonstrated "laxity", ordered her reinstatement either, as we understand the adjudication, because it thought the Housing Authority was unduly influenced by its tenants' poor opinion of Ms. Omelchenko's performance[1] or because it believed that the *497 Housing Authority took too serious a view of Ms. Omelchenko's derelictions.
The following sentence appears in the Commission majority's opinion: "That is not to say that appellant was faultless or that disciplinary action such as written reprimand or suspension might not have been justified at prior time based on her laxity in processing the reports". It is clear that the Commission has simply substituted itself for the appointing authority, as the disciplinary authority; and by reinstating Ms. Omelchenko without back pay, meted out the suspension it believed the Housing Authority should have imposed. This we believe it was without power to do. We said in Baron v. Civil Service Commission, 8 Pa. Commonwealth Ct. 6, 9, 301 A.2d 427, 429 (1973), "the Commission has no authority to order a suspension in lieu of a dismissal". See also Department of Justice v. Brinser, 26 Pa. Commonwealth Ct. 255, 364 A.2d 511 (1976). If the charges on which a removal is based relate to the merits of the employee's work performance and if the charges are supported by the Commission's own findings, the Commission must uphold the appointing authority's disciplinary action. Only if the charges are not made out, may the Commission modify the appointing authority's action by reinstating the employee with or without back pay.
The Civil Service Commission's duty in this case was to make the record, find the facts and determine as a matter of law whether its findings require the conclusion that the employee was removed for just cause. Having, as it did, made findings that Ms. Omelchenko had done the things charged, the Commission's duty was simply to apply the law, that is, to decide whether the charges and the findings describe matters which are just cause for removal. Since in this case those matters clearly demonstrate *498 poor performance of work, the Commission was required under the law to uphold the appointing authority's decision that removal was the appropriate discipline.
It is unnecessary to discuss the issues raised by Ms. Omelchenko's appeal complaining of the Commission's denial of back pay.
We therefore enter the following order:
ORDER
AND NOW, this 13th day of April, 1981, the order of the Civil Service Commission is reversed and the appeal of Clarice Omelchenko is dismissed.
This decision was reached prior to the expiration of the term of office of Judge WILKINSON.
DISSENTING OPINION BY JUDGE BLATT:
I must respectfully dissent.
It seems to me that the majority's opinion usurps the role of the factfinder in overlooking a critical finding by the Commission that the instances of Ms. Omelchenko's poor performance, as outlined in the opinion, were not the actual reasons for her removal. The Commission found as follows:
Appellant has admitted to laxity in processing time sheets and various reports. However, it is clear that this was not the grounds (sic) for her removal. Appellant's removal, as was testified, was occasioned by some tenants meeting with the Chairman of the Housing Authority. Accusations of using a refrigerator for personal food and use of a community room, and what would appear to be a long-standing feeling that one housing group was favored over another, hardly justify a removal. (Emphasis added.)
*499 The Commission also found that the instances of poor performance delineated by the Authority were compiled only after the Authority made its decision to remove Ms. Omelchenko. The Authority seems to me to have been unconcerned with the other instances of poor performance, such as the late time reports, for these did not adversely reflect upon Ms. Omelchenko's work performance.
I believe that the Commission was correct, therefore, in concluding as a matter of law that these instances did not touch upon her competence or ability and that they could not, as a result, constitute "just cause" for her removal. Corder v. Civil Service Commission, 2 Pa. Commonwealth Ct. 462, 279 A.2d 368 (1971).
NOTES
[1] The Commission found that the "precipitating cause" of Ms. Omelchenko's dismissal was a meeting with the Housing Authority Board of Directors and a delegation of tenants dissatisfied with her work. The expression "precipitating cause" occurs in the testimony of Melvyn Kaplan, Executive Director of the Authority. The majority of the Commission has picked up this phrase and suggests that it demonstrates that other alleged deficiencies in Ms. Omelchenko's performance were mere sham or makeweight. Mr. Kaplan clearly used the phrase in a quite different sense that is, as the triggering event for the dismissal or the straw that broke the camel's back. Any implication that the other reasons for dismissal were a sham or makeweight is without semantic or evidentiary support. Moreover, the Commission offers no reason why the inability of Ms. Omelchenko to get along with the tenants she was hired to serve would not be itself just cause for her dismissal. Cf. Pennsylvania Department of Health v. Howell, 24 Pa. Commonwealth Ct. 42, 354 A.2d 21 (1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261536/ | 178 N.J. Super. 243 (1981)
428 A.2d 930
BERTHA BRINKLEY, INDIVIDUALLY AND AS GUARDIAN AD LITEM OF KAREN ANN RAINEY, AN INFANT, PLAINTIFFS-RESPONDENTS,
v.
ROBERT LAROCHE ET AL., DEFENDANTS, AND ESSEX COUNTY DIVISION OF WELFARE, APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued March 2, 1981.
Decided March 16, 1981.
*244 Before Judges SEIDMAN, ANTELL and LANE.
Nicholas T. Grosch, Assistant County Counsel, argued the cause for appellant (David H. Ben-Asher, Essex County Counsel, attorney; Allen Zaks, Assistant County Counsel, of counsel; Nicholas T. Grosch on the brief).
Edward M. Weisslitz argued the cause for respondents (Schechner & Targan, attorneys; Edward M. Weisslitz on the brief).
The opinion of the court was delivered by SEIDMAN, P.J.A.D.
The question posed in this appeal is the extent to which a county welfare agency may obtain reimbursement under a repayment agreement for aid granted to a dependent child from the proceeds of a tort recovery for personal injuries suffered by the child. A resolution of the question involves the construction of N.J.S.A. 44:10-4, the repayment provision of the act entitled "Assistance for Dependent Children," N.J.S.A. 44:10-1 et seq., as amended by L. 1977, c. 127, § 4.
The infant plaintiff in this case, as a dependent child, had been the recipient of benefits paid to her mother by the Essex County Division of Welfare since 1970. She was injured in an automobile accident in 1976 and a lawsuit to recover damages was instituted on her behalf against the alleged tortfeasors in February 1978. On April 20, 1978 the infant's mother signed an agreement in which she undertook to repay the Division "for that portion of any assistance so granted which may be paid *245 during the period pending my receipt of certain funds which are anticipated" by virtue of the claim for the injuries.
A settlement of the tort claim in the amount of $10,000 was approved by the court on March 5, 1980. Of that sum $7,254.45 was allocated to the infant subject to the joint control of her guardian and the Essex County Surrogate, and the balance to the payment of counsel fees and expenses and physicians' liens.
Prior to the entry of the judgment the Division filed a proof of claim with the court seeking reimbursement from the infant's share in the amount of $2,231.73, representing welfare benefits paid between April 1978 and February 1980. The proof of claim stated further that assistance was continuing at the rate of $134.66 a month. In a letter opinion the trial judge held that under his interpretation of N.J.S.A. 44:10-4 as amended in 1977 the Division was not entitled to reimbursement for any benefits paid prior to the date of the judgment. On the Division's objection to the form of the proposed judgment, the trial judge heard argument on the issue but reiterated the view previously expressed. The Division appealed from the pertinent portion of the judgment that was entered.
Plaintiff and the Division differ on whether the latter is entitled to reimbursement from the settlement for assistance paid from the date of the accident, as the Division argues on appeal, or, as plaintiff contends, only for assistance paid following the date of the judgment. Which position is correct turns on the meaning of N.J.S.A. 44:10-4(a) as amended in 1977. The pre-1977 and the amended version of section follow in pertinent part, with the amended one on the right:
*246
Whenever any parent or relative Whenever any parent or relative
with whom a child is living ... with whom a child is living ...
is receiving assistance for such is receiving assistance for such
child pursuant to this act, and child pursuant to this act, and
it appears that there is pending it appears that there is pending
a payment to the child or to entitlement to a payment to the
either or both his parents of child or to either or both his
funds arising from a claim or parents of funds arising from a
interest legally or equitably claim or interest legally or
owned by such child or by either equitably owned by such child or
or both his parents, the county by either or both his parents,
welfare board may, as a condition the county welfare agency may, as
of eligibility or continuation a condition of eligibility or
of eligibility for such continuation of eligibility for
assistance, require such parent such assistance, require such
or parents to execute a written parent or parents, or relative, to
promise to repay, from the execute a written promise to repay,
funds anticipated, the amount of from the funds anticipated, the
assistance to be granted. amount of assistance to be granted
[Emphasis supplied] from the date of entitlement to
such payment.
[Emphasis supplied]
The solution of the problem depends upon the apparent legislative intent in changing the words "pending a payment," which precede "of funds arising from a claim or interest," to "pending entitlement to a payment [emphasis supplied]," and also, in connection with the written promise to repay, in changing "the amount of assistance to be granted from the date of entitlement to such payment [emphasis supplied]." In either case, of course, the welfare agency is authorized to seek a written promise to repay a grant of assistance out of available funds derived from the child's claim. The problem is to determine the starting point of the benefits to be repaid.
In arguing that it should be reimbursed the amount of assistance paid from the date of the accident which gave rise to the claim, the Division relies on that which it conceives to be the plain meaning of "entitlement," i.e., a right arising from the accrual of the cause of action, the Public Assistance Manual and Falgiatore v. Atlantic City, 175 N.J. Super. 122 (Ch.Div. 1980). To plaintiff, the word "entitlement" relates to an actual fund created by settlement or judgment. Plaintiff claims that In re Jones Guardianship, 170 N.J. Super. 478 (App.Div. 1979), certif. den. 82 N.J. 290 (1980), supports her view.
*247 The case of Francis v. Harris, 100 N.J. Super. 313 (Law Div. 1968), aff'd o.b. 103 N.J. Super. 440 (1968), certif. den. 53 N.J. 227 (1969), sheds light on the issue. An infant was injured in September 1962; his grandmother, who cared for him, signed a repayment agreement two months later, and a grant of assistance began shortly thereafter. An award of damages was made to the infant in 1967, out of which nearly $5,000 remained after payment of expenses. The welfare board gave notice of its claim for benefits paid between the date of the agreement and the judgment. The court held that under N.J.S.A. 44:10-4 the welfare agency could secure repayment of assistance payments made to a dependent child out of a personal injury recovery. It said:
... [I]n the administration of the program [Assistance to Dependent Children] an uncollected tort claim vested in a dependent child is regarded as a potential rather than an actual resource and does not enter into budgeting or affect the amount of assistance to be granted to the child during the time when suit for recovery is pending, but ... is clearly looked upon as a source for repayment of the assistance provided while the claim is pending. After collection, the funds received, to the extent not used from repayment of assistance previously granted, are deemed to be resources to be considered in budgeting the needs of a child for assistance or as a factor which justifies the termination thereof.... [100 N.J. Super. at 319-320.]
Implicit in the foregoing is the recognition of the welfare agency's right to recoup assistance payments made prior to the infant's receipt of the funds. But it is also clear that the agency cannot claim reimbursement in the absence of a written promise to repay obtained from the parent or relative of the dependent child. Essex Cty. Welfare Bd. v. Hellams, 103 N.J. Super. 438 (App.Div. 1968). Whether the agency is entitled to reimbursement where the agreement is executed after the receipt of the funds and the payment of all assistance granted during the pendency of the claim was considered in In re Doughty, 160 N.J. Super. 126 (App.Div. 1978). We held there that the statute makes no provision for repayment from an already realized claim of past received assistance as a condition for continued assistance. However, the Administrative Code was revised thereafter to enable the welfare agency to pursue collection activity where information of the recipient's entitlement to *248 payment has been withheld and, except for such withholding of information, a valid agreement to repay would have existed or assistance would not have been granted. N.J.A.C. 10:81-3.41(e)(1). See Terry v. Harris, 175 N.J. Super. 482, 494 (Law Div. 1980).
Our Supreme Court agreed with the Francis holding in In re Jackson Estate, 79 N.J. 517 (1979). The court observed that while the statutory language did not specifically refer to a child's pending tort claim for personal injuries, "claim or interest" had always been administratively construed to include personal injury claims. Id. at 524. However, the court held that prior to the amendment in 1977 the reimbursement provision of the act was limited to the amount of assistance granted from the date of the agreement to repay. This was so because the statute in effect when the agreement was signed and the order for repayment entered by the trial court in distributing the proceeds of the tort judgment provided only that the written promise to repay be for "the amount of assistance to be granted [emphasis supplied]." But the court was careful to note in this regard that "the 1977 amendment to the Act has made a substantial change in this provision." 79 N.J. at 527, n. 3.
The change referred to was, of course, that the written promise to repay would encompass assistance to be granted from the date of entitlement to payment of "funds arising from a claim or interest" rather than from the date of the agreement to repay. The trial judge here was of the view that until there was an actual fund in existence the infant would not be entitled to the payment of "funds arising from a claim or interest." If his concept is the correct one, then the critical event would be not the accrual of the cause of action but the disposition of it by settlement or judgment. Yet both Francis and Jackson recognize that the fund so created constitutes simply the source of repayment of assistance granted while the claim was pending, although Jackson held that because of the wording of the *249 statute then in existence recovery could be had only for assistance paid after the date of the repayment agreement.
We do not discern in the 1977 amendment a legislative design further to restrict the ability of a welfare agency to obtain reimbursement for benefits paid. Rather, it is evident to us that the choice of the words "entitlement to a payment" and "entitlement to such payment" was intended to have the opposite effect. To limit reimbursement to benefits paid after the creation of the fund would negate the concept expressed in Francis and Jackson that the fund should be used to repay assistance granted while the claim was pending. Moreover, according to Francis, the funds received, to the extent not used for repayment of assistance previously granted, are resources to be considered in determining whether or to what extent assistance is to be continued. 100 N.J. Super. at 319-320. We agree with the construction given to the 1977 amendment by Judge Haines in Falgiatore v. Atlantic City, supra:
... The 1977 amendment to the statute added the references to "entitlement." Under plaintiff's theory this word and the new clause, "from the date of entitlement to such payment," would be entirely superfluous; the result to be obtained under the new legislation would be exactly the same as that obtained under the old. The Legislature cannot have intended to adopt an amendment which amounts to a useless gesture. Handleman v. Marwen Stores Corp., 53 N.J. 404, 413 (1969). Welfare instructions adopted to implement the statute call for the repayment of welfare monies from the date of the accident, not from the date of the agreement. Public Assistance Manual, "Resources & Repayments," N.J. Dep't of Human Services, Div. of Public Welfare, Transmittal Letter 7B17, § 395(a) (May 1979). This practical interpretation of the statute by the agency which must enforce its provisions is a legitimate source of legislative intent. State v. Resorts International Hotel, 173 N.J. Super. 290 (App.Div. 1980). The purpose of the statute also seems clear: to require a person, supported by welfare monies during a time of anticipated but unrealized income, to treat the assistance moneys as a loan which must be repaid when the income is realized. This arrangement satisfies the needs of the welfare recipient while protecting the public treasury. [175 N.J. Super. at 126.]
Plaintiff construes In re Jones Guardianship, supra, as suggesting that a welfare agency under the 1977 amendment is entitled to reimbursement only as of the date of the entry of a *250 friendly judgment. We cannot agree. In that case, the injury to the dependent child occurred in 1972. The repayment agreement was signed in 1974 and the claim was settled in 1976. The trial judge, on the welfare agency's petition for reimbursement out of the moneys in the hands of the surrogate, ordered reimbursement for assistance paid from the date of the friendly judgment. On appeal, another part of this court held that since Jackson applied to repayment agreements executed prior to the 1977 amendment, the reimbursement right of the welfare agency extended only to payments made after the date of the agreement. 170 N.J. Super. at 482. The court added, "Thus, the trial judge erred in prospectively applying the contrary provision of the 1977 amendment and ordering reimbursement from and after the date of the friendly judgment." Ibid. We do not infer from this statement that if the 1977 amendment applied, the court would have affirmed the order of the trial judge, although we detect an element of ambiguity in what the court said. Furthermore, to the extent the statement might imply an interpretation of the amendment contrary to ours it is dictum with which we would not agree.
We conclude that the trial judge erred in holding that the welfare agency's right to reimbursement attaches only from and after the entry of the friendly judgment.
Accordingly, so much of the judgment of May 2, 1980, as so limits the extent of reimbursement is reversed and the matter is remanded to the trial court for a determination, consistent with the foregoing, of the amount of reimbursement to which the Essex County Division of Welfare is entitled from the fund in the joint control of the child's guardian and the Essex County Surrogate (not including the amount of $2,100 reserved for future medical expenses). Jurisdiction is not retained. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261537/ | 861 F.Supp. 28 (1994)
JOHNSON BROS. CORPORATION d/b/a Johnson Bros. Corporation of Louisiana,
v.
INTERNATIONAL BROTHERHOOD OF PAINTERS and Allied Trades Union and Industry Pension Fund.
Civ. A. No. 94-178-A.
United States District Court, M.D. Louisiana.
July 27, 1994.
*29 Bernard Marcus, Ellis B. Murov, Deutsch, Kerrigan & Stiles, New Orleans, LA, for plaintiffs.
Nancy Picard, Robein, Urann & Lurye, Metairie, LA, Barbara L. Camens, Barr, Peer & Camens, Washington, DC, for defendants.
RULING ON MOTION TO DISMISS, TRANSFER OR STAY
JOHN V. PARKER, Chief Judge.
This matter is before the court on a motion by defendant, International Brotherhood of Painters and Allied Trades Union and Industry Pension Fund, to dismiss, stay or transfer. The motion is opposed. There is no need for oral argument. Jurisdiction is allegedly based upon 28 U.S.C. §§ 1331, 1332 and 29 U.S.C. §§ 185, 1132(e).
On March 1, 1994, Johnson Bros. filed this declaratory judgment action seeking a determination of its obligation to make contributions to defendant, Pension Fund, in connection with a painting job performed in Baton Rouge, Louisiana. Service was not made on the Pension Fund until April 4, 1994. On April 12, 1994, the Pension Fund filed a delinquency action against Johnson Bros. in the United States District Court for the District of Columbia involving the same issues.
The Pension Fund now moves to dismiss, stay or transfer based upon the proceedings pending in the District of Columbia. Defendant essentially argues that this declaratory action was filed in anticipation of its delinquency proceedings and that the Fund should be allowed to proceed in the forum where the plan is administered pursuant to the special venue provisions in the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(e)(2).
In opposition, plaintiff basically denies that this is an anticipatory suit. Plaintiff claims that defendant first indicated it might file a delinquency action by a letter dated March 2, 1994, the day after this suit was instituted. Affidavit of Keith Kramer. Plaintiff additionally argues that the "first-filed" rule should control, particularly in view of the interests of justice and the convenience of the parties and witnesses.
While the Fifth Circuit generally follows the "first-filed" rule in avoiding duplicative lawsuits filed in federal district courts, that rule is not adhered to where compelling circumstances dictate that the first action be dismissed rather than the second one. Stack v. Whitney Nat. Bank, 789 F.Supp. 753 (S.D.Miss.1991), affirmed, 958 F.2d 1078 (5th Cir.1992) (Table); 909 Corp. v. Village of Bolingbrook Police Pension Fund, 741 F.Supp. 1290 (S.D.Tex.1990). "Compelling circumstances" exist when a declaratory action is filed in anticipation of another lawsuit in order to secure a more favorable forum. Id.
Despite plaintiff's claim to the contrary, it is clear that this action was filed in anticipation of a lawsuit by the Fund. By letter dated February 10, 1994, the Fund notified plaintiff it was seeking payment of an $110,000 audit deficiency. Affidavit of Vicki McGlone. While settlement negotiations were ongoing, plaintiff filed its declaratory judgment action, withholding service on defendant.
Under the circumstances, the court has little difficulty in concluding that this action is a preemptive strike. Application of the *30 "first-filed" rule would penalize the Fund for its efforts to settle this matter out of court. 909 Corp., supra. This would be particularly inequitable considering that defendant is a pension fund with a fiduciary duty to minimize its expenses and to collect delinquencies in as effective a manner as possible. Defendant persuasively argues that it is entitled to proceed under the special venue provisions of ERISA.
Additionally, the court observes that the convenience of the parties and witnesses is a relevant factor in determining whether a declaratory action should go forward. Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599 (5th Cir.1983). In this regard, plaintiff argues that defendant has failed to present "facts" to show that the District of Columbia is the more convenient forum. Plaintiff then submits the affidavit of A.A. Sehlin, "Senior Vice President" for Johnson Bros., to purportedly show that some of its records are kept in Kenner, Louisiana, and that its witnesses will "largely be drawn" from employees who worked on the Baton Rouge painting job and who "virtually all" reside "in Baton Rouge or its environs." The facts about which these employees will testify are conspicuous by their absence. Neither their names nor the nature of their purported testimony is suggested by plaintiff.
The court finds that plaintiff's attempt at establishing the "facts" is just as inadequate as defendant's, if not more so. Plaintiff has failed to show that the convenience of the parties and witnesses outweighs the forum shopping and other equitable factors involved here. Moreover, as it is undisputed that this controversy may be fully resolved in the District of Columbia, the court concludes that this declaratory judgment action should be dismissed rather than stayed or transferred.
Accordingly, the motion by defendant to dismiss is hereby GRANTED and this action shall be dismissed without prejudice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261542/ | 861 F.Supp. 705 (1994)
BERCO INVESTMENTS, INC., et al., Plaintiffs,
v.
EARLE M. JORGENSEN CO., et al., Defendants.
No. 94 C 3961.
United States District Court, N.D. Illinois, Eastern Division.
August 23, 1994.
*706 Douglas P. Roller, Roller & Assoc., Naperville, IL, for plaintiffs.
Thomas Knepper, Neal, Gerber & Eisenberg, Chicago, IL, for defendants.
MEMORANDUM OPINION AND ORDER
SHADUR, Senior District Judge.
Berco Investments, Inc. ("Berco") and its President and Chief Executive Officer Morando Berrettini ("Berrettini") have filed a seven-count Complaint against Earle M. Jorgensen Co. ("Jorgensen") and real estate broker John Earnhart, invoking federal jurisdiction on diversity-of-citizenship grounds. At the initial status hearing on August 10, 1994 this Court requested counsel for the litigants to submit letters identifying the authorities on which they respectively relied as to the viability or nonviability of Complaint Count I (asserting a breach of contract) and Count II (asserting a breach of an express covenant of good faith). Both letters have been submitted, with each of them containing a thoughtful exposition of the clients' legal position. Accordingly the issues are ripe for decision.
Count I
Complaint Ex. A is a detailed (12-plus single-spaced pages) December 10, 1992 letter of intent (the "Letter") under which the parties negotiated for the possible purchase by Berco and sale by Jorgensen of real estate owned by the latter in Schaumburg, Illinois. This opinion's reference to a "letter of intent" immediately raises a red flag, for the Illinois cases[1] have given very mixed signals as to the enforceability of such preformal-contract documents.
To sustain its Count I breach of contract claim, Berco[2] seeks to rely on such cases *707 among that group as Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp., 218 Ill. App.3d 383, 392, 160 Ill.Dec. 773, 780, 577 N.E.2d 1344, 1351 (1st Dist.1991) ("Letters embodying preliminary negotiations are enforceable in contract if it is clear that the ultimate contract will be substantially based on the terms of the letters and the parties intended to be bound") and Empro Mfg. Co. v. Ball-Co Mfg., Inc., 870 F.2d 423, 425 (7th Cir.1989) ("if the full agreement showed that the formal contract was to be nothing but a memorial of an agreement already reached, the letter of intent would be enforceable").[3] To much the same effect as Weil but perhaps a bit less demanding, Chapman v. Brokaw, 225 Ill.App.3d 662, 665, 167 Ill.Dec. 821, 824, 588 N.E.2d 462, 465 (3d Dist.1992) has put the matter in these terms:
The fact that the parties may contemplate a more formal agreement will be executed in the future does not necessarily render prior agreements mere negotiations where it is clear that the ultimate contract will be based on terms substantially similar to those in the previous agreement.
It is really unnecessary to cite or quote from the cases on which Jorgensen relies (among them, other portions of the Empro opinion and cases cited there), because even under the cases on which Berco relies its argument is torpedoed by a whole series of terms in the Letter itself terms that collectively negate the status of the Letter as a legally enforceable agreement. Instead of attempting to list those provisions in any descending order of significance, this opinion will refer to them sequentially as they occur in the document:
1. Quite apart from any possible inference from the Letter's opening clause in which Jorgensen says that it "summarize[s] the basic business terms upon which [Jorgensen] proposes to sell to [Berco]" (rather than "agrees to sell"[4]), the description of the property poses possible problems: It refers to "an approximately 25 acre parcel (the `Improved Property') and an approximately 27 acre parcel of unimproved land (the `Unimproved Property')." That, however, might be a surmountable hurdle. Unlike cases relied on by Jorgensen in that respect (Alguire v. Walker, 154 Ill.App.3d 438, 107 Ill.Dec. 279, 506 N.E.2d 1334 (1st Dist.1987) and Calvary Temple Assembly of God v. Lossman, 200 Ill. App.3d 102, 146 Ill.Dec. 122, 557 N.E.2d 1309 (2d Dist.1990)), if the approximately 52 acres represented Jorgensen's total acreage at the Schaumburg location and if the improved and unimproved parcels were readily identifiable from their appearance, the claimed uncertainty as to what real estate is the subject matter of the Letter would vanish.
2. That possible elimination of an element of uncertainty as to the parties' obligations under the Letter does not apply to Letter ¶ 1(a), which specifically provides for Berco's deposit of the earnest money on the Improved Property only "upon the execution of a definitive Purchase and Sale Agreement (the `Improved Agreement')," and to the identical provision of Letter ¶ 2(a), which similarly requires the execution of a definitive "Unimproved Agreement" as a precondition to the deposit of earnest money. Both of those provisions literally tie Berco's contractual obligation to the execution of the formal contracts, with no such obligation existing before that event occurs.
3. In the same way, Letter ¶ 3 expressly conditions Berco's purchase obligations on a number of specified matters. Although each of them might perhaps be viewed as inconsistent with the notion of a currently binding contract, the most significant of those matters are (a) the provision that conditions Berco's obligation to close on its ability to obtain financing (Letter ¶ 3(c)) and (b) this provision of Letter ¶ 3(d):
Buyer and Seller agreeing on the configuration of the 12 acre parcel (described in Section 5(a)(ii) below) and the Option Tract (described in Section 5(c) below) *708 during the Contingency Period.[5] Buyer and Seller shall work diligently during the Contingency Period to determine a mutually acceptable configuration of the 12 acre parcel and the Option Tract.
In light of that provision, the notion that the parties were contractually bound not only before signing the Agreements but also before resolving that condition is even harder to justify.
4. To the same effect, Letter ¶ 4 expressly conditions Jorgensen's obligation to close the sale on a number of matters as well. Among others, those conditions include a provision (Letter ¶ 4(e)) that is identical to the above-quoted Letter ¶ 3(d).
5. Finally, it is difficult to imagine a more unequivocal and less ambiguous provision than this final paragraph of the Letter:
This letter is not a binding agreement, but a summary of the basic business terms upon which Seller proposes to sell the Property; provided, however, that the confidentiality provision in the foregoing paragraph is a binding and enforceable obligation of the Seller upon its execution of this letter. Neither Buyer nor Seller shall have any obligations with respect to the Property unless and until the Agreements are executed and delivered by Buyer and Seller. Nonetheless, Buyer and Seller agree to negotiate the Agreements in good faith and to use their best efforts to execute and deliver the Agreements by December 31, 1992. If for any reason the parties have not fully executed such Agreements by December 31, 1992, their obligations to negotiate shall terminate.
Although this Court has said that it would not seek to rank the significance of the Letter's provisions, it seems entirely fitting to conclude with the just-mentioned clincher. In light of all of the cited provisions, it must be concluded that this case fits well within the doctrine exemplified by such federal cases applying Illinois law as Empro and Feldman v. Allegheny Int'l, Inc., 850 F.2d 1217 (7th Cir.1988). In short, the Letter simply did not give rise to an enforceable contract between the parties.
If there were any room for doubt on that score (and this Court finds none), it would be dispelled by the parties' own post-Letter course of conduct that is set out at some length in the Complaint. In point of fact the parties continued to negotiate for nearly a full year past the December 31, 1992 deadline that had been specified in the Letter, and the proposed contract changed its shape markedly in a number of respects during that period of further negotiation (Complaint ¶¶ 34-49). Finally, according to Complaint ¶ 49:
49. On December 3, 1993, attorneys for Berco received correspondence dated December 2, 1993, from Bradley R. Beckstrom, attorney for defendant Jorgensen, enclosing the final version of the stock purchase agreement and lease.[6] The December 2, 1993 correspondence indicated that upon acceptance by Berco, the agreement would be submitted to the Jorgensen Board of Directors for execution. Berrettini immediately executed the documents enclosed in the December 2, 1993 correspondence and returned the executed documents to defendant Jorgensen.
Thus the conduct of the parties themselves negates any notion that they viewed the terms of their deal as having been fixed by the Letter, with the execution of ultimate papers being a mere formality. Instead the dealings between the parties ended in Berco's defeated expectations when Jorgensen's Board of Directors rejected the transaction *709 (Complaint ¶ 50), just as it had reserved the right to do (Complaint ¶ 49). Those defeated expectations are not actionable in contract terms, and Count I must be and is dismissed.
Count II
Count II asserts Jorgensen's breach of an "express covenant of good faith" (Complaint ¶ 60). For that purpose, it must by definition point to the good-faith-negotiation undertaking that was set out in the already-quoted final paragraph of the Letter. It is of course true that an obligation to negotiate in good faith may be imposed even if a letter of intent is insufficient to create a fully binding contract (A/S Apothekernes Laboratorium v. I.M.C. Chem. Group, Inc., 873 F.2d 155, 158-59 (7th Cir.1989)). Milex Prod., Inc. v. Alra Lab., Inc., 237 Ill.App.3d 177, 189, 177 Ill. Dec. 852, 860, 603 N.E.2d 1226, 1234 (1st Dist.1992) has more recently adopted the A/S Apothekernes statement of that obligation as a matter of Illinois law.
But the picture that is painted by Berco's own pleading demonstrates why Berco cannot invoke that doctrine, as exemplified by our Court of Appeals' treatment of the good-faith-negotiation obligation explained in Feldman, 850 F.2d at 1223 and reconfirmed in A/S Apothekernes, 873 F.2d at 158-59. As the latter case put it (id. at 158):
The full extent of a party's duty to negotiate in good faith can only be determined, however, from the terms of the letter of intent itself. For example, our recent decision in Feldman v. Allegheny International, Inc., 850 F.2d 1217 (7th Cir.1988), demonstrates how the terms of the letter of intent control the scope of the obligation to bargain in good faith.
Here the parties' obligation, as expressly defined in the Letter, was to negotiate in good faith during the brief period that remained in December 1992. They not only did that, but they also continued in their efforts to shape and reshape the proposed transaction for nearly a year thereafter. Thus the Complaint itself scotches Berco's effort to claim a breach of the express undertaking in the Letter. Count II is also dismissed.
Conclusion
Complaint Counts I and II are dismissed for failure to state a cause of action. At the next status hearing (previously set for 8:45 a.m. August 31, 1994) the parties should come prepared to discuss the further proceedings in this action.
NOTES
[1] Both sides agree that Illinois law provides the rules of decision in this diversity action.
[2] Although Counts I and II (like the other five counts) ask for relief in favor of "Plaintiffs," nothing said in either of the two counts now at issue supports any theory of recovery in favor of Berrettini individually. This opinion will therefore refer only to Berco throughout.
[3] Empro affirmed this Court's dismissal of a complaint based on a letter of intent.
[4] Any such argument should carry no weight. Under conventional offer-and-acceptance notions, a "proposal" that is accepted unconditionally becomes a contract.
[5] [Footnote by this Court] That term is defined as the 60-day period following execution of the formal Agreements. Again it is difficult to reconcile that contingency with the notion that the parties were bound when they signed the Letter at a time before the formal Agreements were negotiated and signed.
[6] [Footnote by this Court] One of the significant changes from the December 1992 Letter had been the shift from a real estate transaction to one for stock in a corporation. What appears to be even more critical is that the proposed Stock Purchase Agreement (Complaint Ex. B) relates to the shares of a corporation owning only the 25-acre Improved Property. Berco is entirely silent as to just when and how the Unimproved Property apparently fell by the wayside in the post-Letter negotiations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261616/ | 861 F.Supp. 404 (1993)
Desmond RICKETTS, Plaintiff,
v.
Hugh VANN, Billy Vann, Hugh Vann & Son, Inc., Murfreesboro Farms, Inc., Percy Bunch, Francis M. Bunch, James T. Flakes, Jr., and Jeannette Flakes, Defendants.
No. 91-61-CIV-2-D.
United States District Court, E.D. North Carolina, Elizabeth City Division.
October 15, 1993.
*405 Robert J. Willis, Raleigh, NC, for plaintiff.
J. Nicholas Ellis, Poyner & Spruill, Rocky Mount, NC, L. Frank Burleson, Jr., Revelle, Burleson, Lee & Revelle, Murfreesboro, NC, Donald C. Prentiss, Hornthal, Riley, Ellis, & Maland, John David Leidy, Elizabeth City, NC, Ronald G. Baker, Baker, Jenkins, Jones & Daly, Ahoskie, NC, for defendants.
James T. Flakes, pro se.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
(Plaintiff and Flakes Defendants)
DUPREE, District Judge.
Following oral argument on their motions for summary judgment heard on October 13, 1993 judgment was entered sustaining the motions of all defendants with the exception of James T. Flakes, Jr. and Jeannette Flakes. The motions for summary judgment of the Flakes defendants and a motion for partial summary judgment by the plaintiff were heard by the court on October 14, 1993, and the court now records its rulings on these summary judgment motions as follows:
1. The motion of plaintiff for partial summary judgment as to the defense of contributory negligence interposed by the Flakes defendants to plaintiff's claims under the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) is allowed. The parties agreed that they had not been able to find in the legislative history of this statute or the reported decisions any authority on the question of the availability of the defense of contributory negligence to actions brought under the statute, but in view of the broad social purposes sought to be served by this legislation it was the court's feeling that to allow the defense of contributory negligence would probably run contrary to congressional intent and that a liberal construction of this social legislation which makes no provision for a defense of contributory negligence should result in disallowing it.
2. The motion of the Flakes defendants for summary judgment as to plaintiff's cause of action based on common law negligence on the grounds that the plaintiff was contributorily negligent as a matter of law is denied. While it is true that under North Carolina law which governs here there are cases in which motions for summary judgment based on a showing of contributory negligence on the part of the plaintiff as a matter of law in occupying an unsafe position *406 in a moving vehicle have been sustained, such cases have involved situations in which the plaintiff assumed a far more hazardous position in a vehicle than was the plaintiff here who was simply seated on some tires in the back of a pickup truck, a position in which countless workers are seen daily riding in these vehicles without incident.
3. Counsel for plaintiff indicated at the time of oral argument that the plaintiff would not undertake to prove his common law negligence action by a showing of negligence on the part of the driver of the pickup truck in his operation of the vehicle but would confine his proof to a showing that at the time of the accident the plaintiff was being transported in an unsafe vehicle. The motion of the Flakes defendants for summary judgment based on the fellow servant rule is therefore denied subject to the right of defendants to reactivate this defense in the event the plaintiff undertakes to prove at trial a cause of action based on the negligence of anyone who was plaintiff's fellow servant.
4. The motion for summary judgment of the Flakes defendants on plaintiff's claim for actual damages under AWPA is denied. The parties are agreed that under AWPA in order for a plaintiff to recover actual damages he will be required to show that such damages were proximately caused by the violation of that provision of AWPA on which plaintiff's claim is based. Obviously the plaintiff will not be allowed to recover his actual damages twice, and if he has been awarded actual damages following the trial of his common law negligence claim, he will not be permitted to recover actual damages upon the trial of his AWPA claims.
5. The motion of the Flakes defendants for summary judgment as to the issue of punitive damages under plaintiff's claims based on AWPA is allowed for two reasons: first, the statute makes no provision for any such damages and second, there is no evidence in the record of willful, wanton or reckless conduct on the part of the Flakes defendants proximately causing or contributing to any injury sustained by the plaintiff. In order to obtain the submission of a punitive damages issue to the jury under North Carolina law it is necessary that a plaintiff seeking punitive damages produce such evidence.
6. The motion of the Flakes defendants for summary judgment as to the issue of punitive damages with respect to plaintiff's common law negligence claim is granted for the same reasons as set forth in the preceding paragraph. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322478/ | 382 S.C. 189 (2009)
676 S.E.2d 671
Scott ELLISON, Petitioner,
v.
STATE of South Carolina, Respondent.
Supreme Court of South Carolina.
April 10, 2009.
*190 ORDER
Counsel for petitioner filed a petition for a writ of certiorari from an order denying and dismissing his application for post-conviction relief (PCR). By order dated November 6, 2008, the Court of Appeals denied the petition.[1] Petitioner's petition for rehearing was denied on December 18, 2008.
Thereafter, petitioner's counsel sought and received a thirty day extension of time to serve and file a petition for a writ of certiorari in this Court pursuant to Rule 226, SCACR. The State asserts the petition for a writ of certiorari should be denied based on this Court's decisions in Haggins v. State, 377 S.C. 135, 659 S.E.2d 170 (2008)(stating Court will not entertain petitions for a writ of certiorari pursuant to Rule 226 where Court of Appeals issues "letter denial"), Missouri v. State, 378 S.C. 594, 663 S.E.2d 480 (2008)(extending Haggins to petitions for a writ of certiorari filed in this Court pursuant to Rule 226 following Court of Appeals' issuance of order denying petition for writ of certiorari pursuant to Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988)), and In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 321 S.C. 563, 471 S.E.2d 454 (1990)(stating this Court reviews decisions of Court of Appeals by way of writ of certiorari only where special reasons justify exercise of that power).
Counsel for petitioner maintains petitioner's case is distinguishable because the Court of Appeals did not issue a letter denial or an order denying the petition pursuant to Johnson. Counsel further notes the Court of Appeals is well aware of *191 this Court's ruling in Haggins, but chose not to issue a letter denial in petitioner's case, indicating the Court of Appeals' desire to ensure its ruling is subject to review by this Court. Citing O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), counsel also contends petitioner fears being procedurally barred from review of his federal constitutional claims in a subsequent petition for a writ of habeas corpus if he does not seek review by this Court. Finally, counsel argues the policy established in Haggins and Missouri violates petitioner's rights under the Equal Protection Clause because it denies an arbitrarily constituted group of PCR applicants access to this Court.
In Haggins, we noted a decision by the Court of Appeals to grant or deny a writ of certiorari in a PCR case is a matter committed to that court's discretion, and a decision to deny certiorari in such a case can never be deemed "a special reason" justifying the exercise of our discretion under Rule 226. We noted further that an informal letter denial cannot meet any of the five criteria we consider when determining whether to grant certiorari to review a decision of the Court of Appeals pursuant to Rule 226. While the language in our opinion in Haggins could be construed to preclude review of the Court of Appeals' order in the case at hand, we realize that the specific holding in Haggins applies only to letter denials. Accordingly, we take this opportunity to extend our decisions in Haggins and Missouri to cases in which the Court of Appeals has issued an order denying a writ of certiorari in a PCR matter and in cases in which the Court of Appeals initially issues an order granting a writ of certiorari in such matters but later issues an opinion dismissing the writ as improvidently granted without further discussion of the case. Our decision is based on the same reasoning set forth in Haggins. We also find petitioner's equal protection argument unavailing for the reasons set forth in Missouri.
Finally, our decision does not preclude federal habeas corpus review under Boerckel. The United States Supreme Court specifically stated in Boerckel that nothing in its decision requires exhaustion of any state remedy when a state has provided that remedy is not available. We have, by our decisions in Haggins, Missouri, and the case at hand, provided that discretionary review by this Court is not available *192 following the issuance of the types of decisions addressed therein. Accordingly, petitioner's failure to obtain discretionary review by the Court in this case should not preclude federal habeas corpus review.
Because we hereby hold we will not entertain petitions for a writ of certiorari under Rule 226 from orders such as the one issued by the Court of Appeals in this case, we deny counsel's request for an extension of time to serve and file a petition for a writ of certiorari and her motion for leave to submit a petition for a writ of certiorari.
IT IS SO ORDERED.
JEAN H. TOAL, C.J., JOHN H. WALLER, JR., COSTA M. PLEICONES, DONALD W. BEATTY, and JOHN W. KITTREDGE, JJ.
NOTES
[1] The order states, "This matter is before the Court on a petition for a writ of certiorari following the denial of Petitioner's application for post-conviction relief. The petition for a writ of certiorari is denied." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322661/ | 676 S.E.2d 843 (2009)
CRAWFORD
v.
The STATE.
No. A09A0094.
Court of Appeals of Georgia.
March 30, 2009.
*844 Barbara N. Lanier, for appellant.
Spencer Lawton Jr., Dist. Atty., Isabel M. Pauley, Asst. Dist. Atty., for appellee.
JOHNSON, Presiding Judge.
A jury found Thomas Crawford guilty of kidnapping and two counts of armed robbery. Crawford appeals, challenging the sufficiency of the evidence. He also argues that the trial court erred in admitting identification testimony and that he received ineffective assistance of counsel at trial. For reasons that follow, we affirm Crawford's convictions for armed robbery, but reverse his kidnapping conviction.
1. In reviewing Crawford's sufficiency challenge, we construe the evidence favorably to support the jury's verdict, and Crawford no longer enjoys a presumption of innocence.[1] We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the jury was authorized to find Crawford guilty of the crimes charged beyond a reasonable doubt.[2]
So viewed, the evidence shows that the victim was employed as a cook at a restaurant, and she typically worked alone in the restaurant in the morning, preparing for the day. At approximately 9:00 a.m. on January *845 7, 2005, the victim walked into the restaurant's oven room and was grabbed from behind by a man who demanded money. The man threatened her with a knife and patted the side of his pants, stating that he also had a gun.
The man released his grip on her, and she turned toward him, looking directly at his face for one to two minutes. He directed her to the restaurant's cash register in another room, and she gave him approximately $40 from the till, including numerous $1 bills. The victim also handed over $4 of her own money. At the victim's request, the assailant took her back to the kitchen area so that she could turn off the stove in the kitchen. He then threatened her again, stating that he would have to hurt her because she did not give him enough money.
At that point, the victim ran from the robber and out of the restaurant. Once on the street, she was able to report the incident to police, describing the robber's height, race, and skin tone. She also described his clothing, noting that he was wearing dark sweat pants, a white t-shirt, and a blue skull cap.
The police responded quickly and found a knife at the scene. In a parking lot near the restaurant, officers also recovered a pair of latex gloves similar to those used in the restaurant. Based on the conduct of a police dog, officers believed that the robber had left through the restaurant's back door, in the direction of the parking lot where the gloves were found. A witness along that escape route reported seeing someone wearing green running from the restaurant's general location.
A short time later, an officer spotted Crawford behind a wrought-iron fence at a nearby church. Suspicious, the officer approached and asked what he was doing. Crawford stated that he was waiting for the bus, but the bus stop was on the other side of the fence. Questioned further, he asserted that he was urinating behind the fence. The officer noticed that his shoes were untied, his blue trousers were unzipped, and his belt was unbuckled. She then realized that he was wearing green sweat pants underneath the blue trousers.
Believing that Crawford might be the robber, the officer called for backup, and the victim was brought to the church for a one-on-one showup. Although she noticed that Crawford had changed clothing, the victim looked closely at his face and identified him as the robber. She also identified Crawford at two pretrial hearings and at trial.
At the time of Crawford's arrest, police seized a large sum of cash including 23 $1 bills from him. He also had a nylon stocking cap in his pocket.
(a) Armed Robbery. The jury found Crawford guilty of two counts of armed robbery, concluding that he robbed the victim (1) using a knife and (2) using a gun.[3] The evidence supports these findings. The victim unequivocally identified Crawford as the robber. She testified that he used a knife during the robbery, and officers found a knife at the scene. Gesturing to his pants, Crawford also told the victim that he had a gun.
"A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon."[4] Even if the victim does not see the weapon or article, an armed robbery conviction may be sustained if "the defendant's acts created a reasonable apprehension on the part of the victim that an offensive weapon was being used."[5]
Crawford took money from the victim after threatening her with a knife. And his statement that he had a gun was direct evidence that he also possessed a firearm.[6] Given this statement, as well as Crawford's conduct in gesturing to his pants, the jury was authorized *846 to find a reasonable apprehension on the part of the victim that, in addition to the knife, Crawford was using a gun to rob her. The evidence, therefore, supports the armed robbery convictions.[7]
(b) Kidnapping. We are compelled, however, to reverse his kidnapping conviction. Kidnapping results when a person "abducts or steals away any person without lawful authority or warrant and holds such person against his will."[8] Traditionally, the element of abducting or stealing away the victim, also known as "asportation," has been established by proof of "movement of the victim, however slight."[9] Citing evidence that Crawford forced the victim to move around the restaurant, the state argued below that the evidence established kidnapping.
Recently, however, our Supreme Court altered the traditional interpretation of asportation. In Garza v. State, the Court rejected the "slight movement" standard and adopted a new test for determining whether movement constitutes asportation.[10] Under this test, four factors must be considered: (1) the movement's duration; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was inherently part of the separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.[11] As described by Garza,
[a]ssessment of these factors will assist Georgia prosecutors and courts alike in determining whether the movement in question is in the nature of the evil the kidnapping statute was originally intended to address i.e., movement serving to substantially isolate the victim from protection or rescue or merely a criminologically insignificant circumstance attendant to some other crime.[12]
In this case, the victim's movement was brief, occurred during and incidental to the armed robbery, and did not enhance the risk she already faced during the robbery. Under Garza, therefore, the movement did not meet the asportation requirement, and Crawford's kidnapping conviction must be reversed for insufficient evidence.[13]
2. Crawford argues that the trial court erred in refusing to suppress the identification testimony stemming from his one-on-one showup with the victim. According to Crawford, the showup was inherently suggestive, unreliable, and should have been excluded. We disagree.
Although conventional lineups are generally preferred, "prompt, on-the-scene confrontations and identifications, though inherently suggestive because of the presentation of a single suspect, are permissible in aiding a speedy police investigation."[14] Unless a substantial likelihood of misidentification exists, evidence of a one-on-one showup is admissible.[15]
In considering the likelihood of misidentification, a court must consider four factors: (1) the witness' opportunity to view the criminal during the crime; (2) the witness' degree of attention; (3) the accuracy of any prior description given by the witness; and (4) the length of time between the crime and the showup confrontation.[16] The trial court acts as the factfinder in resolving the reliability issue, and we will uphold the court's ruling if any evidence supports it.[17]
*847 We find no error here. During the robbery, the victim stood "face-to-face" with and eight to ten inches from the robber. She looked directly at his face, which was not covered, and also noted his clothing. According to the victim, she focused on the robber throughout the incident, testifying at trial: "I tried to look at his face and what he had on the whole time where I could identify him if I got away from him." The restaurant lights were on at the time, and natural light from the outside also illuminated the area. The victim expressed certainty about her identification during the showup, which took place approximately 30 minutes after the robbery. And although not perfect, her description of the robber was accurate in several respects.
Given the totality of these circumstances, the trial court did not err in concluding that the situation presented no substantial likelihood of misidentification.[18] Accordingly, it properly denied Crawford's motion to suppress.
3. Finally, Crawford contends that he received ineffective assistance of counsel because counsel failed to call his girlfriend as a witness at trial. To succeed in this claim, he must show that counsel's performance was deficient and that the deficiency prejudiced his defense.[19] Crawford, however, did not present this witness' testimony at the hearing on his motion for new trial. We thus do not know what she might have said in his defense, and he cannot demonstrate that any prejudice resulted from her absence at the trial.[20] Crawford's ineffective assistance claim, therefore, lacks merit.
Judgment affirmed in part and reversed in part.
ELLINGTON and MIKELL, JJ., concur.
NOTES
[1] Rayshad v. State, 295 Ga.App. 29, 32(1), 670 S.E.2d 849 (2008).
[2] Id.
[3] The trial court merged these two counts for sentencing purposes.
[4] OCGA § 16-8-41(a).
[5] (Citation and punctuation omitted.) Fluellen v. State, 284 Ga.App. 584, 585-586, 644 S.E.2d 486 (2007).
[6] Id. at 586, 644 S.E.2d 486.
[7] See OCGA § 16-8-41(a); Fluellen, supra at 586-588, 644 S.E.2d 486.
[8] OCGA § 16-5-40(a).
[9] (Citation and punctuation omitted.) Garza v. State, 284 Ga. 696, 697(1), 670 S.E.2d 73 (2008).
[10] Id. at 701-702, 670 S.E.2d 73.
[11] Id. at 702, 670 S.E.2d 73.
[12] (Citation and punctuation omitted.) Id.
[13] See id. at 704(3), 670 S.E.2d 73; Rayshad, supra at 33-34(1)(b), 670 S.E.2d 849.
[14] (Punctuation omitted.) Cray v. State, 291 Ga. App. 609, 612(2), 662 S.E.2d 365 (2008).
[15] Fitzgerald v. State, 279 Ga.App. 67, 68(1), 630 S.E.2d 598 (2006).
[16] Id.
[17] Id.
[18] Cray, supra at 612-613(2), 662 S.E.2d 365; Fitzgerald, supra at 69(1), 630 S.E.2d 598.
[19] Jividen v. State, 256 Ga.App. 642, 643(1), 569 S.E.2d 589 (2002).
[20] See Boatwright v. State, 281 Ga.App. 560, 561(2), 636 S.E.2d 719 (2006); Jividen, supra at 646-647(1)(d), 569 S.E.2d 589. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2103308/ | 422 N.W.2d 708 (1988)
David CHABOT, Respondent,
v.
CITY OF SAUK RAPIDS, Petitioner, Appellant.
Nos. C5-86-2212, C7-87-357.
Supreme Court of Minnesota.
April 22, 1988.
Scott B. Lundquist, Minneapolis, for appellant.
Thomas A. Janson, St. Cloud, for respondent.
Thomas L. Grundhoefer, Clifford M. Greene, St. Paul, amicus curiae.
Heard, considered and decided by the court en banc.
*709 YETKA, Justice.
Appellant City of Sauk Rapids appeals from a decision of the court of appeals, which affirmed the trial court judgment, finding the city liable to respondent landowner for damage to respondent's home caused by flooding of one of the city's storm sewer holding ponds allegedly due to the city's negligence. We reverse with instructions to enter judgment for the City of Sauk Rapids.
Plaintiff-respondent, David Chabot, purchased a home in February 1983 from Wilbert Landwehr. The house, built by Landwehr in 1972, is located across the street from a natural ditch which functioned as a holding pond as part of defendant-appellant City of Sauk Rapids' storm sewer drainage system.
The city is drained by nine separate watersheds. The Pleasantview watershed, which covers Chabot's property, is a natural watershed. It consists of a natural ditch which carries surface water run-off into the Mississippi River. The holding pond was not built by the city. Although the body of water in question is called a holding pond, it was not shaped or created as such by the city. The road running alongside the pond was built at some unknown time in the past and acted to dam the water into a natural basin. The city has attempted to preserve the natural course of the flow of surface water. There was no evidence that the city had in any way diverted the flow of water from its natural course.
In 1972, when Landwehr applied for a permit to build his home, several city officials expressed some concern over the possibility of flooding. Eventually, the city planning commission granted a variance to Landwehr conditioned on steps being taken to maintain the natural waterway near the property.
The house sits at one of the lowest points in the landscape. The footings of the house go right to the stream bed. The residential lots surrounding the property are at a higher elevation. The elevation of the holding pond across the street is higher than the rear of Chabot's property. Thus, the contours of the land would appear to direct the flow of surface water across Chabot's property naturally.
Mark Johnson, formerly city engineer, reviewed the entire storm sewer system for the city in 1979. He determined that the city possessed several drainage problems, including the holding pond across from Chabot's house. As a result of Johnson's initial assessment of the potential problems, the city council commissioned Barr Engineering to review all drainage areas of the city and recommend improvements for the entire city drainage system, including the Pleasantview watershed. The completed report was over 60 pages long and was intended to furnish a guide for the city to improve its drainage system as needed over an extended period.
The Barr report identified a number of potential problem areas, including the holding pond near Chabot's house. The report gave no specific warning of any flooding or damage to Chabot's property. The holding pond was identified as important, but not necessarily as a first priority. The cost of the improvements recommended for just the Pleasantview watershed exceeded $600,000.
The procedures required before the city can make capital improvements are complicated and require a period of time to implement. Johnson, the city engineer who commissioned the Barr study, testified that it was not economically possible to implement the recommendations within 1 year. In fact, Johnson testified that an earlier attempt to upgrade a different storm sewer system in the city met with unprecedented public opposition.
By June 1983, the Barr report had not been implemented in the Pleasantview watershed. On June 25-26, 1983, during an extremely heavy rain storm, the holding pond overflowed. Chabot's property was flooded due to the run-off water, which flowed over the street in its natural course towards the river. The excessive amount of water caused extensive damage, eroding Chabot's front yard, exposing the basement walls to the foundation, causing structural and interior damage to the *710 house, and damaging trees in the yard. Damages were assessed at $53,000.
Chabot brought an action against the City of Sauk Rapids to recover these damages sustained in the flood. At trial, Dr. Charles Nelson, a hydrologist, testified that he had evaluated the pond. He determined that its capacity was limited and could overtop the road if 1.3 inches of rain fell in a half-hour period. The probability of that amount of rain within a half-hour period was estimated at approximately 10% per year. The half-hour period is critical because all rain within the watershed collects in the holding pond within half an hour. However, the pond had not overflowed in at least 66 years.
There were no rain measuring devices in the city so it is not known how much rain fell on June 25-26. The United States Weather Service reported heavy rain in the county. All witnesses who testified noted the unusually heavy rain which fell. Although the city argued that the amount of rain was extraordinary, the jury was instructed that if the rain was "extraordinary," the city was not the direct cause of the damages. Although the exact rainfall in the city cannot be determined, in the expert hydrologist's opinion, the heaviest rainfall estimated in a half-hour period was 1.4 inches, sufficient to cause the pond to flow over the road. Nelson indicated that this was probably a so-called "10-year rain."
Although Chabot's complaint alleged numerous counts, the case was submitted to the jury solely on a negligence theory. The trial court instructed the jury that the city could be found negligent for damages caused by its failure to act after having notice of or knowledge that its drainage system is inadequate and constitutes an unreasonable risk of harm to adjacent property. The jury found the city negligent and that the city's negligence was a direct cause of $53,000 in damages to Chabot's home.
The trial court entered judgment, concluding that the city's defense of discretionary immunity was waived by its procurement of liability insurance under Minn. Stat. § 466.06 (1982). The city appealed on the issues of liability and damages. Chabot appealed the trial court's calculation of pre-verdict interest. The two appeals were consolidated in Chabot v. City of Sauk Rapids, 412 N.W.2d 371 (Minn.App.1987). The court of appeals, in a split decision, affirmed the trial court on the issues of liability and damages and reversed its calculation of interest. The city seeks further review only on the issues of liability and immunity.
The issues the parties raise on appeal are:
I. Is the decision of a city council concerning major capital improvements to its existing drainage system an immune discretionary function under Minn.Stat. § 466.03, subd. 6 (1986)?
II. If the decision constitutes an immune discretionary function, did the city waive its immunity defense by the purchase of liability insurance under Minn.Stat. § 466.06 (1982)?
III. If immunity has been waived, is a city liable in tort for its decision not to make major capital improvements to its existing drainage system after notice that the system may be inadequate?
IV. Did respondent create a jury question on the city's negligence without expert testimony on the appropriate standard of adequacy of the system?
On the first issue, the court of appeals merely concluded that the city's decision not to remedy the pond was "an operational level decision" outside the scope of protected immunity under Minn. Stat. § 466.03, subd. 6 (1986). Chabot, 412 N.W.2d at 376. As we have stated, the simple conclusory labeling of government conduct as "operational" or "planning" is not helpful. Cairl v. State, 323 N.W.2d 20, 23 n. 2 (Minn.1982). In our decision of Nusbaum v. State, 422 N.W.2d 713 (Minn. 1988), we made clear that certain government conduct is protected under the discretionary function exception not simply because *711 it is identified as a planning decision. Rather, it is immune because the specific function involves policy-making that can be made only by the legislative or executive branch of the government. Where the policy-making involves a balancing of social, political, or economic considerations, the conduct is immune as a discretionary function. The challenged conduct here was clearly of a policy-making nature. Governmental immunity would, therefore, apply under the discretionary function exception. Minn.Stat. § 466.03, subd. 6 (1986).
However, a city may waive immunity by the purchase of liability insurance under Minn.Stat. § 466.06 (1982). The city had such insurance here. Thus, the sole issue remaining is whether plaintiff met his burden of proof that the city was negligent, that is, under the facts as presented, whether it possessed and breached a duty of care to Chabot. We think that it did not.
Merely because an accident occurs and immunity is waived does not, in and of itself, establish liability of a municipality. The statute merely waives the city's immunity defense. It does not create tort liability where none existed previously. Plaintiff still has the burden to show what action or inaction constituted negligence on the part of the city, entitling the plaintiff to recover. While it is true that the city has the duty to exercise reasonable care to maintain its facilities in a safe condition, see Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 803 (Minn.1979), that general rule is inapplicable to the facts of this case.
None of the cases cited by the majority below present the issue raised under these particular facts. In Pettinger v. Village of Winnebago, 239 Minn. 156, 162, 58 N.W.2d 325, 329 (1953), for example, the city was found liable for its negligent failure to repair and maintain an inadequately designed sewer system. Similarly, in Greenwood v. Evergreen Mines Co., 220 Minn. 296, 303, 19 N.W.2d 726, 730-31 (1945), the city was held liable for its negligent affirmative actions which blocked the natural outlet of a lake, causing overflow and flooding on the plaintiff's property. See also Stoehr v. City of St. Paul, 54 Minn. 549, 553, 56 N.W. 250, 251 (1893) (city liable for negligent maintenance of storm sewer which caused clogging of culvert and subsequent flooding). In short, the cases relied upon by the court of appeals establish municipal tort liability for either intentional or negligent actions which divert the natural flow of water, causing damage to property which would not normally be in its path. In the present case, however, Chabot's property was damaged because it was in the path of the natural flow of water from the holding pond. There was no evidence that the city's actions in any way changed the direction of the water's natural flow, causing it to flow onto Chabot's property. Rather than being held liable for somehow diverting the natural flow of water onto Chabot's property, as was established in the preceding cases, the city's liability here appears to have been predicated on its failure to divert or hold back the natural flow of water. That is not the basis of liability which has been established under Minnesota tort law.
A case which appears to be more similar to the present facts is Roche v. City of Minneapolis, 223 Minn. 359, 27 N.W.2d 295 (1947), not cited by the court below. Roche held that a city is not liable for water damage to private property, despite the inadequacy of its drainage system, when the private property was the natural depository of the water discharged. Relying upon established principles of tort law, the court found that, when the city had not unnecessarily discharged water upon private property, it cannot be held liable for failing to prevent a natural result. A city is not required to be an insurer for all water damage from the natural flow of surface water. As the court said in Roche: "The only complaint plaintiffs can make is that the municipality did not do more and wholly relieve the premises of surface and infiltrated water." Id. at 365, 27 N.W.2d at 298. The court in Roche found no liability for water damage when the city had not gathered surface waters into a large body and cast them in large quantities in an area where they did not previously flow. Id. *712 See also Dudley v. Village of Buffalo, 73 Minn. 347, 76 N.W. 44 (1898). That seems to be the underlying basis of Chabot's complaint here. However, under Roche and Dudley, the city is not liable for that result.
Significantly, the trial court dismissed all allegations of negligent maintenance at trial, finding no evidence of any improper maintenance or blockage resulting from the city's actions or inactions. Thus, the basis of tort liability in the cases relied upon by the court below (e.g., Pettinger; Greenwood) is not applicable to these facts. The only allegation of negligence remaining which was submitted to the jury was based solely on the alleged inadequacy of the holding pond. The majority of the court below appeared to hold, as the dissenting judge pointed out, that "inadequacy is the equivalent of negligence." 412 N.W.2d at 379 (Sedgwick, J., dissenting). Under Roche, however, mere inadequacy of the drainage system is not the basis of tort liability under Minnesota law. A city has never been required to install a sewer system or to install a system that is adequate to take care of all water. Roche, 223 Minn. at 365, 27 N.W.2d at 298. In other words, while there is a duty to repair and maintain, there is no duty to build.
One fact does distinguish this case from Roche and appears to have been a significant factor in the lower court's determination that a duty existed and was breached. The city had received notice, by means of the 1981 Barr report, that this holding pond, as well as several other storm water areas in the city, was potentially inadequate. At the time of the incident in 1983, the city had failed to act to implement the suggestions in the Barr report, as applied to this or apparently to any other watershed in the city. It is this failure to act which has served as the sole basis for the city's liability.
It is at this point that the lower court's analysis becomes completely inadequate. It is not clear precisely what duty has been imposed on the city as a result of its notice of the possible inadequacy of this holding pond. The Barr report covered other watershed areas of the city and made suggestions for needed capital improvements in other areas as well as this one. Even in its assessment of this holding pond, the report did not specifically advise the city that there was an unreasonable danger of flood damage. The cost of implementing the recommended improvements for this watershed was in excess of $600,000. The city introduced evidence that its decision not to act to implement the suggested capital improvements resulted in part from very strong public opposition to increased expenditures. There was no evidence that the city ever had sufficient funding to implement any portion of the Barr report prior to 1983.
In effect, the imposition of liability here has usurped the city's discretion to decide how or when to act to implement any part of the Barr report. The court and the jury have effectively decided that it was necessary for the city to implement this particular section of the Barr report. Notice of inadequacy was converted to an absolute duty to rebuild. However, no consideration was given to the city council's need to make this decision while considering the best interests of the rest of the community, especially as those interests would be affected by a decision to implement (or not to implement) the remainder of the lengthy report. The report did more than address the possible inadequacies of this one small holding pond. Liability has been imposed, however, because the city failed to implement one suggested improvement without properly considering the context of the city's decision or the need to determine which of the many other suggested improvements was to be given priority. The reality of the situation was that the city did not and could not act immediately to implement the Barr report. The mere acceptance of the report should not be held to have imposed a duty on the city to act at once to correct every inadequacy pointed out in the report. Under the lower court's holding, it would be theoretically possible for the city to be held liable in negligence to everyone who is injured due to the city's failure to implement the Barr report. Thus, receipt of the Barr report alone is an insufficient basis for liability.
*713 It is possible that plaintiff could have shown that, in addition to the Barr report, the city had approved a number of building permits in the immediate vicinity of the Chabot home which added additional run-off of water into the holding pond. He could perhaps have shown by expert testimony that these permits increased the risk of damage to the plaintiff's home. However, other than vague and general references to growth in the watershed area, this evidence, even if available, was not presented.
A city can be liable for trespass or nuisance caused by such an increased flow of water or by a change in the flow of water which affected its normal and natural flow. See Wilson v. Ramacher, 352 N.W.2d 389, 394 (Minn.1984). However, that issue was dismissed by the trial court and was not appealed. Plaintiff elected to proceed at trial and on appeal on the negligence theory alone and has wholly failed, as a matter of law, in our opinion, to prove the essential elements of his case.[1]
Therefore, under the unique facts of this case and the theory of law on which this case was tried, we must reverse the court of appeals and the trial court. We remand to the trial court with instructions to enter judgment for appellant city.
NOTES
[1] Having determined that mere inadequacy of a holding pond is not grounds for a negligence suit, we need not reach the fourth issue regarding the lack of expert testimony on the appropriate standard of adequacy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2106086/ | 203 A.2d 109 (1964)
BANK OF DELAWARE, a banking corporation of the State of Delaware, Defendant Appellant,
v.
UNION WHOLESALE COMPANY, a corporation of the State of Delaware, Plaintiff Appellee.
Supreme Court of Delaware.
August 4, 1964.
William Prickett, Jr., of Prickett & Prickett, Wilmington, for the defendant below, appellant.
Thomas J. Healy, Jr., of Metten, Healy & Collins, Wilmington, for the plaintiff below, appellee.
TERRY, C. J., CAREY, J., and SHORT, V. C. (specially assigned).
SHORT, Vice Chancellor:
This is an appeal from an order of the Superior Court setting aside the verdict of a jury in favor of the defendant and entering judgment for the plaintiff. The facts are fully set forth in the opinion of the court below. See Union Wholesale Company v. Bank of Delaware, Del.Super., 190 A.2d 761. We do, however, find that the statement of facts in the trial court's opinion is inaccurate in one important particular, and since that court's ultimate holding was predicated in a material degree upon the erroneous fact stated, we feel impelled to correct the error and consider the case in the light of the facts supported by the record.
Briefly stated, plaintiff below (Union), a bank depositor, brought suit against defendant below (Bank) to recover money *110 paid out on checks forged by an employee of Union. The checks, being six in number, were cashed by the forger in branches of the Bank. They total $7900. Three of the checks were returned to Union with the Bank's monthly statement in September 1958, two with the October 1958 statement and the last with the November 1958 statement.[1] The Bank admitted liability with respect to the first three checks totalling $3900, but contended that as to the remaining three Union's negligence in failing to examine the statements and cancelled checks was the proximate cause of Union's loss. In stating the facts, the court below said:
"It seems further desirable to point out that the Bank, when it opened accounts, always required duplicate signature cards of authorized signatories on checks, one of which cards was kept at the Main Office and the other at the Branch (there were 5 such branches) where the account was opened; that when a check is presented to a bank teller for cashing the teller has the duplicate signature card for verification and it is always available to the Bank's bookkeeping department to verify the signature before depositor's account is charged with payment of the check. It developed that signature cards were not maintained at all branches. The chief teller of the Bank testified that tellers are instructed to be careful about paying checks, in large amounts, and that they could always go to an officer to have a signature on a check verified. It was made to appear that no teller who cashed the forged checks ever verified the signatures with the signature cards or consulted an officer for verification of the signatures on these forged checks."
We find from an examination of the record that the procedure followed by the Bank in paying checks and verifying signatures is not accurately stated by the above quotation. That statement tends to indicate that it was the duty of the Bank's tellers to verify signatures on checks, and that for this purpose they had available duplicate signature cards. To the contrary, the record establishes that duplicate signature cards were not available at the Bank's branch offices where the checks were cashed, and that the duty of tellers in cashing checks was to be assured only that the check was regular on its face, that sufficient funds were deposited to the account on which it was drawn, and that the payee or last endorser was known or identified. The duty to verify the signature of the maker of a check was that of the bookkeeping department which, after the close of business on each day, checked the signatures of makers before an account was charged with payment. In concluding that the Bank's own testimony established negligence in the payment of the three checks in issue, the trial court relied in a substantial degree upon the failure of the tellers to exercise duties which were not cast upon them by the Bank's customary procedure.
The Bank introduced evidence of its custom in paying checks and verifying signatures. It did not, however, offer any testimony as to the manner in which the checks here involved were handled by its bookkeeping department. It did not call the employees whose duty it was to verify signatures on these checks to test their recollection, if any. Neither did they offer any explanation for their failure to call such employees. The Bank relied in the court below, as it does here, on the bare proof of its custom as probative of the fact that the signatures on the checks were verified according to that custom.
The Bank cites a number of cases to the effect that evidence of habit or custom is admissible to prove what was done on a particular occasion. See Boston Lumber Co. v. Pendleton Brothers, Inc., 102 Conn. 626, 129 A. 782; Ware v. Childs, 82 Vt. 359, 73 A. 994; Moffitt v. Connecticut Co., 86 Conn. 527, 86 A. 16; Baldridge v. *111 Matthews, 378 Pa. 566, 106 A.2d 809. We have found no case in this state which passes upon this question. Assuming such to be the rule in the ordinary case, we are satisfied that it is not applicable in the circumstances here presented. Where a bank pays out money of a depositor otherwise than in conformity with his orders, the bank, at the suit of the depositor, has the burden of establishing its freedom from negligence. National Dredging Co. v. Farmers' Bank, 6 Pennewill 580, 69 A. 607, 16 L.R.A.,N.S., 593. Until this burden is met by the bank its liability is not discharged. We do not think that the mere proof of the customary method of verifying signatures on checks is sufficient, in and of itself, to justify the conclusion that admittedly forged checks were verified in that manner. Nor do we feel that our view lacks the support of authority. Thus, in R. H. Kimball, Inc. v. Rhode Island Hospital Nat. Bank, 72 R.I. 144, 48 A.2d 420, the Supreme Court of Rhode Island in consideration of a similar case said: "There was no evidence that any teller, clerk or officer ever used the plaintiff's signature card by which to verify the signature on any of these forged checks; nor is there specific evidence that any of the * * * checks was actually and individually inspected according to the bank's system."
A case of particular interest in circumstances such as the present is Basch v. Bank of America Nat. Trust & Savings Ass'n., Cal.App., 129 P.2d 742, affirmed 22 Cal. 2d 316, 139 P.2d 1. There, as here, a depositor sued his bank to recover the amount of forged checks charged to his account. The bank, as here, pleaded negligence on the part of the depositor in failing to examine monthly statements and cancelled checks. Evidence was introduced showing the bank's custom in verifying signatures. The teller of the bank's division which was charged with that duty was called as a witness. He was shown certain checks, including several which he himself had previously honored as genuine. After examining these checks he admitted that several of them bore evidence of forgery and should not have been honored. Though this character of testimony would probably occur infrequently, the case nevertheless illustrates the point that witnesses to a transaction, though without specific recollection of its details may, even at a remote time, cast light upon it. In the present case it is quite conceivable that had the employees of the Bank whose duty it was to verify signatures been called as witnesses, one or more of them may have recalled examining the particular checks involved. They might also, as in the Basch case, after examining the signatures on particular checks, have observed something which would have caused them to question the genuineness of such signatures.
In the case of England Nat. Bank v. United States, 5 Cir., 282 F. 121, bank officers, at trial, testified that its custom was to make and mail, upon request, a statement of the depositor's account; that when a statement was made up a date was noted on the bank's records to indicate that it had been sent; that cancelled checks were never returned except in connection with a statement of account; that with respect to the checks involved two clerks were in charge of making the statements and that no one remembered which of them had done so. In these circumstances, fortified by corroborative testimony, the court held that the evidence of the bank's custom and usage was admissible to show that statements of account were made up and, together with cancelled checks, were received by the depositor at about the date of the notation on the bank's records. It is apparent that neither of the clerks who were charged with the duty of making statements was called as a witness. There was, however, testimony that no one remembered which of the clerks had performed this duty. Moreover, there was corroborating testimony to the effect that the checks involved were in fact in the hands of the depositor at about the time noted on the bank's records.
*112 In this case, the trial court did point out that the Bank "did not present substantiation of the evidence as was given by Mr. Pruitt [a bank officer] whose testimony went no further than to outline proper banking practices to be followed by the Bank without some substantiation that such banking practices were carried out and made effective by bank personnel handling the cashing of checks." However, as already observed, this was not the principle ground relied upon by the trial court.
We are of the opinion that in a case of this kind, where the burden of proof is upon the bank to establish its own freedom from negligence, in order to meet that burden it is incumbent on the bank to submit evidence that its customary practices were carried out in the specific instance. If, for any valid reason, it is unable to adduce such evidence, that fact should be made to affirmatively appear before evidence of custom can be accepted as probative of the fact that the practice was followed on the given occasion, assuming the propriety of the rule announced in the Boston Lumber Co., Ware, Moffitt and Baldridge cases, supra.
Here, the Bank neither submitted evidence that its custom was followed with respect to the checks involved, nor offered an explanation for its failure to do so. We are, therefore, satisfied that the mere proof of the Bank's custom was insufficient to warrant the jury in finding that the Bank had followed that custom in the present instance, a finding inherent in the verdict which they rendered. The action taken by the trial court was therefore proper.
The Bank suggests that we review the law as announced in National Dredging Co. v. Farmers Bank, supra, to provide for greater protection to the Bank in keeping with modern practices. We find that the principles laid down in that case are in accord with the great weight of authority, both state and federal. Accordingly, we decline to review it.
The judgment appealed from is affirmed.
NOTES
[1] The opinion of the court below incorrectly recites the year as 1962. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261659/ | 109 Cal.Rptr.2d 762 (2001)
91 Cal.App.4th 1
Terry FINEGAN, Plaintiff and Appellant,
v.
COUNTY OF LOS ANGELES, Defendant and Respondent.
No. B134878.
Court of Appeal, Second District, Division Five.
July 30, 2001.
*763 Fleishman, Fisher & Moest and Bruce Gelber, Los Angeles, for Plaintiff and Appellant.
Law Offices of Michael Thomas, and Craig Donahue; and Greines, Martin, Stein & Richland, and Martin Stein and Barry M. Wolf, Beverly Hills, for Defendant and Respondent.
INTRODUCTION
WILLHITE, J.[*]
When an employer unlawfully fires or discriminates against an employee, recent *764 federal and California cases hold that the employer may not necessarily escape liability through so-called after-acquired evidence of other wrongdoing by the employee showing he would have been fired for other reasons. At issue here is whether that rule bars expert medical testimony offered to rebut the plaintiffs claim that he was qualified to perform his job, which is an essential element of a cause of action for disability discrimination. As set forth below, we hold such evidence is admissible.
PROCEDURAL HISTORY
Plaintiff and appellant Terry Finegan (Finegan) appeals from the judgment entered upon special verdict after a jury rejected Finegan's claim that his employer violated state laws protecting the disabled from job discrimination.
Finegan worked as a nurse at the psychiatric ward of Harbor-UCLA Medical Center (the Hospital). The Hospital was owned and operated by defendant and respondent Los Angeles County (County). In January 1997, the Hospital removed Finegan from his job, contending he was no longer physically able to work on the psychiatric ward. He was off work for 18 months until the Hospital found a suitable position for him. In August 1997, Finegan sued the County under the state's Fair Employment and Housing Act (Gov.Code, § 12940, subd. (a), hereafter "FEHA"), contending he had been the victim of discrimination based upon his physical disabilities. Also named as defendants were Judy Hardy, the Hospital's personnel director, and Balbir Bajwa-Goldsmith, the program director of the psychiatric ward.[1]
A trifurcated jury trial began May 26, 1999, with liability to be tried first, followed by compensatory and punitive damages. On June 11, 1999, the jury rendered a special verdict, finding that Finegan was not qualified to perform the essential functions of his job. Since that was a necessary element of Finegan's prima facie case, judgment for respondents was entered the same day.
FACTS[2]
Finegan began to work at the Hospital's Intensive Care Unit (ICU) in 1981 and received several back and leg injuries while working there. A 1990 injury to his back and shoulder forced Finegan off work for nearly three years and led him to file a workers' compensation claim.
After shoulder surgery in 1992, Finegan was cleared to return to work in November of that year, with a medical restriction against heavy lifting. Even so, he still had pain, stiffness and a limited range of motion. Finegan took various anti-inflammatory drugs to help with his pain. He also took Vicodin, a prescribed narcotic.
Because of the restriction against heavy lifting, Finegan was no longer able to work in the ICU. In February 1993, Finegan was reassigned to the psychiatric ward. Most of the patients on the ward had been committed involuntarily and were considered dangerous to others. It was an essential *765 function of Finegan's job to intervene, sometimes physically, when patients became disruptive.
Finegan was assaulted by patients in 1993 and early 1994. Both times he sought medical treatment and missed a few days' work. He also filed workers' compensation claims for his injuries. Afterward, he complained of pain in his right leg. Finegan began taking Vicodin three times a day, along with a sleep aid medication called Chlorohydrin.
As part of his workers' compensation claims, Finegan was examined in September 1994 by Dr. Richard Masserman. Masserman's report imposed new work restrictions on Finegan, prohibiting "rapid or vigorous repetitive movements, or prolonged positioning of the neck...." To protect Finegan's upper and lower back, Masserman advised that Finegan "should do no very heavy lifting, repeated heavy lifting or repeated vigorous or rapid bending or twisting movements,...." As for Finegan's right shoulder, he was to do "no repeated vigorous or rapid shoulder movements or very heavy pushing or pulling, or repeated or prolonged overhead activities with the upper right extremity." Despite these restrictions, Masserman's report concluded that Finegan was "capable of working within the recommended limitations, as he is doing and does not require vocational rehabilitation."
Although Masserman's report was sent to the Hospital's workers' compensation insurer, for reasons not entirely clear from the record, it appears that the insurer did not send that report to the Hospital until December 5, 1996. Finegan continued to work during this period and received generally good performance reviews. Even so, Finegan's pain worsened and his use of prescription pain medications increased. In addition to Vicodin, he was taking Xanax, an anti-anxiety and muscle relaxant medication, which can cause mental confusion, dullness and fatigue. When these medications failed, he would sometimes use a heating blanket to obtain relief. By 1996, he was taking Duragesic, an opiate delivered by way of a three-day patch which was sometimes prescribed for terminal cancer patients.
Finegan sought medical treatment again in April and June 1996 for back pain and other related complaints. By July, he had added the prescription drug Robaxin to his pain relief regimen. Some days, he combined the various medications.
After Finegan began to work in the psychiatric ward, assistant nurse manager Betty Brown noticed that Finegan moved stiffly, tried to avoid certain movements, and appeared to be in pain. Finegan told Brown he had a bad back. Brown tried to protect Finegan from tasks which involved lifting or repetitious motions. She also noticed that he was sometimes physically unable to respond quickly enough to certain problems. In and around 1996, Brown believed Finegan sometimes appeared "glassy-eyed," a condition she attributed to his pain medications. When Brown asked Finegan about this, he explained that he was in more pain and was trying to cut back on his medications. Brown thought that Finegan was no longer as sharp as he had once been and that he was having bad days more frequently than before.
Finegan was injured again in October 1996 when he tried to stop a patient from escaping. His injuries kept him out of work for one month. When Finegan returned, Brown noticed that he had lost weight, seemed slower, and appeared to be in pain. Concerned about Finegan's condition and the effects of his pain medications, Brown spoke with Corie Green, the nurse manager. Green asked Brown to speak with Finegan, but Brown was *766 unable to do so. Finegan took a week off work in late December 1996 to seek medical treatment for the pain medications he was taking. Finegan told his doctors that he was having difficulty performing his job.
In the meantime, the Hospital's workers' compensation liaison, Connie Olguin, received Masserman's report from the workers' compensation insurer. Olguin informed Bajwa-Goldsmith, who became concerned that the 1994 work restrictions recommended by Masserman placed patients, Finegan, and other nurses at risk.[3] Bajwa-Goldsmith and Green looked at Finegan's history of work injuries and concluded that the movements encompassed by Masserman's restrictions were the ones Finegan made when he was injured. Bajwa-Goldsmith spoke with Brown and learned that Finegan was taking pain medication and was "at times not together, not with it...." A training instructor also told Bajwa-Goldsmith that Finegan had refused to take part in annual physical training, stating that he could not do it. Bajwa-Goldsmith found that information significant.
Bajwa-Goldsmith concluded that Finegan was physically unable to work on the psychiatric ward. Nurses on that ward needed to make quick, repetitive movements to protect themselves and others. Because the nurses must always be on the lookout for danger, that included movements of the neck as well. Bajwa-Goldsmith took her concerns to Hardy, who had the ultimate authority to decide the matter. She told Hardy that if she had known of the restrictions earlier, she would have acted on them.
Relying on Bajwa-Goldsmith's assessment, Hardy notified Finegan on January 23, 1997, that he was not to report to work. The decision was based on the restrictions and Finegan's medical condition. Finegan stipulated to the restrictions as part of his workers' compensation award. In response to interrogatories, Finegan said that because of his orthopedic injuries, he was disabled from performing his duties as a nurse.
In addition to the testimony of the various percipient witnesses, respondents called Dr. Lawrence S. Miller as a medical expert witness to opine whether Finegan was capable of performing his job duties during the period from 1996 through 1998. Miller examined Finegan in April 1999 and reviewed Finegan's medical records. Based on the extent of Finegan's injuriesas evidenced in part by his use of increasingly stronger pain medications Miller opined that Finegan had been unable to perform his job during that time. Finegan objected to Miller's testimony, contending that it amounted to after-acquired evidence of wrongdoing which played no part in the Hospital's decision to remove him from the psychiatric ward. His objections were overruled. The admissibility of that evidence is the sole issue on appeal.
DISCUSSION
Under FEHA, an employer may not discriminate against a worker based on the employee's physical condition or disability. (Gov.Code, § 12940, subd. (a).) Finegan alleged that he had "orthopedic restrictions," which rendered him disabled. According to his first amended complaint, the County violated FEHA because it automatically removed nurses from patient care if they had orthopedic restrictions, *767 without regard to whether a particular nurse could perform the job despite those restrictions.
In order to establish a prima facie case under FEHA, Finegan was required to show that he suffered from a disability, was otherwise qualified to do his job, and was subjected to adverse employment action because of his disability. (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44, 90 Cal.Rptr.2d 15.) Because FEHA is modeled after federal antidiscrimination laws, decisions interpreting the federal statutes are relevant when interpreting similar provisions of FEHA. (Brundage v. Hahn (1997) 57 Cal. App.4th 228, 235, 66 Cal.Rptr.2d 830.) Finegan's appeal turns on one such case McKennon v. Nashville Banner Pub. Co. (1995) 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (McKennon)and its progeny
1. After-Acquired Evidence and the McKennon Case
When an employer being sued for wrongful termination learns after the fact that the plaintiff-employee committed misconduct that would have led to the termination in any event, that knowledge is called after-acquired evidence. (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal. App.4th 833, 842, 77 Cal.Rptr.2d 12 (Murillo ).) The doctrine provides for an equitable defense related to the concept of "unclean hands." (Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1173, 104 Cal.Rptr.2d 95.)
The plaintiff in McKennon alleged she was fired because of her age, in violation of the federal Age Discrimination in Employment Act of 1967. (29 U.S.C. § 621 et seq. (ADEA).) The employer moved for summary judgment on the basis of the plaintiffs deposition admission that she had copied several confidential company documents before she was fired. Conceding that it had discriminated against the plaintiff in violation of the ADEA, the defendant argued that this after-acquired evidence would have led to her termination in any event. The federal appeals court affirmed the district court's award of summary judgment, considering the plaintiffs misconduct to be supervening grounds for termination that barred any relief. The Supreme Court granted review to resolve a conflict among the federal appellate courts on the issue.
The issue, as framed by the Supreme Court, was "whether an employee discharged in violation of the [ADEA] is barred from all relief when, after her discharge, the employer discovers evidence of wrongdoing that, in any event, would have led to the employee's termination on lawful and legitimate grounds." (McKennon, supra, 513 U.S. at p. 354, 115 S.Ct. 879.) The court's analysis was based on the assumption that plaintiff was fired solely because of her age, in violation of the ADEA. (Id. at pp. 356, 359, 115 S.Ct. 879.) The conflict among the federal appellate courts that McKennon sought to resolve was "whether all relief must be denied when an employee has been discharged in violation of the ADEA and the employer later discovers some wrongful conduct that would have led to discharge if it had been discovered earlier." (Id. at p. 356, 115 S.Ct. 879.)
Given the broad, remedial nature of the ADEA, and its objectives of both deterrence and compensation, the court held that after-acquired evidence of wrongdoing should not act as a complete bar to an employee's job discrimination action. Instead, the wrongdoing might serve to limit the employee's remedies to backpay, possibly precluding the right to future pay and reinstatement. (McKennon, supra, 513 U.S. at pp. 358-359, 361-362, 115 S.Ct. 879.)
*768 2. McKennon Is Not Applicable to Dr. Miller's Testimony
Finegan's reliance on McKennon stems from an interrogatory response by the County, which stated that Finegan was removed from the psychiatric ward on account of Masserman's restrictions. Because Hardy stood by that response at trial, Finegan contends respondents' defense was limited to that basis.[4] He argues that Miller's medical expert testimony falls within McKennon since the Hospital did not rely on Miller's conclusions when deciding to remove Finegan. By doing so, he has ignored our previous warnings that "the language of an opinion must be construed in light of the facts of the particular case, an opinion's authority is no broader than its factual setting and the parties cannot rely on a rule announced in a factually dissimilar case." (Vons Companies, Inc. v. United States Fire Ins. Co. (2000) 78 Cal. App.4th 52, 60, 92 Cal.Rptr.2d 597; Aliberti v. Allstate Ins. Co. (1999) 74 Cal. App.4th 138, 148, 87 Cal.Rptr.2d 645; Cochran v. Cochran (1997) 56 Cal. App.4th 1115, 1121, 66 Cal.Rptr.2d 337, citation omitted.)
As set forth below, the McKennon holding applies when the employer's discriminatory conduct has been established or conceded. If so, the employer may not avoid liability by pointing to some other reason, which would have justified firing the plaintiff-employee, but which was not discovered until later. Decisions which have followed McKennon fall into that category. McKennon does not apply when the employer disputes liability and relies on later-acquired medical evidence to show the plaintiff was not qualified for the job.
In O'Day v. McDonnell Douglas Helicopter Co. (9th Cir.1996) 79 F.3d 756 (O'Day), the plaintiff sued his former employer for age discrimination under the ADEA. The employer learned during discovery that the plaintiff had stolen certain confidential documents and sought summary judgment under the after-acquired evidence doctrine. Applying McKennon, the federal appeals court reversed in part, holding that the after-acquired evidence did not bar the plaintiffs entire claim but limited his damages to backpay and any other relief not precluded by McKennon. In reaching that conclusion, the O'Day court made several pertinent observations. First, the trial court assumed for purposes of the motion that the defendant had in fact discriminated against the plaintiff. (O'Day, supra, 79 F.3d at p. 758.) Second, the McKennon context exists where "the employer's actual motive for taking the employment action is clear and illegal." (Id at p. 760, citation omitted.)
In Murillo, supra, 65 Cal.App.4th 833, 77 Cal.Rptr.2d 12, the plaintiff sued her employer for common law wrongful termination and for sex harassment under FEHA and its federal law counterpart. During discovery, the plaintiff admitted she was an undocumented alien. The defendant then moved for summary judgment, arguing that this after-acquired evidence would have justified its decision to fire plaintiff. The trial court granted the motion.
The appellate court reversed, holding that it violated public policy to bar relief *769 for injuries arising from the employer's discrimination that occurred during the plaintiffs term of employment. (Murillo, supra, 65 Cal.App.4th at pp. 847-851, 77 Cal.Rptr.2d 12.) In doing so, the court noted that the defendant's summary judgment motion relied solely on the afteracquired evidence doctrine and did not seek to adjudicate any other issues. As a result, the court was "not concerned with any of the evidentiary issues underpinning plaintiffs claims." (Id. at p. 841, 77 Cal. Rptr.2d 12.) In short, the defendant conceded that it violated FEHA for purposes of its motion.[5]
When the employer's liability is at issue, however, it may use medical evidence obtained after the fact in order to show that the plaintiff was not qualified for the job. In Mantolete v. Bolger (9th Cir. 1985) 767 F.2d 1416 (Mantolete)a decision that predates McKennonthe Ninth Circuit considered the case of an epileptic who was denied a job with the United States Postal Service on the basis she would be exposed to flashing lights that might trigger a seizure. The plaintiff sued under section 501 of the federal Rehabilitation Act. (29 U.S.C. § 791.)[6] The district court entered judgment for the Postal Service.
One issue on appeal was the admissibility of medical evidence concerning the plaintiffs condition which the defendant obtained after rejecting plaintiffs employment application. Plaintiff argued that the evidence was inadmissible since the Postal Service did not rely on it when making its decision. Although it was questionable whether such evidence could be used to enlarge the basis upon which the defendant acted, it was properly admitted to rebut the plaintiffs prima facie showing that she was qualified for the job: "Here, the district court determined that such evidence would be relevant as part of the defendant's efforts to rebut Mantolete's prima facie case of discrimination. The district court did not rely on post-decision evidence to conclude that the Postal Service was reasonable in its rejection of Mantolete's application. The evidence of the appellant's actual medical condition was therefore limited to the defendant's claim that Mantolete suffered from a condition that prevented her from performing the essential functions of the job. The evidence was not admitted as an after-the-fact effort to demonstrate a nondiscriminatory motive. Thus, the evidence was admissible to rebut the appellant's claim that she was qualified for the position, but was not admissible to enlarge the basis upon which the employer relied to reject the appellant at the time the decision was made." (Mantolete, supra, 767 F.2d at p. 1424.)
*770 The same reasoning was applied by the Second Circuit in a post-McKennon decisionTeahan v. Metro-North Commuter Railroad Co. (2d Cir.1996) 80 F.3d 50 (Teahan). The plaintiff in Teahan was fired for excessive absenteeism related to a drug abuse problem, even though he had completed a drug rehabilitation program. His action under the federal Rehabilitation Act was dismissed after a bench trial.
On appeal, he contended the district court violated McKennon by admitting expert medical testimony that showed he would likely suffer a relapse. The Teahan court disagreed, stating that the evidence was not offered to present an alternative, legitimate reason for the termination but was instead offered to prove that the decision had a reasonable basis under all the facts as they existed at the time of the dismissal. "[T]he issue `whether the employee is "otherwise qualified" as of the date of termination is forward looking and enables the employer to consider how the employee will perform as compared to nonhandicapped individuals.' [Citation.] Thus, the expert testimony at trial was necessarily predictive. Accordingly, the rule announced in McKennon has no application here." (Teahan, supra, 80 F.3d at p. 55.)
Finegan cites several decisions to support his reading of McKennon or to undercut the precedential value of Mantolete and Teahan. None is applicable. (Bragdon v. Abbott (1998) 524 U.S. 624, 650, 118 S.Ct. 2196, 141 L.Ed.2d 540 [dentist who was sued under ADA for refusing to treat HIV-infected patient had to rely on objective medical evidence available at the time to make out defense that treating the plaintiff posed a direct threat to his health]; Kirkingburg v. Albertson's Inc. (9th Cir.1998) 143 F.3d 1228, 1235, fn. 7, overruled on other grounds by Albertson's, Inc. v. Kirkingburg (1999) 527 U.S. 555, 119 S.Ct. 2162, 144 L.Ed.2d 518 [employer could not rely on after-the-fact court decision invalidating a federal program to justify its decision to fire a truck driver when it in fact fired the driver despite the existence of that program; held factually similar to McKennon and O'Day]; Heilweil v. Mt. Sinai Hospital (2d Cir.1994) 32 F.3d 718, 724-725 [judgment for defendant employer in ADA case by plaintiff fired after reporting that working in closed office space aggravated her asthma; just as Mantolete held employer may not rely on after-acquired evidence to justify decision to terminate, the employee could not rely on new medical evidence to show she had a qualifying handicap under ADA at time she was fired]; Bento v. I.T.O. Corp. of Rhode Island (D.R.I.1984) 599 F.Supp. 731, 743 [new medical evidence showing defendant was fit to return to work had no bearing on reasonableness of employer's decision based on then-available knowledge]; Cotran v. Rollins Hudig Hall Internal, Inc. (1998) 17 Cal.4th 93, 107-109, 69 Cal.Rptr.2d 900, 948 P.2d 412 [in action for breach of employment contract to fire only for cause, employer is not liable for incorrect decision based on good faith, reasonable investigation, as measured by knowledge available at the time].)
Other post-McKennon decisions support our analysis. The plaintiff in McConathy v. Dr. Pepper/Seven Up Corp. (5th Cir. 1998) 131 F.3d 558, sued her employer, claiming she was fired in violation of the ADA. The employer was granted summary judgment on the ground that plaintiff was judicially estopped from claiming she was qualified for the job based on a statement in her application for Social Security disability benefits that she was unable to work even part time. The district court's use of that evidence did not violate McKennon because "her statements are being used in this case in relation to her job qualifications, a matter which has nothing *771 to do with the motivation behind her employer's action. McKennon involves the use of after-acquired evidence for a different reason than here, and is therefore not on point." (At p. 563.) The court in Gant v. Wallingford Board of Education (2d Cir.1999) 195 F.3d 134, considered a federal civil rights claim brought on behalf of a young child based on allegations the child was demoted from first grade to kindergarten because of his race. The school district was granted summary judgment and the plaintiff appealed. One issue on appeal was the use of an after-the-fact academic assessment to support the defendant's claim that the child was transferred because he was not academically ready for the first grade. The Second Circuit held that use of the evidence did not violate McKennon because the defendants did not rely on it to show they would have transferred the child in any event. Instead, they relied on the after-acquired evidence to show that the assessment on which the decision was based was accurate. (At p. 147, fn. 17.)
When synthesized and applied here, these decisions mean that an employer who unlawfully discriminates against an employee may not necessarily rely on after-acquired evidence of previously unknown wrongdoing by the employee to justify its unlawful action. However, where later-acquired medical evidence is offered to support the originally proffered reason and show the plaintiff was not qualified for the job, the evidence is admissible. (McKennon, supra, 513 U.S. at pp. 356, 359-360, 115 S.Ct. 879; Teahan, supra, 80 F.3d at p. 55; Mantolete, supra, 767 F.2d at p. 1424.)
Miller's expert testimony falls squarely within the Mantolete and Teahan exceptions. The evidence was offered and admitted to rebut Finegan's showing on the prima facie element of his ability to perform his job. Miller testified that he examined Finegan and reviewed Finegan's medical records. Based on that information, Miller opined that by December 1996, Finegan was no longer safely able to perform his job tasks and should have been restricted to a sedentary position. This evidence did not provide legitimate cover for an otherwise unlawful decision. Instead, it bore directly on the reason first given for removing Finegan from the psychiatric ward and rebutted an element of his prima facie casethat he was otherwise qualified for the position. Accordingly, the trial court did not err by permitting Miller's testimony.
DISPOSITION
For the reasons set forth above, the judgment is affirmed. Respondents to recover their costs on appeal.
TURNER, P.J., and GRIGNON, J., concur.
NOTES
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] Bajwa-Goldsmith died before the trial began. We will sometimes refer to the County and Hardy collectively as respondents. Finegan's operative first amended complaint also included causes of action under various federal civil rights laws and for declaratory and injunctive relief. In June 1999, those claims were summarily adjudicated in respondents' favor, leaving only the FEHA claim.
[2] In accord with the usual rules on appeal, we state the facts in the manner most favorable to the judgment. (Kotler v. Alma Lodge (1998) 63 Cal.App.4th 1381, 1383, fn. 1, 74 Cal.Rptr.2d 721.) Our recitation of the facts is derived from the trial testimony and is narrowly tailored to fit the issues raised on appeal.
[3] Bajwa-Goldsmith's account comes from her deposition testimony, which was put in evidence because she died before trial.
[4] We do not read the record as narrowly as does Finegan. Under examination by her own counsel, Hardy also testified that she relied on Bajwa-Goldsmith's assessment of the situation. Bajwa-Goldsmith's conclusions were based in part on her own beliefs concerning Finegan's inability to perform the job and in part on what she learned from Brown, Green and the nursing staff's training instructor. Our analysis is unaffected by these differing views of the evidence.
[5] In Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th 614, 29 Cal.Rptr.2d 642, a decision which presaged McKennon, the court similarly held that after-acquired evidence of employee wrongdoing could not be used to bar relief for an employee who shows that he performed competently and was fired without cause, in violation of his employment contract or applicable antidiscrimination laws. (Id. at p. 618, 29 Cal.Rptr.2d 642.) In Camp v. Jeffer, Mangels, Butler & Martnaro (1995) 35 Cal.App.4th 620, 41 Cal.Rptr.2d 329, the court distinguished McKennon and held that after-acquired evidence of employee wrongdoing which went to the heart of the employment relationshipconcealing felony convictions which would have barred their employment in the first instance under applicable federal rulescould be used as a defense to common law wrongful termination claims. (Id. at pp. 637-639, 41 Cal.Rptr.2d 329.)
[6] The Rehabilitation Act was a precursor of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq. (ADA)). (Black v. Department of Mental Health (2000) 83 Cal. App.4th 739, 748, 100 Cal.Rptr.2d 39.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2547164/ | 25 So. 3d 221 (2009)
STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
v.
Paul Henry WAGNER.
No. 09-644.
Court of Appeal of Louisiana, Third Circuit.
December 9, 2009.
*222 Bernard L. Knobloch, Jr., Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant, State of Louisiana, Department of Transportation and Development.
R. Joseph Wilson, Donald R. Wilson, Attorneys at Law, for Defendant/Appellee, Paul Henry Wagner.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR and BILLY HOWARD EZELL, Judges.
DECUIR, Judge.
In this expropriation case, a jury determined the amount of damages to be paid to Paul Henry Wagner by the Louisiana Department of Transportation and Development (DOTD) for the taking of Wagner's property in a road construction project. The $136,242.00 award consisted of $84,588.00 as the value of the property taken with improvements, and $51,654.00 in other economic losses. Wagner was also awarded attorney fees equal to 25% of $51,162.00, described in the judgment as *223 "the difference between the amount awarded for compensation and the amount deposited into the Registry of Court." Both Wagner and DOTD have appealed the economic loss portion of the award, and Wagner requests an increase in attorney fees. For the following reasons, the judgment rendered below is amended as urged by Wagner, and as amended, is hereby affirmed.
Wagner was the owner of 2.465 acres of land located at the intersection of U.S. Highway 165 and U.S. Highway 84 in LaSalle Parish near the town of Tullos. On January 27, 2006, in connection with the widening and improvement of U.S. Highway 165, DOTD expropriated a portion of the land owned by Wagner. The taking consisted of 0.885 acres and included two gutted buildings, built decades ago as a gas station and restaurant, leased at the time of the taking for a future flea market. The remaining property, which Wagner had never developed since inheriting the tract in the 1980s, consisted of a wooded lot fronting U.S. Highway 165 and restricted in part by a sewage servitude.
Wagner testified that he hoped to build a modern gas station and convenience store on the property. He presented the testimony of Michael Wilson, who was qualified as an expert in the planning, construction, and operation of convenience stores, who opined that the highest and best use of the subject property is as a convenience store due to several factors. The property is located at the only intersection of two U.S. highways in the parish, it is sixty miles along U.S. Highway 165 from the nearest similar facility, and it is the only corner at the intersection feasible for construction of such a facility. Wagner also presented the testimony of two experts who described the steps necessary to prepare the wooded, unimproved property for construction, including moving the sewage line, at a cost of nearly $130,000.00. In this appeal, Wagner does not ask the court to award damages for the construction of a new, modern building; rather, he requests an increase in damages to reflect the estimated cost of preparing his remaining tract for construction at his own expense. Mr. Shelby Loe, an expert contractor in the field of site preparation, estimated that cost at $129,291.50. Loe's testimony was unrefuted.
By contrast, DOTD's evidence consisted of estimates of the value of the property taken and severance damages, as well as a discussion of the lack of other economic damages. Severance damage is essentially the diminution in value of the landowner's remaining property after the taking of the subject property. The State's appraisers used different methods of calculating Wagner's loss and ultimately offered Wagner a total of $85,080.00, representing the value of the land and improvements thereto, plus severance damages. DOTD deposited that amount into the registry of the court at the time of the taking.
After considering the evidence presented, the jury awarded Wagner a portion of the damages he claimed, assessed at $51,654.00 for "other economic losses," a figure taken from Loe's testimony and listed as an itemized expense in the work he proposed. DOTD contends Wagner has not proved any economic losses, while Wagner argues he is entitled to no less than $129,291.50, the full amount of Loe's proposed work.
In the recent case of Lafayette City-Parish Consolidated Government v. Entergy Gulf States, Inc., 07-1065 (La.App. 3 Cir. 1/30/08), 975 So. 2d 177, 181, writ denied, 08-685 (La.5/16/08), 980 So. 2d 712, this court discussed the standard of review in an expropriation case:
The standard of appellate review of factual findings in a civil action is the *224 manifest error/clearly wrong standard, and factual findings should not be reversed absent manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So. 2d 840 (La.1989). If the trial court's findings are reasonable in light of the record reviewed in its entirety, the reviewing court may not reverse. Sistler v. Liberty Mut. Ins. Co., 558 So. 2d 1106 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Id.
An assessment of damages in an expropriation case must include consideration of the most profitable use to which the land can be put "by reason of its location, topography, and adaptability." City of Shreveport v. Abe Meyer Corp., 219 La. 128, 52 So. 2d 445, 447 (1951). The process of taking such factors into consideration is commonly known as the "highest and best use" doctrine. Exxon Pipeline Co. v. Hill, 00-2535 (La.5/15/01), 788 So. 2d 1154, 1160; State, Dep't of Highways v. Rapier, 246 La. 150, 164 So. 2d 280 (1964). "It is well established that the current use of the property is presumed to be the highest and best use and the burden of overcoming that presumption by proving the existence of a different highest and best use based on a potential, future use is on the landowner. . . . The characteristics examined by the experts cannot be speculative and must consider the property in its use at the time of expropriation." Exxon, 788 So.2d at 1160-62.
The jury was presented with evidence showing that the highest and best use of the subject property was as a commercial site. Wagner testified as to his intention to build a gas station and convenience store on the property. Wagner explained that he had not upgraded to a new gas facility which complied with current laws because the road construction project had been discussed for a decade or more; he did not want to build a modern gas station only to have it torn down by DOTD a few years later. The jury also heard evidence regarding the need to incur expenses in moving the sewage line on the remainder property. Mr. Loe's testimony on that subject, as well as his written estimate of $129,291.50 in costs to properly prepare the property for construction, was uncontradicted by DOTD. Nevertheless, the jury quantified Wagner's economic loss in the adaptation of the remainder property to commercial use at $51,654.00, a figure taken from the testimony of Mr. Loe, but which specifically did not include the cost of moving the sewage line. Finding error in the jury's decision to award only part of the proven amount of damages, we increase the economic damages awarded to Wagner to $129,291.50.
In this appeal, Wagner also requests an increase in the amount of attorney fees awarded by the trial court, as well as additional attorney fees for work done pursuant to this appeal. As Wagner's appellate efforts have been successful, we find he is entitled to the relief sought. We hereby increase attorney fees to 25% of $129,291.50, and we award $5,000.00 for work performed pursuant to this appeal
For the above and foregoing reasons, the judgment of the trial court is amended so as to increase the award of damages to $129,291.50, increase the award of attorney fees to 25% of $129,291.50, and award $5,000.00 in additional fees for work done on appeal. As so amended, the judgment is hereby affirmed. Costs of the appeal are assessed to DOTD, specified as $3,200.70.
AFFIRMED AS AMENDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4516209/ | FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 13, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-5007
(D.C. No. 4:19-CR-00087-JED-1)
KEVIN GLENN PETTY, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, McHUGH, and CARSON, Circuit Judges.
_________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Kevin Glenn Petty’s plea agreement pursuant to United States v.
Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). Exercising
jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal.
Petty pleaded guilty to theft of government property, in violation of 18 U.S.C.
§ 641. As part of his plea agreement, he waived his right to appeal his conviction and
any sentence, unless the sentence imposed exceeded the statutory maximum of
120 months’ imprisonment. The plea agreement acknowledged that Petty was
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
entering his plea knowingly and voluntarily and that he understood its consequences,
including the possible sentences and appeal waiver. At the change of plea hearing,
the district court reminded him of the possible sentences and broad appeal waiver,
and he confirmed that he understood and that he wanted to plead guilty. Based on his
responses to the court’s questions and its observations of his demeanor during the
hearing, the court accepted Petty’s plea as having been knowingly and voluntarily
entered. It then sentenced him to 24 months’ imprisonment, which was the minimum
sentence in the applicable guidelines range. Despite his appeal waiver and the fact
that his sentence was below the statutory maximum, Petty filed a notice of appeal.
In ruling on a motion to enforce, we consider: “(1) whether the disputed
appeal falls within the scope of the waiver of appellate rights; (2) whether the
defendant knowingly and voluntarily waived his appellate rights; and (3) whether
enforcing the waiver would result in a miscarriage of justice.” Hahn, 359 F.3d at
1325.
In response to the government’s motion to enforce, Petty’s counsel stated that
Petty has no non-frivolous argument against enforcement of his appeal waiver. We
gave Petty an opportunity to file a pro se response to the motion to enforce, but he
has not done so. We construe the counseled response and Petty’s failure to file a
pro se objection to the motion to enforce as a concession that his waiver was knowing
and voluntary, that his appeal falls within the scope of the waiver, and that
enforcement of the waiver would not result in a miscarriage of justice. See United
2
States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (noting that court need not
address uncontested Hahn factor).
Accordingly, we grant the government’s motion to enforce the appeal waiver
and dismiss the appeal.
Entered for the Court
Per Curiam
3 | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2261551/ | 85 N.J. 576 (1981)
428 A.2d 1268
IN THE MATTER OF THE APPLICATION OF PHILIP J. LiVOLSI, PETITIONER.
The Supreme Court of New Jersey.
Argued October 6, 1980.
Decided April 13, 1981.
*581 Leonard J. Wood argued the cause for petitioner (Console, Marmero and LiVolsi, attorneys).
Bernard F. Conway argued the cause for amicus curiae, New Jersey State Bar Association.
Andrea M. Silkowitz, Deputy Attorney General, argued the cause for the State of New Jersey (John J. Degnan, Attorney General of New Jersey, attorney; Stephen Skillman, Assistant Attorney General, of counsel).
The opinion of the Court was delivered by WILENTZ, C.J.
This case involves challenges to the constitutionality and desirability of the Fee Arbitration Committees (Committees) established by this Court in R.1:20A pursuant to our constitutional authority to regulate the practice of law. The Rule's purpose was to provide a satisfactory mechanism for the resolution of fee disputes between attorneys and their clients. As presently constituted, a Committee must arbitrate fee disputes upon a client's request (whether the lawyer consents or not), or upon a lawyer's request if the client consents. R.1:20A-3(a). The Committee's determination is binding on both client and attorney, and is unappealable. R.1:20A-3(a)(c)(d). The procedures *582 of the Committee are essentially the same as those of District Ethics Committees. R.1:20A-3(b).
Petitioner LiVolsi and amicus New Jersey State Bar Association (Association) contend that R.1:20A is unconstitutional for four reasons: that promulgation of R.1:20A is beyond the Supreme Court's authority under N.J.Const. (1947), Art. VI, § II, par. 3; that it denies lawyers equal protection of the laws; that it denies attorneys the right to trial by jury guaranteed by the New Jersey Constitution; and that the unappealability of Committee determinations violates both the due process clause of the Fourteenth Amendment and the New Jersey Constitution. We reject these contentions and uphold the validity of R.1:20A. We also reject the Association's argument that the compulsory nature of Committee arbitrations is undesirable and reaffirm our commitment to R.1:20A.
I.
PROCEDURAL BACKGROUND AND JURISDICTION
Petitioner, a member of the New Jersey Bar, brought an action against this Court in the United States District Court, District of New Jersey, challenging the constitutionality of R.1:20A. While this action was pending, we invited petitioner to bring his challenge before our Court. Petitioner agreed to do so and on April 2, 1979, exercising original jurisdiction over this matter, we permitted petitioner to file a petition directly with this Court "for a determination of the constitutionality of R.1:20A and further, to determine the intended scope and meaning of the aforementioned Rule." Order of April 2, 1979. Subsequently, petitioner filed a brief in support of his claim, and an amicus brief was filed by the Association supporting his position. A brief in opposition was filed by the Attorney General.
Although none of the parties before us challenges the procedure by which we are hearing this petition, we feel it necessary to explain this rather unusual exercise of our original jurisdiction. This Court is, of course, primarily an appellate *583 body, N.J.Const. (1947), Art. VI, § II, par. 2.[1] It could be argued that we are exclusively an appellate body because the only explicit grant of original jurisdiction to this Court comes from N.J.Const. (1947), Art. VI, § V, par. 3,[2] which permits original jurisdiction "as may be necessary to the complete determination of any cause on review." Plainly, this provision grants us original jurisdiction only over matters related to causes already before us. See, e.g., Kelly v. Curtiss, 16 N.J. 265 (1954); City of Newark v. West Milford Twp., 9 N.J. 295 (1952).
We find, however, that N.J.Const. (1947), Art. VI, § II, par. 3,[3] provides this Court with an independent basis for exercising original jurisdiction in the case before us. This provision grants us "jurisdiction" over the "discipline of persons admitted" to the Bar. It is the source of our exclusive power over the practice of law. State v. Rush, 46 N.J. 399, 411-12 (1966). We have recently held that the Supreme Court, acting pursuant to that power, has the authority to initiate disciplinary proceedings on its own as well as to review those conducted by Ethics Committees. In re Loring, 73 N.J. 282, 289 (1977). We have also held that this power enables us to adjudicate a dispute about the unauthorized practice of law even though the party *584 seeking relief might not have traditional standing. In re Estate of Margow, 77 N.J. 316, 323 (1978).[4]
These cases, recognizing that this Court's plenary constitutional authority includes original jurisdiction over cases involving the "disciplining" of attorneys, imply that we also have original jurisdiction over challenges to the methods by which we exercise constitutional authority. It would make little sense for us to have original jurisdiction over the appropriateness, or the constitutionality, of disciplining individual attorneys while challenges to the constitutionality of our agencies, such as the Committees, must necessarily go first to Superior Court. The constitutional provision, Art. VI, § II, par. 3, must be read as vesting original, as well as appellate, jurisdiction in this Court over all matters concerning our authority to "discipline" the Bar.[5] We therefore hold that we may exercise original jurisdiction over this challenge to R.1:20A.
II.
CONSTITUTIONALITY OF R.1:20A
A. The Power of this Court to Promulgate R.1:20A
There is something almost anachronistic about the challenge to the Court's power to adopt R.1:20A under the New Jersey *585 Constitution. For 33 years this Court has exercised plenary, exclusive, and almost unchallenged power over the practice of law in all of its aspects under N.J.Const. (1947), Art. VI, § II, par. 3. The enormous scope of this power puts R.1:20A in proper perspective. Though critically important, it is but a minor regulation of the practice of law compared to others whose validity is beyond dispute.
The heart of the constitutional provisions concerning the judicial system was the concentration of responsibility for its proper functioning in the Supreme Court and Chief Justice. Such responsibility requires appropriate power over courts, judges, practice and procedure, and lawyers. Responsibility for an adversarial judicial system requires responsibility for the adversaries, and control over both.
In exercising this responsibility, one of the many goals this Court has sought to achieve has been maintaining public confidence in the judicial system. The intended direct beneficiary of that system is the litigant, the client, who can realistically gain access to it only through his relationship with a lawyer. The value of the judicial product depends upon the effectiveness of this access, the effectiveness of this relationship. If lawyers refuse to represent, the judicial system is almost worthless; if the terms and conditions of representation are unfair, the judicial system is impaired to that extent. This dependency of the public's confidence in the judicial system on its satisfaction with lawyer-client relationships is not theoretical: those dissatisfied with the system include a fair proportion dissatisfied with their lawyer. The most common cause of that dissatisfaction concerns fees, see section IIIA, infra.
Given the critical importance of the constitutional power of this Court over the practice of law, and its pervasiveness, starting with admission, ending with disbarment, and covering everything in between, we have no doubt that the power extends to every aspect of fee agreements between lawyers and clients. If this Court can set a limit on fees for certain matters, *586 American Trial Lawyers v. New Jersey Supreme Court, 66 N.J. 258 (1974) (upholding the contingent fee schedule promulgated in R.1:21-7); require service for no fee at all in others, State v. Rush, supra, 46 N.J. at 411-12 (noting this Court's authority to require attorneys to defend indigents without charge); and disregard completely fee agreements in all matters (if they are unreasonable), Steiner v. Stein, 2 N.J. 367, 372 (1949) (see section IIC, infra); if, in short, this Court has the authority to control the substance of the fee relationship, then a power of a lesser magnitude determining the procedure for resolving fee disputes must also be within our province.[6]
B. The Equal Protection Claim
Petitioner maintains that his right to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution is violated by R.1:20A. This Rule, it is argued, unconstitutionally "singles out" attorneys from among professionals who provide fee-based services for compulsory arbitration. We find no support for this argument in federal constitutional law.
Since lawyers are not a protected "suspect class," and since there is no recognized fundamental right being infringed upon by R.1:20A, there need be only a rational basis supporting the difference in treatment. See San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). We find that such a rational basis plainly exists in the need to assure the reasonableness of attorney-client fees by providing a swift, inexpensive remedy to correct unreasonable fees. As the *587 United States Supreme Court has recognized, the state has a special interest in regulating the legal profession and attorney-client relationships. Goldfarb v. Virginia State Bar Association, 421 U.S. 773, 792, 95 S.Ct. 2004, 2015, 44 L.Ed.2d 572 (1975). See In re Logan, 70 N.J. 222, 229-30 (1976).
C. The Right to Jury Trial
Petitioner and the Association maintain that R.1:20A unconstitutionally denies attorneys the right to trial by jury guaranteed by N.J.Const. (1947), Art. I, par. 9.[7] We disagree, on the two grounds that in New Jersey attorneys never had an absolute right to trial by jury in fee dispute cases and that recognizing a jury right in such cases would undermine our constitutional authority to regulate the Bar.
N.J.Const. (1947), Art. I, par. 9, provides that "[t]he right of trial by jury shall remain inviolate...." This provision guarantees a jury trial only to the extent the right existed at the time of the adoption of the 1947 Constitution. See Steiner v. Stein, supra, 2 N.J. at 378-79. Petitioner therefore must establish that before 1947 attorneys had a right to a jury trial in cases involving fee disputes with their clients.
Petitioner and the Association maintain that fee disputes are essentially nothing more than contract disputes for money. Since, they argue, such disputes have always been considered "legal" as opposed to "equitable," and since litigants always had a right to jury trial of "legal" matters, attorneys always had the right to jury trial in fee dispute cases. Support for this position can be found in Steiner, where this Court stated that "[attorney-client *588 fee disputes] are actions for breach of contract and the parties were and are entitled to a trial by jury as of right." 2 N.J. at 372.
The Court in Steiner went on, however, to recognize that, because "an attorney's position of trust as an officer of the court obligated him to the highest standard of fair dealing," New Jersey courts of equity have traditionally exercised jurisdiction "at the behest of the client" to "revis[e] or cance[l] contracts for services" and to "determin[e] the just and reasonable sum due the attorney from his client." Id. The Court noted that equity courts have gone so far as to "restrain actions at law" in order to exercise this jurisdiction, but that the equity courts have stayed their hand when a client has already "had his day in a court of law." Id.
Our canvass of the pre-1947 case law strongly supports the Court's findings in Steiner that New Jersey equity courts have always had broad powers to adjudicate attorney-client fee disputes on behalf of the client. In Lewis v. Morgan, 132 N.J. Eq. 343 (Ch. 1942), for example, a client brought an action in equity to enjoin prosecution by his attorney of a suit at law to recover attorney fees. The client wanted the Chancery Court to review the reasonableness of the fee his attorney sought. The defendant attorney argued that the Chancery Court lacked jurisdiction over the case and that his suit at law should therefore not be enjoined. The court granted the injunction, holding that the "existence of a confidential relationship between an attorney and client has been recognized from the earliest times and it must now be acknowledged that the charges of an attorney are always subject to the scrutiny and review of this court." Id. at 346 (emphasis added).[8] The court added that even if "a client agreed to the estimated amount of the fee to be charged, equity *589 will investigate the fairness and reasonableness of the contract." Id. Similarly, in Grimm v. Franklin, 102 N.J. Eq. 198 (Ch. 1928), aff'd p.c.o.b., 146 A. 914 (E. & A. 1929), the Chancery Court enjoined several law suits brought by the defendant attorney against the plaintiff client seeking attorney's fees. There, the court noted the defendant's admission that "the charges of an attorney are always subject to scrutiny and review in this court, and that this court has a right now to determine the fairness and reasonableness of the contract [and] the adequacy and propriety of the compensation therein provided for." Id. at 204 (emphasis added).[9]See also Porter v. Bergen, 54 N.J. Eq. 405, 406 (E. & A. 1896) ("Even if it be conceded that the [client] agreed to the [fee], yet a court of equity would not sanction it except upon proof of its perfect fairness"); Sinisi v. Milton, 107 N.J. Eq. 179 (Ch. 1930); Kelley v. Schwinghammer, 78 N.J. Eq. 437 (Ch. 1911); Lewis, "Equity," 4 Rut.L.Rev. 274, 275 (1949).[10] As the Court noted in Steiner, however, equity courts were not permitted to step in after a law court had already adjudicated a fee dispute. See Raimondi v. Bianchi, 102 N.J. Eq. 254 (E. & A. 1928).
The rationale behind this broad power exercised by equity courts over attorney-client fee disputes was explained by Justice Heher in Bolte v. Rainville, 138 N.J. Eq. 508 (E. & A. 1946). Courts, Justice Heher pointed out, recognize the "position of superiority which the attorney occupies over his client [and] [b]ecause of this dominance [equity] raises a presumption against the validity of the transaction [between attorney and client] and casts upon the dominant party the burden of proving *590 affirmatively his compliance with equitable requisites and thereby overcoming the presumption of invalidity." Id. at 515.[11]
These cases establish that prior to 1947 attorneys had no right to prevent their clients from having fee disputes adjudicated without a jury in the courts of equity. They therefore have no such right today since the 1947 Constitution does not purport to add any right to jury trial. Steiner was not wrong, however, in concluding that fee disputes are essentially legal matters for which a jury is normally guaranteed. If the client does not object, an attorney is entitled to have a jury trial.[12] However, if the client wishes to have the dispute adjudicated without a jury, by a Committee which is now the tribunal with special responsibility over attorney-client fee disputes[13] the attorney cannot block the Committee's jurisdiction by asserting a right to trial by jury.
Our conclusion here is buttressed by the fact that recognizing a right in lawyers to demand a trial by jury when clients seek R. *591 1:20A arbitration would greatly undermine this Court's constitutional authority to regulate the Bar. As we have determined, see section IIA, supra, N.J.Const. (1947), Art. VI, § II, par. 3, plainly authorizes us to create the R.1:20A compulsory arbitration scheme. If we were to accept petitioner's interpretation of Art. I, par. 9, however, this authority would be meaningless because lawyers could simply block Committee arbitrations by demanding a jury. We decline so to interpret that provision. Just as we would not view the framers of the 1947 Constitution as intending the prerogative writ clause to undermine our authority to regulate the Bar, see section IID(2), infra, so we decline to ascribe to them an intent to grant lawyers a jury right that would prevent this Court from effectively carrying out its obligation to police the Bar.
D. The Right to Appeal
The final constitutional challenge made by petitioner and the Association is to the unappealability of Committee determinations.[14] It is alleged that the right to appeal Committee determinations is guaranteed by the due process clause of the Fourteenth Amendment to the United States Constitution and by the New Jersey Constitution. We find no support for a right to appeal here under either Constitution.[15]
*592 (1) The United States Constitution
The due process clause of the Fourteenth Amendment does not require states to provide litigants with a right to appeal adverse holdings by lower tribunals. Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 876, 31 L.Ed.2d 36 (1972); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956). In Lindsey and Griffin, the Supreme Court was addressing the issue of appeals from lower courts. In other cases, the Court has held that determinations by administrative agencies can constitutionally be made final and unreviewable in the courts. See Panama Canal Co. v. Grace Line, 356 U.S. 309, 317, 78 S.Ct. 752, 757, 2 L.Ed.2d 788 (1958); Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). See generally K. Davis, Administrative Law Treatise § 28.16 ("Action Committed by Law to Agency Discretion") (1958), updated in Administrative Law § 28.16 (1970 supp.) and Administrative Law of the Seventies § 28.16 (1976). Thus, we hold that our decision to make Committee determinations unreviewable in the courts does not violate the due process clause.[16]
(2) The New Jersey Constitution
Petitioner and the Association also claim that the New Jersey Constitution guarantees them a right of appeal from Committee determinations. They base this claim on the prerogative writ clause of the New Jersey Constitution, Art. VI, § V, par. 4, and on this Court's holding in Division 540 v. Mercer County Improvement Auth., 76 N.J. 245 (1978), requiring judicial review of compulsory arbitrations under the labor arbitration statute, N.J.S.A. 40:37A-96. We reject both arguments.[17]
*593 (a) The Prerogative Writ Provision
N.J.Const. (1947), Art. VI, § V, par. 4, provides:
Prerogative writs are superseded, and, in lieu thereof, review, hearing and relief shall be afforded in the Superior Court, on terms and in the manner provided by rules of the Supreme Court, as of right, except in criminal causes where such review shall be discretionary.
It is contended that an appeal in lieu of prerogative writs should lie "by right" from determinations of the Committees just as such appeals lie "by right" from determinations of legislatively created administrative agencies. We reject this contention on two grounds: first, we find no evidence that prerogative writs were ever used to review actions by judicially created agencies such as the Committees; and second, we find that permitting appeals from judicially created agencies to the Superior Court would be inconsistent with this Court's exclusive constitutional authority over the regulation of the Bar.
The prerogative writ clause of the 1947 New Jersey Constitution was intended to streamline and strengthen the traditional prerogative writs which were available in the pre-1947 Supreme Court. The provision first consolidates the old prerogative writs (certiorari, quo warranto, prohibitions, and mandamus) into one action which has come to be known as an action "in lieu of prerogative writs." Also, the provision removes the courts' traditional discretion not to hear the writs and makes the new action "in lieu of prerogative writs" available as of right, except in criminal cases. See Ward v. Keenan, 3 N.J. 298, 303-05 (1949); Jacobs, "Procedure in Lieu of Prerogative Writs," Rut.L.Rev. (special number) 34, 38 (1948).
For our purposes here, it is significant that Art. VI, § V, par. 4 did not change the substance of prerogative writ appeals when it created the new action in lieu of prerogative writs. *594 Actions in lieu of prerogative writs lie only in those cases where a remedy was available under a traditional prerogative writ. See Central R. Co. of N.J. v. Department of Public Utilities, 7 N.J. 247, 258 (1951); Jacobs, supra, Rut.L.Rev. (special number) at 34-35. Thus, in order for petitioner to establish that Art. VI, § V, par. 4 guarantees him a right of appeal from Committee determinations, he must prove that an appeal from such determinations would have been available under a traditional common law prerogative writ.
The only common law writ which could possibly have been utilized to appeal determinations by agencies such as the Committees would have been the writ of certiorari.[18] It has always been one of of the primary purposes of the writ of certiorari to give the courts the power to review the actions of legislatively created administrative agencies. McKenna v. New Jersey Highway Auth., 19 N.J. 270, 274-75 (1955); Trapahagen v. West Hoboken, 39 N.J.L. 232, 236 (Sup.Ct. 1877). See also The Queen v. Sheffield Railway, 11 Adolphus & Ellis 194 (Q.B. 1839). Petitioner and the Association maintain that the writ of certiorari would also have provided a basis for review of determinations of judicially created agencies such as the Committees, and that therefore this review is now guaranteed as of right by N.J. Const. (1947), Art. VI, § V, par. 4.
The first weakness in petitioner's position is that there is no evidence that the writ of certiorari was ever used to review *595 determinations of judicially created agencies such as the Committees. Under the 1947 Constitution this Court has established several agencies to oversee the Bar and administer the judicial system. Prior to 1947, however, the only "agencies" created by the courts were the Board of Bar Examiners and county committees established to review the "character and fitness" of bar applicants.[19]See 1938 Rules of the Supreme Court, Rule 2 and 10(e). We have been unable to find any case where certiorari was used to review determinations by the Board of Bar Examiners or by the county character committees,[20] and, for the reasons outlined below, conclude that the writ was not available for such review.
There are two explanations for the fact that certiorari was apparently never utilized to review actions of the pre-1947 judicial "agencies." For one thing, the Board of Bar Examiners and the county ethics committees were primarily advisory bodies which helped the Supreme Court screen bar applicants for the Governor's approval.[21] There was thus not the same need to provide certiorari review of their determinations as there was for administrative agencies such as the Workers' Compensation Board which actually made final adjudications of disputes. Also, and more importantly, certiorari review of judicial agencies was not called for because the basic purpose for constitutionally protected certiorari review was to make sure that the Legislature did not make unreviewable in the courts actions of *596 administrative agencies. See Fischer v. Township of Bedminster, 5 N.J. 534, 540 (1950) ("The inherent power of superintendence of inferior tribunals was secured to the Supreme Court by the Constitution of 1844; and it was not within the competency of the Legislature to impair the substance of certiorari as a prerogative writ within the exclusive domain of that court"); Trapahagen v. Township of West Hoboken, 39 N.J.L. 232, 235-36 (Sup.Ct. 1877). Thus, we conclude that the pre-1947 writ of certiorari was not available for review of judicial as opposed to ordinary administrative agencies, and that therefore N.J. Const. (1947), Art. VI, § V, par. 4, does not mandate that an action in lieu of prerogative writs lie by right from the determinations of judicially created agencies such as the Committees.
The second and more important weakness in petitioner's claim is that such a right of appeal would be inconsistent with our plenary authority to regulate the Bar granted by N.J.Const. (1947), Art. VI, § II, par. 3. Our Constitution provides that actions in lieu of prerogative writs must be brought in the Superior Court. If petitioner's interpretation is correct, then there would have to be appeals as of right to the Superior Court not only from the Committees but also from the other agencies created by this Court to regulate the Bar such as the Disciplinary Review Board. Providing such appeals, however, would result in a reinstatement of the pre-1947 procedure for disciplining attorneys wherein the old Supreme Court heard appeals from county ethics committees established by the Legislature. One of the primary purposes of N.J.Const. (1947), Art. VI, § II, par. 3, was to take all of these matters away from the intermediate courts and vest exclusive authority over the regulation of the Bar in the State's highest court. See State v. Rush, 46 N.J. 399, 411 (1966). It is especially significant for our purposes here that a central element in this Court's constitutional authority over the Bar and the judicial system is our control over the procedures under which these institutions are regulated. See, e.g., Toft v. Ketchum, 18 N.J. 280, 284 (1955). An interpretation of the prerogative writ clause that would undermine *597 this control is particularly inconsistent with the purposes of N.J.Const. (1947), Art. VI, § II, par. 3. The framers of the prerogative writ clause could not have intended that clause, whose primary purpose was to guarantee appeals as of right from legislatively created administrative agencies, Jacobs, supra, Rut.L.Rev. (special number) at 34, to have such an interpretation.[22] Thus, we hold that actions in lieu of prerogative writs were not intended to lie from agencies established by this Court pursuant to its Art. VI, § II, par. 3 power to regulate the Bar.
(b) Division 540 v. Mercer County Improvement Auth.
In Division 540 v. Mercer County Improvement Auth., 76 N.J. 245 (1978), we held that judicial review is available from an arbitration under New Jersey's labor arbitration statute, N.J.S.A. 40:37A-96, even though the statute itself does not provide for such review. The Court, per Justice Sullivan, held:
Although N.J.S.A. 40:37A-96 has no express requirement for judicial review of the arbitrator's award, we conclude that such review must be available if the statutory provision is to be sustained. The statute subjects the development Authority to compulsory and binding arbitration. Because it is compulsory, principles of fairness, perhaps even due process, require that judicial review be available to ensure that the award is not arbitrary or capricious and that the arbitrator has not abused the power and authority delegated to him. [Id. at 253].
The Association argues that the same "principles of fairness' require judicial review of compulsory arbitrations by the Committees. We disagree.
The holding of Division 540 is inapplicable to arbitrations conducted pursuant to our constitutional authority to regulate the Bar.[23] The same rationale that attorneys are subject to *598 extensive regulation by this court[24] which justifies compulsory arbitration of their fee disputes also justifies eliminating appeals from such arbitration despite the general "principles of fairness" enunciated in Division 540. We restate that if appeals as of right from the Committees were taken to the Superior Court, as petitioner and the Association urge, such appeals would greatly undermine this Court's exclusive jurisdiction over the regulation of the Bar.
III.
POLICY JUSTIFICATIONS FOR THE PRESENT R.1:20A SCHEME
Petitioner and the Association isolate two aspects of the present R.1:20A arbitration scheme which they find particularly objectionable.[25] First, they maintain that the compulsory nature of this scheme for lawyers is both unnecessary and unwise. On this we wholly disagree. Second, they contend that even if a right to appeal from the Committees is not constitutionally mandated, some right to appeal should be provided as a matter of good public policy. Although we decline to permit any appeals from determinations by the Committees on the merits of particular cases, we do recognize the desirability of providing a limited right to appeal on procedural grounds.
*599 A. The Compulsory Nature of R.1:20A
The Association maintains that it is unnecessary for R.1:20A arbitration to be compulsory for attorneys because the courts, particularly the equity courts, provide clients with an adequate forum in which to settle their grievances over attorney fees. We disagree. We concur fully with the findings of a 1974 Report by the American Bar Association that forcing clients to go to court to resolve attorney fee disputes places a heavy burden on the clients. ABA, Report of the Special Committee on Resolution of Fee Disputes 2-4 (1974) ("Report"). Clients, especially those of limited income, often find it very difficult to procure another attorney to represent them in fee disputes. Also, if a client were forced to give the attorney a retainer that eventually proved to have been unreasonably high, the client might not be able to afford the delay of another trial before being reimbursed. As the ABA Report concluded, imposing these burdens on clients causes "immeasurable" harm to the relationship between the Bar and the public. Id. at 3.
The Association also contends that even if some form of arbitration is necessary for fee disputes, it need not be compulsory because attorneys will usually consent to participation in a fair arbitration process. The record wholly disproves this contention. According to the Report, national surveys demonstrate that a significant and growing number of attorneys refuse to arbitrate their fee disputes. Id. at 4. Some refuse because without arbitration the client is at a serious disadvantage. Referring to the problems mentioned above which clients face in fee disputes, the Report notes: "In view of these tremendous practical obstacles facing the dissatisfied client, it is hardly surprising that the less conscientious lawyer usually refuses to consent to binding arbitration. By the simple act of declining to submit to arbitration, this attorney can thwart the organized Bar's jurisdiction to consider the dispute and to implement a fair resolution." Id. at 2-3.
*600 Finally, the Association contends that compulsory arbitration has disadvantages which outweigh any gains to be had from it in protecting clients. It relies upon the conclusion of the ABA Report that although some form of fee arbitration is desirable, compulsory arbitration is not a good idea. Id. at 4. We find the Report's reasons for rejecting compulsory arbitration unpersuasive.
The ABA Report cites two principal problems with a compulsory arbitration scheme: that it would be too controversial to ever be enacted, and that it would in essence be treating lawyers as "second class citizens." Id. The first problem is, of course, moot in New Jersey after our promulgation of R.1:20A. We see little merit in the ABA's second objection to compulsory arbitration. Lawyers have many rights and privileges as members of the New Jersey Bar and we find no difficulty in imposing a concomitant responsibility upon them to submit to arbitration of fee disputes when such arbitration is necessary to maintain public confidence in the Bar as a whole. Further, as discussed infra, we find the R.1:20A arbitration scheme to be fair to both clients and lawyers. We conclude, therefore, that the ABA Report's strong arguments for having attorney-client disputes arbitrated support the establishment of a compulsory arbitration scheme despite the ABA's own reservations about such a scheme.[26]
Our commitment to the Committees as presently constituted is buttressed by the fact that the agencies are effectively fulfilling their function. We note first that there is no evidence that the compulsory arbitration scheme in practice is causing *601 significant problems for lawyers.[27] Further, and more importantly, we find that the Committees have fairly and expeditiously adjudicated attorney-client fee disputes which would otherwise have either resulted in protracted litigation or in disgruntled clients giving up their claims.[28] Thus, we enthusiastically reaffirm our commitment to the compulsory arbitration scheme established by R.1:20A.
B. Appeals from the Committees
Petitioner and the Association maintain that it is both unfair to lawyers and bad judicial policy for there to be no appeals permitted from Committee determinations. Some right to appeal, it is argued, is necessary in order to assure lawyers that compulsory arbitration under R.1:20A will always be fair. At least with regard to appeals from Committee determinations on the merits, we find petitioner's concerns far outweighed by the advantages of having fee disputes settled expeditiously and finally at the Committee level. We do, however, recognize the desirability of providing a limited right to appeal if certain fundamental procedural protections are not afforded by a Committee.
The wisdom of denying appeals on the merits from Committee decisions necessarily must depend on one's view of the importance of public confidence in the lawyer-client relationship. If it is true and we believe it is that public confidence in the judicial system is as important as the excellence of the system *602 itself, and if it is also true as we believe it is that a substantial factor that erodes public confidence is fee disputes, then any equitable method of resolving those in a way that is clearly fair to the client should be adopted. The client's position in fee disputes is one of vulnerability from the beginning to the end: the lawyer has superior knowledge, usually superior bargaining power in arriving at the initial fee agreement, and, in any event, the ability to refuse the representation if not satisfied with its terms. If and when a dispute develops, a system that requires a client to hire another lawyer for trial and perhaps appeal on the fee dispute increases the client's initial vulnerability by significantly weakening his negotiating power to resolve the fee dispute. The client perceives, correctly, that the lawyer is part of the system, and when added to his dissatisfaction with his experience with that lawyer, the system offers him a remedy that, to him, promises not to solve his problem but only to compound it, dissatisfaction turns into despair and resentment. The least we owe to the public is a swift, fair and inexpensive method of resolving fee disputes. This may not end the dissatisfaction of some with the Bar and with the judicial system, but, at the very least, it will minimize the extent of such dissatisfaction. Further, it is important to assure the public that this Court, which has the ultimate power over the practice of law, will take an active role in making certain that clients are treated fairly in attorney-client disputes.
Besides helping to sustain public confidence in the Bar, the finality of Committee determinations also protects clients who can ill afford the time and expense of defending a Committee judgment on appeal. As we noted in section IIIA, supra, one of our primary concerns in promulgating R.1:20A was that clients should not be forced to incur such expenses in fee disputes.
Finally, we find unpersuasive the position of petitioner and the Association that the unappealability of Committee determinations is unfair to lawyers. If that is unfair, it is at least *603 equally unfair, for the client similarly has no appellate right. Further, when it is noted that Committee arbitration panels must consist of a majority of lawyers, it is difficult to see how such a system can be unfair to lawyers. Upon analysis, the claim that lawyers are treated as "second class citizens" is really not being seriously pursued, but rather the underlying claim is that lack of an appellate review renders the system less certain, in the aggregate, to yield just results. With that proposition taken in the abstract we have no argument, for appellate review is almost as essential a part of our notion of justice as is the trial itself. But just as in conventional arbitration proceedings, so here, appellate review may sometimes give way either in part or in whole to other social goals. It is our judgment that the advantages of swift, inexpensive proceedings outweigh by far any greater likelihood of just results achieved by allowing appellate proceedings. The loss of public confidence in the judicial system is too high a price to pay for some indeterminate improvement in the quality of fee arbitration determinations. We reaffirm, therefore, that appeals on the merits from Committee decisions will not be allowed.
In barring appeals on the merits, however, we do recognize that both lawyers and clients may need a limited right of appeal in order to protect them from any egregious procedural deprivation before a Committee. We are, therefore, requesting the Civil Practice Committee, after soliciting the views of all interested parties, to recommend an amendment granting a limited right of appeal to the Disciplinary Review Board (DRB). That right should be limited to the following or similar grounds: that a Committee member failed to disqualify himself or herself in a case where he or she would appear evidently partial toward one of the parties;[29] that the Committee failed substantially to comply with the procedural requirements of R.1:20A, e.g., by *604 denying a party the right to subpoena witnesses; or that there was actual fraud on the part of one or more Committee members.
Such limited appellate right will not create the problems outlined above for the following reasons. First, the extremely small number of complaints that have been lodged about Committee proceedings in the past, see note 28, supra, indicates that the Committees are run fairly and that consequently procedural appeals will be very rare. Second, we fully expect the DRB to handle any such appeals which may arise under R.1:20A after it is amended with the understanding that speedy resolution of fee disputes is an important goal of our judicial system. Third, and most important, appeals of this kind to the DRB will ordinarily not require clients to find a new lawyer or incur any of the other expenses which would have to be incurred in court.
IV.
CONCLUSION
The ultimate wisdom of the fee arbitration system depends on its operation in fact. The overwhelming proportion of lawyers are able to maintain satisfactory relationships with clients concerning fees. Where the relationship disintegrates over fee disputes, many lawyers will take the loss rather than sue. Fee arbitration is for very few, it is used only in those few instances when either a lawyer is dissatisfied with the amount received and is willing to sue for satisfaction, or the client claims he is called upon to pay or has already paid too much and wants to reduce the lawyer's claim or get some money back. Though the matters which come to fee arbitration represent a very small proportion of the total number of fee relationships, they are among the most visible matters to a public greatly concerned about how the judicial system deals with attorney-client disputes. Our success in establishing a fair fee arbitration system will do much to assure the public of the fairness of the judicial system as a whole, and thereby increase the public confidence that is so necessary for that system to operate effectively.
*605 Accordingly, we uphold the constitutionality and validity of R.1:20A. We further direct that the question of amending R.1:20A to provide a limited right of appeal in accordance with this opinion be referred to this Court's Civil Practice Committee.
SCHREIBER, J., concurring.
I join in the opinion of the Chief Justice except with respect to the stated policy generally limiting the scope of review of Fee Arbitration Committees to disqualification of a Committee member because of partiality, failure to comply with the procedural requirements of R. 1:20A, e.g., by denying the issuance of a subpoena compelling the attendance of witnesses or production of documents at a party's request, or actual fraud on the part of a Committee member.
My differences arise for two reasons. First, I believe that the subject matter of this exception is such that the Court should have the benefit of the thinking of the bar, the public and our Civil Practice Committee before determining the appropriate extent of review of decisions of Fee Arbitration Committees. Second, it seems to me that review is more deservedly warranted in certain situations other than those predicated on some "procedural grounds." Ante at 598. Thus, for example, if a decision were wholly without evidentiary support, I would opt for review of that decision, which as a matter of law could not be sustained. In any event I am of the opinion that, after benefiting from the input of the public and the bar, further consideration should be given to the entire matter.
For affirmance Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK 7.
For reversal None.
NOTES
[1] This paragraph provides:
The Supreme Court shall exercise appellate jurisdiction in the last resort in all causes provided by this Constitution.
[2] This paragraph provides:
The Supreme Court and the Appellate Division of the Superior Court may exercise such original jurisdiction as may be necessary to the complete determination of any cause on review.
[3] This paragraph provides:
The Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts. The Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted.
[4] Margow itself did not involve an "original jurisdiction" problem because there the complainant had first gone to the County Court, Probate Division, for redress. However, the Court's willingness in that case to bypass traditional standing requirements because it was acting under its Art. VI, § II, par. 3 authority supports the conclusion that this constitutional provision gives the Supreme Court unusually broad jurisdiction in this area.
[5] Another case that involves this Court's expansive authority under Art. VI, § II, par. 3 is In re Gaulkin, 69 N.J. 185 (1976). Gaulkin involved a challenge to the Court's determination that judges' spouses must refrain from political activity. The Court found it had the authority to hear the challenge originally under the quasi-legislative power granted it by Art. VI, § II, par. 3 to "formulate court rules and policy." Id. at 188. The Court in Gaulkin emphasized, however, that it was engaged in rule-making pursuant to Art. VI, § II, par. 3 and not in a traditional adjudication. Our legislative power is involved in this case as well, since we were asked to change R.1:20A as a matter of policy, regardless of its constitutionality.
[6] The Association also claims that compulsory fee arbitration is inconsistent with N.J.S.A. 2A:13-6 which guarantees lawyers the right to "commence and maintain an action for the recovery of reasonable fees." We disagree. First, the Legislature could not interfere with a legitimate exercise by this Court of its constitutional authority to regulate the Bar. Second, R.1:20A provides only a mechanism for determining what a "reasonable fee" is. The rule itself recognizes the attorney's right to sue in court for a fee once its reasonableness has been determined by a Committee. R.1:20A-3(a).
[7] Petitioner also contends that attorneys are guaranteed jury trials by the Seventh and Fourteenth Amendments to the United States Constitution. This contention is incorrect. The United States Supreme Court has specifically held that the Seventh Amendment's guarantee of a jury trial in civil cases is not incorporated into the Fourteenth Amendment and is therefore not applicable to the states. Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961 (1916). See Fisch v. Manger, 24 N.J. 66, 74-75 (1957).
[8] The Court in Lewis found as an alternative basis for exercising its jurisdiction the fact that the plaintiff alleged fraud on the part of his attorney.
[9] Unlike in Lewis, the court in Grimm did not have any alternative basis such as an allegation of fraud upon which to base its assertion of jurisdiction.
[10] Post-1947 cases have also recognized the powers of equity courts in this area. See, e.g., Cohen v. Cohen, 146 N.J. Super. 330, 336 (App.Div. 1977); Hughes v. Eisner, 8 N.J. Super. 351, 353 (Ch.Div. 1950).
[11] In Bolte itself, the court held that courts of equity could not adjudicate the reasonableness of fees on behalf of an attorney. Only a client could claim the protection of equity courts in fee disputes an attorney was required to seek his remedy at law. See also Elting v. Frieman, 89 N.J. Super. 433 (App.Div. 1965).
[12] In purely equitable matters, such as suits for injunctions, there is no right to a jury even if both parties want one. See Devlin, "Jury Trial of Complex Cases: English Practice at the Time of the Seventh Amendment," 80 Colum.L. Rev. 43 (1980); Note, "The Right to a Nonjury Trial," 74 Harv.L.Rev. 1176 (1961).
[13] For purposes of delimiting the attorney's right to a jury, it makes no difference that a Committee is substituted for the equity courts as the tribunal to which a client takes a fee dispute for resolution. Under the pre-1947 Constitution, the equity courts took upon themselves the obligation to oversee this aspect of attorney-client relations. Pursuant to our authority under the 1947 Constitution to regulate the Bar, we have also placed this responsibility in the Committees. A client continues to have the right, post-R.1:20A, to require the Chancery Division to adjudicate fee disputes, if he chooses not to invoke R.1:20A, or to allow an action at law to determine the outcome.
[14] R.1:20A-3(c) provides: "Appeal. No appeal from the determination of a Fee Arbitration Committee shall lie."
[15] The fact that Committee determinations are not appealable does not, of course, mean that the parties to a Committee adjudication have no recourse if the Committee violates their constitutional rights. If, for example, in reaching a decision, the Committee violates a party's constitutional rights by discriminating against a party on account of race, a collateral attack against the Committee, in either state or federal court, is always possible. See, e.g., Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974) (challenge brought in federal district court alleging racial discrimination in appointments to the Board of Education Nominating Panel).
[16] For these same reasons, we held in In re Logan, 70 N.J. 222 (1976), that the due process clause was not violated because there were no appeals from this Court's determinations in disciplinary matters. Id. at 228-29.
[17] The Association also cites Midler v. Heinowitz, 10 N.J. 123 (1952), for the proposition that the New Jersey Constitution guarantees litigants "one appeal as of right to a court of general appellate jurisdiction." Id. at 129. Midler, however, dealt only with constitutionally authorized appeals from the lower courts to the Appellate Division. See N.J.Const. (1947), Art. VI, § V, par. 2. Neither that constitutional provision nor the Midler opinion purports to create a general right to appeal in New Jersey from all non-judicial entities.
[18] Certiorari was used by the pre-1947 Supreme Court to review the actions of inferior tribunals such as administrative agencies. McKenna v. New Jersey Highway Auth., 19 N.J. 270, 274-75 (1955). The other prerogative writs, mandamus, prohibition, or quo warranto, were wholly inapplicable to reviewing agency determinations. Mandamus was a specific writ used for requiring government officials to carry out required ministerial duties. Id. at 275-76. Quo warranto was used only for challenging the right of an individual to hold a public office. New Jersey State Lodge-Fraternal Order of Police v. Aaron, 39 N.J. Super. 423, 427 (App.Div. 1956). Prohibition was the traditional writ used to block proceedings where a tribunal was acting "manifestly beyond its jurisdiction." Alexander v. Crollott, 199 U.S. 580, 580, 26 S.Ct. 161, 161, 50 L.Ed. 317 (1905).
[19] The wide-ranging disciplinary functions which this Court now vests in the District Ethics Committees and the Disciplinary Review Board were, prior to 1947, vested in the Supreme Court and county ethics committees by the Legislature. See The Practice Acts, N.J.S.A. 2:20 thru 2:23 (repealed).
[20] Neither petitioner nor the Association cite any such cases. At oral argument, the Association stated that they could find no cases where a prerogative writ was used to review determinations of judicially created agencies.
[21] Under the Practice Acts, it was the Governor who actually licensed attorneys, upon the recommendation of the Supreme Court. N.J.S.A. 2:21 (repealed).
[22] The inappropriateness of having Committee or Disciplinary Review Board decisions appealed to the Superior Court is further demonstrated by the fact that this Court has labeled these committees "agents" of the Supreme Court. In re Logan, 70 N.J. 222, 225 (1976). See also Toft v. Ketchum, 18 N.J. 280, 284 (1955).
[23] In Kearny PBA Local # 21 v. Kearny, 81 N.J. 208 (1979), Justice Pashman suggested that the holding of Division 540 can be limited to the special kind of "interest" arbitration involved in that case. Id. at 229 (Pashman, J., concurring). In Division 540, the arbitrators were empowered to create the terms of a labor contract. Justice Pashman would not extend the reach of Division 540 to the more common "grievance" arbitrations, such as were involved in Kearny and in the instant case, where arbitrators are empowered to adjudicate only disputes between the parties before them. Id.
[24] See action IIB, supra.
[25] The claims at this point are addressed to the Court's power to change R.1:20A. They question the wisdom of the Rule, not its legality.
[26] As a substitute for compulsory arbitration, the ABA suggests a complex scheme in which an arbitration committee represents in court clients with legitimate claims against attorneys who refuse to submit to arbitration. Report at 4-6. Four states, Maine, Alaska, Massachusetts and California, have adopted arbitration schemes based on this ABA Model. Attorney General's brief at 6-8. We see no need to change to such a cumbersome technique in light of our findings that compulsory arbitration is necessary and our findings, infra, that the present scheme has been working well.
[27] At oral argument, the Association conceded this point but maintained that it still objected to R.1:20A on "principle" because it infringes upon attorneys' constitutional rights.
[28] Since their inception in April 1978, approximately 1,500 requests for arbitration have been filed with the Committees. In only about a dozen of these cases has the Administrative Office of the Courts received any complaints about the Committees' operations. All the evidence suggests that the committees are performing a valuable service in expeditiously resolving fee disputes between attorneys and clients.
[29] For a discussion of the problems which arise when Supreme Court Justices have to decide whether or not to recuse themselves, see "Recusal and Justice," 105 N.J.L.J. 476 (1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261555/ | 285 Pa. Superior Ct. 571 (1981)
428 A.2d 192
COMMONWEALTH of Pennsylvania,
v.
Galen CONRAD, Appellant.
Superior Court of Pennsylvania.
Submitted March 6, 1980.
Filed April 3, 1981.
Petition for Allowance of Appeal Denied August 12, 1981.
*572 Harold F. Woelfel, Jr., Selinsgrove, for appellant.
Thomas C. Clark, District Attorney, Middleburg, for Commonwealth, appellee.
Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
MONTGOMERY, Judge:
The Appellant, Galen Conrad, was convicted after a jury trial on charges of involuntary manslaughter[1] and engaging *573 in a speed contest.[2] Following the denial of post-trial motions, and sentencing, the Appellant filed the instant direct appeal raising several allegations of error. After a thorough review, we have concluded that there is merit in the Appellant's claim that there was insufficient evidence to support his conviction of involuntary manslaughter, and we will reverse that conviction.
The test for sufficiency of evidence is whether accepting as true all of the evidence and all reasonable inferences deductible therefrom, upon which the jury could have based its verdict, the evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976). In evaluating the sufficiency of the evidence, we accept all of the evidence favorable to the Commonwealth as true, and resolve all disputed facts in favor of the Commonwealth. Commonwealth v. Ingenfritz, supra.
The record, read in that light, shows that on May 3, 1975, the Appellant was driving a brown Plymouth automobile on U.S. Route 104, in a southerly direction from Middleburg, in Snyder County, towards Shade Mountain. One Roger Lee Heintzelman, while driving a red Pontiac, approached from the rear and began "tailgating" the Appellant's automobile. The Appellant increased his speed and Heintzelman also increased his speed, over some distance, but Heintzelman eventually overtook and passed the Appellant, and pulled away from the Appellant, increasing the distance between them. Approximately one-half mile after the Appellant's car was passed by Heintzelman, the Appellant turned his vehicle around and returned in a northerly direction on Route 104 toward Middleburg. After proceeding some distance in the southerly direction after he had passed the Appellant, Heintzelman apparently also decided to turn around and head back in a northerly direction towards *574 Middleburg. He did so at a high rate of speed. When Heintzelman eventually caught up with the Appellant's vehicle, close to Middleburg, Heintzelman again attempted to pass on the two lane highway. When he veered into the left lane, Heintzelman saw another vehicle in that lane heading in a southerly direction. He pulled back into the right lane, behind the Appellant's car, but was unable to brake his vehicle sufficiently to avoid a collision with the rear end of the Appellant's car. The Appellant's car spun out of control as a result, and collided with the vehicle approaching from the southerly direction on the other side of the road. Appellant's young daughter was a passenger in his car at the time of the collision and tragically lost her life as a result of the accident.
It is the theory of the Commonwealth that the Appellant was engaging in a speed contest, in violation of the Motor Vehicle Code, at the time of the collision, and was criminally responsible for the death of his daughter which resulted from that conduct.
In order to sustain a conviction for involuntary manslaughter, there must be evidence of a disregard for human life or an indifference by the Defendant to the consequences of his actions. Commonwealth v. Busler, 445 Pa. 359, 284 A.2d 783 (1971); Commonwealth v. Kaulback, 256 Pa.Super. 13, 389 A.2d 152 (1978); Commonwealth v. Greer, 232 Pa.Super. 448, 335 A.2d 770 (1975); Commonwealth v. Clowser, 212 Pa.Super. 208, 239 A.2d 870 (1968). In determining the presence of such disregard or indifference, we must look to the violation itself together with all of the surrounding circumstances. Commonwealth v. Busler, supra; Commonwealth v. Clowser, supra. It is the position of the defense while there may have been evidence to show that the Appellant was engaged in a contest of speed several minutes prior to the time of the collision, when Heintzelman first tailgated the Appellant and then passed him as the cars proceeded in a southerly direction, there was insufficient evidence to prove that the Appellant was engaged in any violation of the Vehicle Code, specifically including a speed contest, as he traveled in a northerly direction at the time of *575 the accident several minutes later. We agree with that contention.
In support of its position that sufficient evidence was produced to indicate that Appellant was engaged in a speed contest on his return trip to Middleburg, the Commonwealth relies upon the evidence offered by witnesses Ronald Schon and Anna Fogel. A review of the testimony of Ronald Schon reveals that on the date of the accident he was walking along Route 104 in a southerly direction, trying to hitchhike a ride. He saw and described the conduct of the two vehicles as they proceeded past him in the southerly direction, from Middleburg toward Shade Mountain. He then was asked to describe his observation of the two cars as they passed him a few minutes later going in the northerly direction. He first noticed the Appellant's brown car going in a northerly direction at a speed he described as "fast but not extremely fast". He estimated the speed to be approximately 60 to 65 miles per hour. A few seconds later, he noticed the red Heintzelman vehicle following in the same northerly direction. When he first noticed the two cars the red car was approximately 400 feet behind the Appellant's vehicle, but closing the gap between them quickly. The Heintzelman vehicle crossed the center line of the road as it came around a corner and he estimated its speed at between 70 and 75 miles an hour. He watched the cars as they went past and it appeared to him that the Appellant's car was slowing down as it approached the town. He saw the Heintzelman car moving very quickly up towards the rear of the Appellant's car, and then start to pass. The witness stated he next observed the Heintzelman car swerve back behind the Appellant's car, saw the brake lights come on and heard the sound of brakes being applied. Schon then lost sight of the vehicles because of the elevation of the road, but almost immediately heard a crash. Reading all of this testimony in a light most favorable to the Commonwealth, we do not find sufficient evidence upon which one could base the conclusion that the Appellant was engaged in a speed contest with Heintzelman just before the unfortunate accident in which the Appellant's daughter was killed.
*576 We then turn to the evidence offered by Anna Fogel, as well as the testimony of her husband. Mrs. Fogel testified that she observed the two cars proceeding north as they passed her home on Route 104. In testifying as to their speed, she could only state that "they were really going". Just as they passed her house, proceeding in a northerly direction, she said that the cars were about three car lengths apart, with the Appellant's vehicle in front. She saw that the Heintzelman vehicle was gaining rapidly on the Appellant's vehicle. After they passed her house, she watched them proceed down the road and she saw the lights appear on the back of the Heintzelman car, presumably the brake lights. A couple of seconds after that she heard the sounds of a collision and saw dust and smoke. It is further noted that both Anna Fogel and her husband testified that they believed that both vehicles may have been going at high speed because they heard the "roar" of engines as the cars passed. Our review of this evidence again leads us to the conclusion that it was insufficient to establish that the Appellant was engaged in a speed contest with Heintzelman, as both cars proceeded in a northerly direction on Route 104, just prior to the collision. The combined testimony of the Fogels and Schon lead to the firm conclusion that the Appellant was decreasing his speed as he passed by them, but that Heintzelman increased his and attempted to pass the Appellant at high speed.
In our review of the sufficiency of the evidence issue, we should also summarize the testimony relevant to this issue presented by other witnesses. Roger Heintzelman testified essentially that after he turned around at the top of Shade Mountain and began his return trip in a northerly direction towards Middleburg, he did not feel or believe that he was still engaged in any speed contest with the Appellant. He did not offer any testimony which would lead to the conclusion that the Appellant's conduct at any time on the return trip to Middleburg, prior to the collision, would have suggested a contest between the two drivers. Both the Appellant and his passenger testified that they were not even aware that Heintzelman was behind them on the return trip. *577 While there was some evidence that the Appellant was driving five to ten miles per hour over the speed limit as he drove in a northerly direction on Route 104 to Middleburg, it is clear from all of the evidence that he was slowing his car to the legal limit, or below, in compliance with a reduction in the posted speed limit, some distance prior to the point of collision. The driver of the third vehicle involved in the accident stated that there was nothing irregular about the Appellant's progress that gave that witness any reason for concern prior to the collision.
Thus, while the Appellant was shown to have engaged in a speed contest approximately ten minutes before the collision, as he headed in a southerly direction away from town, there is a complete absence of evidence showing reckless or grossly negligent conduct, or the violation of any Motor Vehicle Code provision just prior to the accident on his return trip to town. In Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961), the Supreme Court pointed out that two essential separate elements of the crime of involuntary manslaughter include reckless conduct on the part of the accused and a direct causal relationship between that reckless conduct and the ensuing death. See also Commonwealth v. Clowser, supra. The record in the instant case shows a lack of such reckless conduct on the part of the Appellant just prior to and at the time of the collision. We have reviewed the decisions in the cases of Commonwealth v. Honeycutt, 227 Pa.Super. 265, 323 A.2d 775 (1974), Commonwealth v. Hartle, 200 Pa.Super. 318, 188 A.2d 798 (1963), and Commonwealth v. Root, 191 Pa.Super. 238, 156 A.2d 895 (1959), three cases involving manslaughter convictions arising out of deaths resulting from hazardous speed contests. In each of those cases, in which convictions were affirmed, there was evidence presented showing a continuity of reckless conduct on the part of each Defendant sufficient to create proof beyond a reasonable doubt that such reckless conduct continued up to the actual point of collision wherein death resulted, and that a causal connection existed between such conduct and the deaths. We find an absence of such evidence in this case.
*578 Based upon our conclusion that the evidence was insufficient, we cannot affirm the Appellant's conviction on the manslaughter charge in this case. We note that no issue is raised by the Appellant regarding the sufficiency of evidence to sustain his conviction on the charged violation of the Motor Vehicle Code. The only remaining question is whether we should remand for resentencing. In Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972), this Court held that where the validity of a conviction on one count may have influenced the sentence on a remaining count or counts, all sentences should be vacated and the case remanded for resentencing on the valid count or counts, without consideration of the invalid one. Our Court has refused to remand a case for resentencing where the same would be a mere procedural exercise. See Commonwealth v. Grant, 235 Pa.Super. 357, 341 A.2d 511 (1975). Here, where the Appellant was sentenced to identical three to twenty-three month jail sentences on each charge, with an absence of any record of any other criminal conviction up to date of sentencing, we cannot be certain that the Appellant's convictions on multiple charges may not have influenced the sentencing court in the severity of sentence imposed. Thus, we believe it appropriate to vacate Appellant's sentence on the violation of the Motor Vehicle Code, and remand for resentencing on that charge alone.
We note that the remand for resentencing is appropriate, based upon our prior holdings cited above, only as a result of the reversal on one of the charges against the Appellant. This action should not be construed as an excusal of Appellant's failure to raise his claim of an improper sentence on the Vehicle Code violation in the lower court. See Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Boone, 367 Pa. 168, 354 A.2d 898 (1978). In view of the remand however, it is appropriate that we briefly address, and specifically reject the Appellant's claim that his sentence on the conviction for engaging in a speed contest was illegal. He argues that the Motor Vehicle Code of 1976 provision effective at the time of his sentencing, as *579 set forth in 75 Pa.C.S.A. § 3367 did not provide for imprisonment for engaging in a speed contest. Appellant's sentencing was within the permissible sentencing limits established in the 1959 Motor Vehicle Code in effect at the time of the alleged criminal act, as well as at the time of Appellant's conviction. While 75 Pa.C.S.A. § 3367 was effective on July 1, 1977, prior to Appellant's sentencing on October 16, 1978, the Motor Vehicle Code of 1976, of which that section was a part, contained the following Savings Provision, in Section 4, which clearly made the sentences provided in the former Act of 1959 applicable:
The provisions of Title 75 of the Pennsylvania Consolidated Statutes as added by this act shall not affect any act done, liability incurred, or right accrued, or vested, or affect any suit or prosecution pending or to be instituted to enforce any right or penalty, or punish any offense, under the authority of any statute repealed by this act.
Therefore, the lower court may properly sentence the Appellant pursuant to the provisions of the 1959 Act.
The Appellant's conviction and judgment of sentence on the manslaughter charge are reversed and vacated. The judgment of sentence for engaging in a speed contest is vacated, and the case remanded to the lower court for resentencing on that charge alone.
NOTES
[1] A violation of the Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 2504.
[2] A violation of the 1959 Vehicle Code, Act of April 29, 1959, P.L. 58, § 1041 [1040], added January 8, 1960, P.L. (1959) 2118, § 3, 75 P.S. § 1041. Such conduct is now covered by the 1976 Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81, § 1, effective July 1, 1977, 75 Pa.C.S.A. § 3367. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261561/ | 861 F.Supp. 199 (1994)
Kenneth GASTON, Plaintiff,
v.
Thomas COUGHLIN, III, Donald Selsky, Lt. Grant, Lt. LeBaron, Hans Walker, Frank Irvin, Edward Dann, and John Doe, Defendants.
No. 91-CV-5788.
United States District Court, W.D. New York.
August 12, 1994.
*200 *201 Kenneth Gaston, pro se.
G. Oliver Koppell, Atty. Gen. for the State of N.Y., Andrew Lipkind, Asst. Atty. Gen., of Counsel, Buffalo, NY, for defendants.
DECISION AND ORDER
FOSCHIO, United States Magistrate Judge.
JURISDICTION
The parties executed a consent to proceed before the undersigned on December 12, 1991.
BACKGROUND
Plaintiff, Kenneth Gaston, filed a complaint against Defendants Coughlin, Selsky, Grant, and LeBaron alleging causes of action under 42 U.S.C. § 1983 on August 27, 1991. *202 Coughlin is the Commissioner of the Department of Correctional Services; Selsky is the Director of the Special Housing/Inmate Disciplinary Program; and, Grant and LeBaron were the hearing officers at the Attica Correctional Facility ("Attica") who conducted Plaintiff's hearings based on the issue in this action.
On January 22, 1992, Plaintiff filed an amended complaint with leave of the court, and no objection from Defendants. The amended complaint added as Defendants Hans Walker, the Superintendent of Auburn Correctional Facility ("Auburn"), Frank Irvin, currently the Superintendent of Wende Correctional Facility ("Wende"), but formerly the First Deputy Superintendent at Auburn at the time of the incident at issue in this case, Edward Dann, the Deputy Superintendent for Security at Auburn, and John Doe, a confidential informant, incarcerated at Auburn. Plaintiff has alleged causes of action under 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and 42 U.S.C. § 1986. Specifically, Plaintiff claims that he was deprived of due process and equal protection under the Fourteenth Amendment, and subjected to cruel and unusual punishment in violation of the Eighth Amendment. Plaintiff also alleges a conspiracy by Defendants to deprive him of his constitutional rights.
Following extensive discovery, on November 16, 1992, Plaintiff filed a motion for partial summary judgment as to the liability of Defendants LeBaron, Grant, and Selsky for their alleged failure to independently assess the reliability of the confidential informant.
On March 8, 1993, Defendants filed a motion for summary judgment to dismiss the amended complaint on the basis that no genuine issue of material fact remained, and that all Defendants were entitled to judgment as a matter of law.
For the reasons as set forth below, Plaintiff's motion for partial summary judgment is DENIED. Defendants' motion for summary judgment is GRANTED.
FACTS
On May 19, 1990, a "food strike" occurred at the Auburn Correctional Facility. (G. 5).[1] Plaintiff, then incarcerated at Auburn, was, at that time, the Vice President of the Inmate Liaison Committee ("ILC"). (G. 6). Following the "food strike," Plaintiff was asked to attend a meeting between members of the ILC, Defendants Dann and Irvin, and Captain Dumas who is not a party to this lawsuit. (G. 6). During the meeting, Plaintiff told Irvin that he was unaware of the food strike as he had remained in his cell all day, and, as such, he was not aware of any reasons behind the strike. (G. 8-9). Irvin then directed Plaintiff and other ILC members to survey the inmate population to determine the reasons for the strike. (G. 11).
On May 21, 1990, during a meeting between Plaintiff, other ILC members, and a corrections sergeant, the results of the survey were disclosed. (G. 13). Shortly thereafter, Plaintiff claims that he, along with the ILC President, an inmate Jones, were confined to their cell, and then escorted to the Administration Building where they were strip-searched, handcuffed, and transported to Attica. (G. 14-16). Both Plaintiff and Jones were black; the other white and Hispanic members of the ILC were not transferred to Attica. (G. 17-18).
Upon his arrival at Attica, Plaintiff was taken to the Special Housing Unit ("SHU"), where he was again strip-searched, handcuffed, and then escorted to a cell. (G. 15). On May 23, 1990, Plaintiff was served with a misbehavior report charging that Plaintiff had led the inmate food strike. (G. 16). This report was based upon information received from a confidential inmate informant. (G. 16).
Utilizing an employee assistant, Plaintiff requested that a number of witnesses be contacted, that a copy of the videotape of the incident in the messhall at Auburn on May 19, 1990 be obtained, and that Plaintiff be provided with a copy of the confidential information. See Plaintiff's Amended Complaint, at p. 5, ¶ 26. The employee assistant informed *203 Plaintiff that one witness agreed to testify, but that his other requested witnesses were either transferred or not incarcerated at Auburn, and, therefore, unavailable to testify. Plaintiff's Amended Complaint, at p. 5, ¶ 27. Plaintiff's requests for the videotape and a copy of the confidential information were denied. Plaintiff's Amended Complaint, at p. 5-6, ¶¶ 28-29.
A hearing was held on May 25, 1990 where Defendant LeBaron presided as the Hearing Officer. Plaintiff's Amended Complaint, at p. 6, ¶ 30. LeBaron denied Plaintiff's requests for three inmate witnesses as not relevant, and denied, without explanation, Plaintiff's requests for Dann and Irvin to act as witnesses. Plaintiff's Amended Complaint, at p. 6, ¶ 32. LeBaron also denied Plaintiff's request to view the videotape, and held that the confidential information received from the informant could not be disclosed. Plaintiff's Amended Complaint, at p. 6, ¶¶ 33-34. Following the hearing, LeBaron imposed a penalty of 730 days confinement in the SHU. See Affidavit of Patricia Priestley, Attica Inmate Records Coordinator, Exhibit K. Plaintiff filed an administrative appeal with Defendant Selsky's office on June 7, 1990. Affidavit of Patricia Priestley, Exhibit L. Selsky reversed LeBaron's decision, and ordered that a new hearing be held. Affidavit of Patricia Priestley, Exhibits M-O.
A new employee assistant was assigned to Plaintiff to investigate the report. Plaintiff's Amended Complaint, at p. 7, ¶¶ 40-41. However, the assistant did not return to advise Plaintiff of her investigation results prior to the new hearing scheduled for August 24, 1990. Plaintiff's Amended Complaint, at p. 8, ¶ 41. Defendant Grant, the Hearing Officer at the new hearing, offered the investigation results to Plaintiff at the hearing, however, Plaintiff refused to accept the tendered results. Plaintiff's Amended Complaint, at p. 8, ¶ 44; Affidavit of Patricia Priestley, Exhibit W, Transcript of Second Hearing, at pp. 3-4. Grant then adjourned the hearing. Exhibit W, Transcript of Second Hearing, at p. 5. The investigation results were delivered to Plaintiff in his cell by the employee assistant a few days later, however, Plaintiff again did not accept the results. Plaintiff's Amended Complaint, at pp. 8-9, ¶ 46.
When the hearing reconvened, Grant allowed testimony from two inmates, however he denied Plaintiff's request for testimony from a third inmate as irrelevant. Affidavit of Patricia Priestley, Exhibit W, Transcript of Second Hearing, at pp. 9, 10, 20; Plaintiff's Amended Complaint, at p. 9, ¶ 47. Defendant Irvin also testified at the hearing, describing the incidents which took place on May 19, 1990, and stating that the confidential informant had disclosed, within one hour of the food strike, that ILC members had organized the strike with members of the Inmate Grievance Resolution Committee, and that Plaintiff had been the ringleader of the strike. Affidavit of Patricia Priestley, Exhibit W, Transcript of Second Hearing, at p. 13-14. Irvin further stated that the confidential informant's reliability had been established through various administrative sources, including himself, and that the informant had a history of providing such information to Irvin. Exhibit W, at p. 14. Testimony as to the reliability of the informant was also provided by Defendant Walker. Affidavit of Patricia Priestley, Exhibit X. Grant denied Plaintiff access to copies of the unusual incident reports of May 20 and 21, 1990 on the grounds that they were unavailable or irrelevant, and noted that Plaintiff, a messhall employee, had also been the ringleader of a workstoppage in another correctional facility. Exhibit W, at pp. 20-21. On September 5, 1990, Grant found Plaintiff guilty and imposed a penalty of 730 days confinement in the SHU, crediting the time already served since May 20, 1990. Affidavit of Patricia Priestley, Exhibits BB and CC.
Plaintiff appealed Grant's decision to Defendant Selsky, and, upon review, the penalty was reduced to 365 days confinement in the SHU, again giving Plaintiff credit for the time served since May 20, 1990. Affidavit of Patricia Priestley, Exhibit DD and GG.
Thereafter, Plaintiff brought an Article 78 proceeding, (N.Y.Civ.Prac.Law & R. § 7801 et seq. (McKinney 1990)), challenging the administrative hearing on the ground that he was denied the right to call one inmate as a witness, he was denied his request to produce *204 certain documents at the hearing, and that the hearing officer failed to make a firsthand assessment of the credibility and reliability of the confidential informant whose information was the basis of the initial misbehavior report. Affidavit of Andrew Lipkind, Esq., dated March 1, 1993, at p. 2, ¶ 4. After denying all Plaintiff's claims except for the failure to independently assess the confidential informant claim, Acting New York State Supreme Court Justice Mark H. Dadd (Wyoming County) transferred Plaintiff's Article 78 petition to the Appellate Division of the New York State Supreme Court, Fourth Department, for disposition as to whether the determination of the hearing officer was supported by substantial evidence. Affidavit of Andrew Lipkind, Esq., at p. 2, ¶ 5.
On April 24, 1992, the Appellate Division determined that the administrative record did not support a finding of guilt, and ordered the charges against Plaintiff to be expunged from his record. Affidavit of Andrew Lipkind, Esq., at p. 2, ¶ 6. At the appellate level, Plaintiff raised the issue that Defendant Selsky had violated his rights by permitting a rehearing on the initial charge following its administrative reversal. The Appellate Division found this contention to be without merit. Affidavit of Andrew Lipkind, Esq., at p. 3, ¶ 8.
At the time of the Appellate Division disposition, Plaintiff had completed his 365 day sentence in the SHU. During the time of Plaintiff's confinement to the SHU, Plaintiff claimed that he was subjected to unsanitary inhumane living conditions, and subjected to intense emotional anguish, including the attempted suicide of the inmate in the next cell. (G. 21-23, 27-28). As a result of his confinement, Plaintiff stated that he was forced to withdraw from his program as a graduate student in the American Studies Department of the State University of New York at Buffalo, that he sustained physical injuries as a result of the prison's failure to provide him with proper health care and dental hygiene, and that he suffered injury by being unable to participate in programs and services available to the general prison population. Plaintiff's Amended Complaint, at pp. 13-14, ¶¶ 73-76.
DISCUSSION
Summary judgment will be granted pursuant to Fed.R.Civ.P. 56 when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 2556, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). The party moving for summary judgment bears the burden of establishing the nonexistence of a genuine issue of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party's favor may be drawn, the moving party cannot obtain a summary judgment. Celotex, supra, 477 U.S. at 331, 106 S.Ct. at 2556.
The function of a district court in considering a summary judgment motion is not to resolve disputed issues of fact, but to determine whether there is a genuine issue to be tried. Rattner, supra, at 209. In assessing the record, including any affidavits, exhibits, and other submissions, the court is required to resolve all ambiguities and to draw all factual inferences in favor of the nonmoving party. Anderson, supra, 477 U.S. at 255, 106 S.Ct. at 2513; Rattner, supra, at 209.
Plaintiff has raised five causes of action: (1) a cause of action for conspiracy to deprive Plaintiff of his civil rights by Defendants Walker, Irvin, Dann, and John Doe (the confidential informant), pursuant to 42 U.S.C. §§ 1985(3) and 1986, (2) a cause of action for cruel and unusual punishment for the treatment and unsanitary conditions Plaintiff allegedly encountered in the Attica SHU, (3) a cause of action for discrimination based on Plaintiff's claim that he was transferred to Attica because of his race, (4) a cause of action for a violation of his due process rights based on the first disciplinary hearing conducted by Defendant LeBaron, and (5) a cause of action for a violation of his due process rights based on the second disciplinary hearing conducted by Defendant Grant. *205 Plaintiff seeks partial summary judgment on the fourth and fifth causes of action, i.e., the alleged violation of Plaintiff's due process rights during the administrative proceedings on the misbehavior reports filed against Plaintiff in regards to the May 19, 1990 food strike at Auburn. Plaintiff claims that there is no genuine issue of material fact, and that because the determination of the first disciplinary hearing was overturned by Defendant Selsky, and that the determination of the second disciplinary hearing was overturned by the Appellate Division, having ruled on Plaintiff's Article 78 petition, Plaintiff is entitled to partial summary judgment on this issue of liability. Defendants have filed a cross-motion for summary judgment, seeking to have the action dismissed in its entirety.
(1) Plaintiff's Fourth and Fifth Causes of Action
Plaintiff seeks partial summary judgment on his due process claims on the basis that the first hearing violated his due process rights and was administratively reversed, and that the result of the second disciplinary hearing was held by the Appellate Division not to be based on substantial evidence.
Pursuant to 42 U.S.C. § 1983, an individual may seek damages against any person who, under color of state law, subjects such individual to the deprivation of any rights, privileges, or immunities protected by the Constitution or laws of the United States. Plaintiff contends that his right to due process was violated at his first hearing for various reasons, including, among other contentions, that the misbehavior report was not based on substantial evidence, that he was denied the right to call witnesses, and that the hearing officer, Officer LeBaron, did not properly assess the reliability of the confidential informant, and used false information and evidence.
However, Officer LeBaron's determination of Plaintiff's guilt was reversed by Defendant Selsky after Plaintiff filed an administrative appeal. Defendants argue that the administrative reversal of the guilty determination following the disciplinary hearing cured any due process violations occurring at the hearing.
In Young v. Hoffman, 970 F.2d 1154 (2d Cir.1992), cert. denied, ___ U.S. ___, 114 S.Ct. 115, 126 L.Ed.2d 80 (1993), an inmate found guilty at a disciplinary hearing of violations of certain prison regulations later had the hearing decision reversed by the appeals officer because the original hearing officer had failed to allow the inmate to call witnesses on his behalf at the hearing. The incident at issue was then expunged from the inmate's record. The Second Circuit held that the administrative reversal of the decision to discipline the inmate cured any due process violation which occurred during the original disciplinary hearing when the hearing officer failed to allow the inmate to call witnesses. See Young, supra, at 1156. The court stated that it did not need to reach the issue as to whether the inmate had suffered a denial of due process at the original disciplinary hearing as, at the administrative appeal level, the inmate was afforded all of his due process rights. See Young, supra, at 1156 ("the administrative reversal constituted part of the due process protection [the inmate] received, and it cured any procedural defect that may have occurred"). See also Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990) (constitutional violation not actionable under Section 1983 when deprivation occurs unless and until the State fails to provide due process); Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981) ("procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property").
Unlike the plaintiff in Young, supra, however, Plaintiff was confined to the SHU during the pendency of his first appeal. In Walker v. Bates, 23 F.3d 652 (2d Cir.1994), the plaintiff, an inmate at the Southport Correctional Facility, was found guilty of two violations of prison rules.[2] The plaintiff was *206 sentenced to 120 days in the SHU and immediately began serving the sentence. The determination was reversed after administrative appeal, and the plaintiff was released from the SHU within two weeks of the reversal. The plaintiff brought a § 1983 action, alleging that his due process rights were violated when he was improperly denied the right to call witnesses at his hearing, and sought damages for the period of his detention in the SHU. The district court dismissed his claim on the ground that the administrative reversal cured the defect in the original hearing. The Second Circuit reversed, however, holding that "the rule is that once prison officials deprive an inmate of his constitutional procedural rights at a disciplinary hearing and the prisoner commences to serve a punitive sentence imposed at the conclusion of the hearing, the prison official responsible for the due process deprivation must respond in damages, absent the successful interposition of a qualified immunity defense." Walker, supra, at 658-659. Where the hearing officer denied the plaintiff's request for witnesses without a finding that the testimony would be "irrelevant or redundant", or that "correctional goals would be jeopardized by [the witnesses'] presence", and the plaintiff subsequently served time in the SHU, a valid cause of action remained as the "administrative appeal process [did] not bar his section 1983 claim." Walker, supra, at 659. See also Mays v. Mahoney, 23 F.3d 660 (2d Cir.1994) (reversal on administrative appeal does not cure the wrongful deprivation of a liberty interest resulting from a due process violation at a prisoner's disciplinary hearing).
In this case, Plaintiff was keeplocked in the SHU as of May 21, 1990. On May 25 and May 31, 1990, at the first disciplinary hearing, LeBaron denied Plaintiff's request for witnesses, stating that these witnesses were not directly involved in the food strike incident, and that, therefore, their testimony would be irrelevant to the confidential information he received from the informant on which the misbehavior report was based. See Affidavit of Patricia Priestley, Exhibit E, Transcript of First Hearing, at p. 13. LeBaron also did not make any assessment of the reliability of the confidential informant. Plaintiff was found guilty and sentenced to 730 days in the SHU which time he immediately began to serve. On August 5, 1990, Defendant LeBaron's guilty determination was reversed, and a rehearing was ordered.
At the second disciplinary hearing, Defendant Grant allowed two inmate witnesses, but denied Plaintiff's third request for inmate Green on the basis that Green was located in a different cellblock and, as such, was not directly involved with Plaintiff's behavior regarding the food strike. Grant also allowed Defendants Dann and Irvin as witnesses. Grant questioned Defendant Irvin as to the reliability of the confidential informant, and conducted a further, on the record, confidential interview with Defendant Walker, who had a previous history with the confidential informant and attested to the informant's previous reliability. Following the hearing, Defendant Grant found Plaintiff guilty of the charges, and sentenced Plaintiff to 730 days in the SHU. This sentence was modified on November 5, 1990 to 365 days in the SHU. The amount of time served by Plaintiff as of that date was credited to Plaintiff, and Plaintiff was released from keeplock on May 21, 1991 after serving a 365 day sentence.
Defendant Grant allowed Plaintiff all of his requested witnesses but one, and this denial was certainly within the discretion of the hearing officer as the information to be obtained from the witness was deemed irrelevant. Further, Grant properly assessed the reliability of the confidential informant by questioning both Defendant Irvin and Defendant Walker as to the informant's previous history of reliability. However, the results of Plaintiff's second disciplinary hearing were reversed by the Appellate Division on the ground that the guilty verdict was not based on substantial evidence, as a result of Plaintiff's filing of an Article 78 petition. Prior to the ruling in Walker v. Bates, the process afforded an inmate in an Article 78 proceeding was held to cure any defect in the original hearing. Richardson v. Van Dusen, 833 F.Supp. 146, 153 (N.D.N.Y.1993); Maddox v. Coughlin, 1993 WL 22156 at *1 (S.D.N.Y. *207 1993). But see Moye v. Selsky, 826 F.Supp. 712, 724 (S.D.N.Y.1993) (where plaintiff brought an Article 78 proceeding to obtain reversal of administrative determination, court found that plaintiff's due process rights were not vindicated).
The court finds that, while the Appellate Division fully litigated the facts underlying Plaintiff's disciplinary hearing, and found that the final determination of guilt was not supported by substantial evidence, the standard in raising a civil rights action is whether or not the guilty determination was based on some evidence. See Superintendent, Mass. Correctional Institution v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Nurse v. Duffany, 1991 WL 24321 at *9 (S.D.N.Y.1991) (disciplinary hearing finding will be upheld in civil rights action as long as there is some evidence which supports the decision of the prison disciplinary board). After reviewing the record of Plaintiff's second disciplinary hearing, the court finds that the determination of guilt was based on some evidence, and therefore, for the purposes of filing a § 1983 action, Plaintiff received all the process he was due in the second hearing.
Further, while Plaintiff was deprived of a liberty interest during the pendency of his administrative appeal and the second hearing, Plaintiff did not suffer a denial of due process where the second hearing rectified the errors in the first hearing which had resulted in a violation of Plaintiff's due process rights. See Harper v. Lee, 938 F.2d 104, 105 (8th Cir.1991) (no due process violation where inmate ultimately afforded due process protection and experienced no harm). Although the guilty determination was ultimately reversed after an Article 78 proceeding, the court has found that the determination by Defendant Grant at the second hearing was based on some evidence, the applicable standard for a § 1983 action.
Further, while Plaintiff was confined in the SHU during the pendency of his administrative appeals and Article 78 proceedings, after the guilty determination in the second hearing, Plaintiff was credited for the time already served in the SHU. In Harris v. Scully, 1993 WL 159972 (S.D.N.Y.1993), the court held that where an inmate was found guilty of violating prison disciplinary rules at a second hearing, after the procedural defects in the first hearing had been cured, the punishment already served as a result of the first hearing may be treated as "harmless" if it is credited to any subsequent sentence the inmate must serve. Harris, supra, at *2 (citing Harper v. Lee, supra, at 105-106). See also, e.g., North Carolina v. Pearce, 395 U.S. 711, 718-19, 89 S.Ct. 2072, 2077-78, 23 L.Ed.2d 656 (1969) (defendant's constitutional rights not violated where, after retrial of conviction, defendant was credited for the punishment already served as a result of the first conviction).
"The touchstone of due process is protection of the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974) (citing Dent v. West Virginia, 129 U.S. 114, 123, 9 S.Ct. 231, 233, 32 L.Ed. 623 (1889)). Here, the second disciplinary hearing conducted by Defendant Grant was, for the reasons discussed, conducted in accordance with the due process standards established in Wolff. As Plaintiff actually served no greater a period of punishment than had been administratively ordered, and as that discipline was determined to be fully justified at the conclusion of the second hearing, Plaintiff suffered no punishment as a result of "arbitrary action" by any defendant. Wolff, supra, 418 U.S. at 558, 94 S.Ct. at 2975.
Not only is this result consistent with the general due process principles laid down by the Court in Wolff, the conclusion that the second hearing comported with the due process standards applicable to prison discipline also fosters the institutional goals recognized by the Court in Wolff as one element justifying and requiring that the administration of prison discipline conform to the flexible due process standards imposed by Wolff. The Court specifically took into account that the minimum standards to be required of prison authorities in dealing with inmate misbehavior should be manifested in the disciplinary proceedings themselves so as to promote the "institutional goal of modifying the behavior and value systems of prison inmates ..." as *208 a step toward rehabilitation and eventual release. Wolff, supra at 562-63, 94 S.Ct. at 2978.
Plaintiff received all the process that he was due. To hold that where an inmate is determined, after a properly conducted hearing, to have violated prison disciplinary rules and suffering no deprivation of liberty not found justified as a result, nevertheless accrues an enforceable constitutional claim based on errors at an earlier proceeding, would exalt appearance over reality, contrary to the rehabilitative objectives stated by the Court in Wolff, and may weaken "the disciplinary process as a rehabilitation vehicle." Wolff, supra, at 568, 94 S.Ct. at 2980.
In this case, Plaintiff, during the pendency of his two disciplinary hearings, was given his due process rights. The fact that the determination of guilt was ultimately overturned by the Appellate Division does not change this result as the court has concluded, above, that the guilty verdict was based on some evidence, the applicable standard for civil rights actions relating to prison disciplinary hearings. Further, Plaintiff did not suffer a deprivation of his liberty interest after his second hearing where he was credited for the time served following the first hearing. Accordingly, Plaintiff's motion for partial summary judgment on the fourth and fifth causes of action is DENIED, and Defendants' motion for summary judgment on these causes of action is GRANTED.
(2) Qualified Immunity
Defendants raised as an affirmative defense that Defendants LeBaron and Grant had qualified immunity for their actions in conducting the two disciplinary hearings involving Plaintiff. Plaintiff claimed that his due process rights were violated as neither Defendant assessed the credibility of the confidential informant, and that both Defendants denied him the right to call witnesses. As the court has concluded that the fourth and fifth causes of action of Plaintiff's amended complaint should be dismissed, it need not reach the issue of qualified immunity. However, the court notes that, arguendo, even if Defendants' summary judgment motion on these causes of action were not granted, Defendant Grant would be entitled to qualified immunity for his actions, although Defendant LeBaron would not.
Those individuals who adjudicate disciplinary hearings in prison are entitled to qualified immunity as opposed to absolute immunity. Walker v. Bates, 23 F.3d 652, 656 (2d Cir.1994). Therefore, Defendants LeBaron and Grant, both prison hearing officers, are entitled to qualified immunity from liability for damages if their conduct did not violate a clearly established statutory or constitutional right of Plaintiff. Anderson v. Creighton, 483 U.S. 635, 637-41, 107 S.Ct. 3034, 3037-40, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982); Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir.1993). In order to receive this protection, the hearing officer must demonstrate that it was objectively reasonable to believe that his or her conduct did not violate the clearly established right. Weg, supra, at 17. In determining whether a particular right was clearly established at the time the allegedly unconstitutional acts took place, a court must consider three factors: (1) whether the right in question was defined with "reasonable specificity;" (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and, (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful. Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1565, 118 L.Ed.2d 211 (1992). Further, defendant public officials, such as prison hearing officers, are "charged with knowledge of relevant decisional law, especially the decisions of the circuit in which they perform their official duties." Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir.1989).
The Supreme Court, in Superintendent, Mass. Correctional Institution v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), held that "the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board ... this standard is met if there was some evidence from which the conclusion of the administrative tribunal could be deduced." *209 Hill, supra, at 455, 105 S.Ct. at 2773. The Court noted that its standard did not require independent assessment of the credibility of witnesses. Hill, supra, at 455-56, 105 S.Ct. at 2773-75.
Earlier, in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court held that, subject to the circumstances of the case and the prison administrator's discretion, a prisoner should be allowed the opportunity to call witnesses and to present documentary evidence. Wolff, supra, at 564-69, 94 S.Ct. at 2978-81. In Scott v. Kelly, 962 F.2d 145 (2d Cir.1992), the Second Circuit held that a prisoner's request for a witness can be denied on the basis of irrelevance or lack of necessity. Scott, supra, at 146. Therefore, as of 1990, the date of Plaintiff's hearing, the right was clearly established that, subject to the prison administrator's discretion, an inmate could call his own witnesses at a disciplinary hearing.
In 1993, the Second Circuit noted that it had yet to rule upon "the issue of whether an inmate has a right to an independent assessment of the credibility of confidential informants and a contemporary record of that assessment." Richardson v. Selsky, 5 F.3d 616, 622 (2d Cir.1993). However, earlier, in Zavaro v. Coughlin, 970 F.2d 1148 (2d Cir. 1992), the court "clearly implied that prison officials should independently assess an informant's reliability if they relied upon that information in a disciplinary hearing." Richardson, supra, at 622.
The Second Circuit, in Russell v. Scully, 15 F.3d 219 (2d Cir.1993), again addressed the issue, stating that "even if there is a due process right to an independent assessment of informants' credibility and we do not regard that issue as foreclosed in this circuit that right would not entail more than some examination of indicia relevant to credibility rather than wholesale reliance upon a third party's evaluation of that credibility." Russell, supra, at 223. In Russell, the prison hearing officer interviewed a correctional officer who, following an assault, interviewed most of the inmates who observed the assault, including the victim and three confidential informants. The informants did not want their identities revealed. The hearing officer questioned the correctional officer as to the reliability of the confidential sources and the extent of her past experiences with the informants. There was also evidence that the hearing officer knew from prior experience that the correctional officer's confidential sources generally provided reliable information. Russell, supra, at 220. The court, upon rehearing, held that, as the hearing officer inquired into the reliability of the informants, and did not rely solely on the correctional officer's assessment of the credibility of the informants, along with the fact that the hearing officer was also aware that the officer's informants were historically reliable, it was objectively reasonable for the hearing officer to rely on the information. Russell, supra, at 223. The court stated that "it was not clearly established in 1989 (the time of the disciplinary hearing) (and it is not now) that the procedure followed by [the hearing officer] constituted a constitutionally inadequate independent examination of credibility." Russell, supra, at 223. Accordingly, the hearing officer was entitled to qualified immunity.
In this case, while it was clearly established that Plaintiff had the right, within the hearing officer's discretion, to call witnesses at his disciplinary hearings, it was not clearly established at the time of the 1990 hearings that Plaintiff had a right to have Defendants LeBaron or Grant independently assess the reliability of the informant. However, as of the time of the hearing in 1990, both Defendants were required to take into account, in their final determination, reliable indicia of the informant's credibility. Russell, supra, at 224; Wolfe v. Carlson, 583 F.Supp. 977, 982 (S.D.N.Y.1984) (imposition of discipline based solely on report by prison official of what an informant claims to have witnessed with no information as to the identity or the reliability of the informant is arbitrary government action) (citing Wolff, supra, 418 U.S. at 568, 94 S.Ct. at 2980).
Plaintiff asked to call seven witnesses at the first hearing, Deputy Superintendent Irvin, two correctional officers, Dann and Dumas, and four inmates. Defendant LeBaron indicated that one inmate witness refused to *210 testify, and that he was denying Plaintiff's requests for the other witnesses as they "were not directly involved in the incident and that their testimony would not be relevant to the confidential information that was given to [him] that the misbehavior report was based on." See Affidavit of Patricia Priestley, Exhibit E, Transcript of First Hearing, at p. 13. LeBaron also indicated that he had received confidential information from Defendants Dann and Irvin, but denied Plaintiff's request for the information. See Transcript of First Hearing, at p. 13. There was no assessment on the record as to the reliability or credibility of the informant. LeBaron then found Plaintiff guilty of the charges resulting from the food strike.
The court finds that Defendant LeBaron is not entitled to qualified immunity for his conduct relating to the first disciplinary hearing. LeBaron did not give more than conclusory reasons as to his refusal to allow Plaintiff to call any witnesses. Further, he conducted no assessment as to the reliability of the confidential informant. Rather, he relied solely on a third-party assessment as to the credibility of the informant. This procedure was not adequate to protect Plaintiff's rights to due process. As LeBaron did not take into account any indication of the reliability of the informant, he is not entitled to qualified immunity for his actions, as they were not objectively reasonable under the applicable precedent within the Second Circuit.
Defendant Grant, however, is entitled to qualified immunity. At the second hearing, Plaintiff requested three inmate witnesses, along with Dann and Irvin. Plaintiff presented his questions in writing to Defendant Grant prior to the hearing. At the hearing, Grant questioned Plaintiff as to the relevance of his witnesses. Grant then allowed two inmates, Mays and Tally, as witnesses, but denied Plaintiff's third request for inmate Green on the basis that Green was located in a different cellblock and so he was not directly involved with Plaintiff's behavior regarding the food strike. Grant also allowed Defendants Dann and Irvin as witnesses. Grant questioned Defendant Irvin as to the reliability of the confidential informant, and conducted a further on the record confidential interview with Defendant Walker who had a previous history with the confidential informant and attested to the informant's previous reliability. Following the hearing, Defendant Grant found Plaintiff guilty of the charges.
Defendant Grant allowed Plaintiff all of his requested witnesses but one, and this denial was certainly within the discretion of the hearing officer as the information to be obtained from the witness was deemed irrelevant. Further, Grant properly assessed the reliability of the confidential informant by questioning both Defendant Irvin and Defendant Walker as to the informant's previous history of reliability. Accordingly, as the procedure followed by Defendant Grant cannot be found to be constitutionally inadequate as not following clearly established rights as of the time of the hearing, Defendant Grant is entitled to qualified immunity for his actions.
(3) Claims against Defendants Coughlin and Selsky
Plaintiff also complains that Defendant Selsky should not have ordered a rehearing after he reversed Defendant LeBaron's determination, and that Selsky deprived him of his due process rights as he was aware of the violations of Plaintiff's rights but failed to correct them. These arguments are without merit.
Defendant Selsky, as the Director of Special Housing/Inmate Disciplinary Programs for the Department of Correctional Services, conducts the administrative appeals arising out of the determinations of disciplinary hearings held in the New York State prisons. As such, he performs a quasi-judicial role as a professional civilian hearing officer. This issue was discussed in both Pacheco v. Kihl, No. 90-549, 1991 WL 629846 (W.D.N.Y. December 18, 1991), and Gayle v. Kihl, No. 90-729 (W.D.N.Y. February 19, 1992), where the courts held that Selsky was entitled to absolute immunity for his actions as a professional hearing officer where Selsky affirmed decisions of the correctional officer who conducted disciplinary hearings which were later reversed. Both Pacheco and Kihl stated that Selsky, who works in the Department of *211 Correctional Services in Albany, New York, acted in an adjudicative capacity, on an independent basis from the prison staffs. Therefore, the courts reasoned that he was entitled to absolute immunity. See, e.g., Dorman v. Higgins, 821 F.2d 133, 137 (2d Cir.1987) ("some officials who are not judges but who `perform functions closely associated with the judicial process' have also been accorded [absolute] immunity") (quoting Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985)).
In this case, Defendant Selsky was acting in the same capacity as that in which he was found to have absolute immunity in Pacheco and Gayle. The court agrees with the analysis in those cases, and, therefore, finds that Defendant Selsky has absolute immunity from liability based on his role in reversing the decision in Plaintiff's disciplinary hearing, ordering a rehearing on the matter, and modifying the determination in the second hearing.
Therefore, Defendants' motion for summary judgment on the fourth and fifth causes of action against Defendant Selsky is GRANTED on the basis that he is entitled to absolute immunity. Plaintiff's motion for summary judgment on this claim against Selsky is DENIED.
Plaintiff also claims that Defendant Coughlin failed to properly train and supervise his employees, and, therefore, is liable to Plaintiff for the violation of Plaintiff's constitutional rights.
Defendant Coughlin is the Commissioner of the Department of Correctional Services for New York State, and is responsible for overseeing the correctional facilities within the state, including those facilities at Auburn and Attica. It is well settled, however, that an individual cannot be liable under Section 1983 for a violation of a person's constitutional rights on the basis of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). A defendant's personal involvement in an alleged deprivation of constitutional rights is a necessary element of a § 1983 complaint. Al-Jundi v. Estate of Nelson Rockefeller, 885 F.2d 1060, 1065-66 (2d Cir.1989).
A plaintiff may show that a supervising defendant is "personally involved" within the meaning of § 1983 if the defendant: (1) directly participated in the infraction, (2) failed to remedy the violation after notification of the violation, (3) instituted a policy or custom which permitted such infractions to occur, or allowed the continuance of an unconstitutional policy or custom, or (4) acted in a manner constituting gross negligence in the management of subordinates responsible for the unlawful acts. Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986). Plaintiff has failed to make any such showing in this case.
Plaintiff has simply set forth a conclusory statement that Coughlin is responsible for the overall operation of the Department of Correctional Services, and that he failed to properly train and adequately supervise Defendants Selsky, Walker, Irvin, Dann, LeBaron, and Grant. Additionally, Plaintiff claims that Coughlin failed to establish a policy or procedure that "would ensure specific ways of dealing with problems such as this complaint pleads," or that, if such a policy or procedure was in place, Coughlin failed to enforce such a policy. See Plaintiff's Complaint, at p. 22, ¶ 103. In his Memorandum of Law, dated April 29, 1993, Plaintiff asserts that "since Commissioner Coughlin is overall supervisor of the DOCS and empowered to properly train his subordinates, he is liable." See Plaintiff's Memorandum of Law, at p. 25, Point V. However, a defendant cannot be liable under § 1983 "simply because the defendant was in a high position of authority in the prison system." Rivera v. Coughlin, 1994 WL 263417 (S.D.N.Y.1994) (citing Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985)).
Where a plaintiff does not allege that a supervising individual had any personal involvement in the asserted constitutional violations, nor alleges that the individual promulgated or was otherwise aware of any unconstitutional customs or policies, the claim against that individual must be dismissed. *212 Parris v. Coughlin, 1993 WL 328199 at *3 (N.D.N.Y.1993). Plaintiff has not established that Defendant Coughlin was aware of any violation of Plaintiff's constitutional rights, or that Coughlin promulgated any policies designed to violate an inmate's constitutional rights. Accordingly, Plaintiff's claims against Defendant Coughlin must fail. Defendant's motion for summary judgment as to Defendant Coughlin is GRANTED.
(4) Plaintiff's Transfer to Attica
Plaintiff has raised a cause of action alleging that he was transferred from Auburn to Attica because of his race. Defendants assert that Plaintiff was transferred to Attica solely because of the allegation that Plaintiff was the "ringleader" behind the food strike at Auburn on May 19, 1990.
Prisoners do not have a constitutional right to remain in or to be transferred to a correctional facility of their own choosing. Meachum v. Fano, 427 U.S. 215, 224-225, 96 S.Ct. 2532, 2538-2539, 49 L.Ed.2d 451 (1976); Raffone v. Robinson, 607 F.2d 1058, 1061 (2d Cir.1979) (inter-prison transfers within a state do not trigger due process requirements).
Further, a prisoner who asserts an equal protection claim must prove the existence of purposeful discrimination. McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1766, 95 L.Ed.2d 262 (1987). In Martin v. Groose, 1994 WL 75784 (8th Cir.1994), an inmate was unsuccessful in his contention that he was transferred to a different facility because of his race. The inmate did not present evidence to rebut the defendant's assertion that the inmate was transferred because of a "serious security concern," not because of his race, and the court found that, on that basis, the defendant was entitled to summary judgment. See also Jones v. Brown, 1986 WL 16032 (6th Cir.1986) (inmate plaintiff failed to show racial animus behind prison transfer).
In this case, Plaintiff has presented no evidence to rebut Defendants' contention that Plaintiff was transferred to Attica from Auburn because of Defendants' belief that Plaintiff had been the chief organizer of a food strike. Defendant Irvin submitted an affidavit stating that the purpose of transferring Plaintiff to Attica was to "remove a disruptive influence from the correctional facility," as Plaintiff had been implicated as the "ringleader" of a food strike, and that other inmate industries were possibly planned to be targeted for strike purposes. Affidavit of Frank Irvin, dated March 5, 1993, at ¶ 4, 5, 8. In reply, Plaintiff denies Irvin's allegation, stating that, if such a danger was present, why was he not keeplocked immediately. Affidavit of Patricia Priestley, Exhibit W, at pp. 4-5. However, Plaintiff's statement does not raise any issue of material disputed fact. There is no evidence on this record that Plaintiff's transfer was made because of Plaintiff's race. Accordingly, Defendants' motion for summary judgment on the Third Cause of Action is GRANTED.
(5) Eighth Amendment Claim
Plaintiff also raises a claim that his eighth amendment right to be free from cruel and inhumane treatment was violated by the unsanitary conditions present at the Attica SHU, along with Plaintiff having to witness the attempted suicide of the prisoner in the next cell. Defendants claim that the conditions of which Plaintiff complain do not rise to the level of a violation of the Eighth Amendment.
Punishment is cruel and unusual if it "deprives inmates of the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). Although the Constitution, "does not mandate comfortable prisons," Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991), "inmates are entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly over a lengthy course of time." Howard v. Adkison, 887 F.2d 134, 137 (8th Cir.1989). Conditions of confinement, however, constitute cruel and unusual punishment "only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise." Wilson, supra, 501 U.S. at 304, 111 S.Ct. at 2327. "Nothing so amorphous as `overall conditions' *213 can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists." Wilson, supra, at 305, 111 S.Ct. at 2327. Conditions, such as a filthy cell, may "be tolerable for a few days and intolerably cruel for weeks or months." Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978).
In this case, Plaintiff asserts that, when he arrived at his cell in the Attica SHU, the cell was dirty and needed cleaning. (G. 21). Plaintiff acknowledged that cleaning supplies were given to him, and that he cleaned the entire cell. (G. 21-22). Plaintiff further stated that, as a result of other inmates' conduct, the area in front of Plaintiff's cell was filled with human feces, urine, and sewage water for a three day period. (G. 22). After three days, the correction officers brought an inmate porter to the area to clean. (G. 24). Plaintiff also complained of broken windows, and filed a grievance with the Attica prison authorities, of which the outcome is not known. (G. 26). Finally, Plaintiff stated that he was subjected to emotional anguish because of the attempted suicide of the inmate in the cell next door to his, although Plaintiff did not seek counseling or other medical treatment. (G. 27).
The court finds that Plaintiff has not established that he was subjected to cruel and unusual punishment in violation of his constitutional rights. Courts have found that certain conditions are not cruel and unusual where the inmate was subjected to the condition only for a short period of time. See, e.g., White v. Nix, 7 F.3d 120, 121 (8th Cir.1993) (no Eighth Amendment violation where prisoner was confined to allegedly unsanitary cell for eleven days, particularly where cleaning supplies were made available); Harris v. Fleming, 839 F.2d 1232, 1235-36 (7th Cir. 1988) (plaintiff "experienced considerable unpleasantness" for five days due to "filthy, roach-infested cell," but constitutional rights not violated).
In this case, Plaintiff was allegedly subjected to unsanitary conditions for a three day period, after which time the area was cleaned. This alleged fact, along with the incident involving the attempted suicide of another inmate, do not rise to the level of a constitutional violation under the Eighth Amendment. Accordingly, Defendant's motion for summary judgment on the Second Cause of Action is GRANTED.
(6) Claim Under 42 U.S.C. § 1985(3) and § 1986
Finally, Plaintiff claims that Defendant Walker, Irvin, Dann, and John Doe conspired to deprive Plaintiff of his constitutional rights under the Eighth and Fourteenth Amendments, and that Defendants Walker, Irvin, and Dann acted with racially and class-based discriminatory animus against him.
In order to establish a cause of action under 42 U.S.C. § 1985, a plaintiff must show that a defendant conspired with another person to deprive the plaintiff, or a class of which plaintiff was a member, of equal protection of the laws or of equal privileges and immunities under the law. Sorlucco v. New York City Police Department, 888 F.2d 4, 8 (2d Cir.1989). Section 1985 provides no substantive rights itself, but merely "provides a remedy for violation of the rights it designates." Great American Federal Savings and Loan Association v. Novotny, 442 U.S. 366, 372, 99 S.Ct. 2345, 2349, 60 L.Ed.2d 957 (1979).
In order to state a claim under 42 U.S.C. § 1985(3), a complaint must allege that the defendants who allegedly conspired sought, with discriminatory intent, to deprive the plaintiff of a right covered by the Constitution or other laws. See Spencer v. Casavilla, 903 F.2d 171, 174 (2d Cir.1990).
In this case, Plaintiff has not alleged any discriminatory intent by the Defendants against him. Rather, he only makes a conclusory statement that Defendants, acting with "racially and class-based, invidiously discriminatory animus," see Plaintiff's Complaint, at p. 15, ¶ 79, conspired to deprive him of his constitutional rights by fabricating evidence linking Plaintiff to the food strike. When directly asked if he had any evidence of such a conspiracy, Plaintiff conceded that he did not. (G. 28-29).
A conclusory allegation is not enough to state a valid claim under 42 U.S.C. § 1985(3). See Temple of the Lost Sheep, Inc. v. *214 Abrams, 930 F.2d 178, 185 (2d Cir.1991) (claim under 42 U.S.C. § 1985(3) dismissed as the complaint was "couched in terms of conclusory allegations and failed to demonstrate `some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action" as required by § 1985) (quoting New York State National Organization for Women v. Terry, 886 F.2d 1339, 1358 (2d Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990)). Since Plaintiff's complaint does not assert that the alleged conspiracy was formed "for the purpose of depriving" Plaintiff "of the equal protection of the laws, or of equal privileges or immunities under the laws," see 42 U.S.C. § 1985, the Complaint fails to state a claim under 42 U.S.C. § 1985 for which relief can be granted. See Dubois v. Connecticut State Board of Education, 727 F.2d 44, 47 n. 3 (2d Cir. 1984). Accordingly, Defendants' motion for summary judgment on this issue is GRANTED.
42 U.S.C. § 1986 imposes liability on an individual who has knowledge of wrongs prohibited under 42 U.S.C. § 1985, yet fails to prevent them. However, without a violation of Section 1985, there can be no violation of Section 1986. Hahn v. Sargent, 523 F.2d 461, 469-70 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). A claim under 42 U.S.C. § 1986 is contingent upon a valid § 1985 claim. See Seguin v. City of Sterling Heights, 968 F.2d 584, 590 (6th Cir.1992); Trerice v. Pedersen, 769 F.2d 1398, 1403 (9th Cir.1985).
Since Plaintiff's claim under 42 U.S.C. § 1985 is being dismissed, Plaintiff's claim under 42 U.S.C. § 1986 should also be dismissed. Therefore, Defendants' motion for summary judgment on the First Cause of Action is also GRANTED.
CONCLUSION
Based on the foregoing discussion, Plaintiff's motion for partial summary judgment is DENIED. Defendants' motion for summary judgment as to all causes of action against all Defendants is GRANTED, and this action is hereby dismissed.
SO ORDERED.
NOTES
[1] G. references are to the page number of the transcript of the deposition of Plaintiff, Kenneth Gaston, dated October 29, 1992.
[2] Walker was decided during the pendency of Plaintiff's and Defendants' motions, and is, therefore, applicable to this action. See, e.g., Mitchell v. Board of Education of the Ossining Union Free School District, 1990 WL 124334 at *2 (S.D.N.Y. 1990) (court ordered further briefing prior to decision where relevant decision was issued during pendency of the parties' motions). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261568/ | 861 F.Supp. 1277 (1994)
WLR FOODS, INC., Plaintiff,
v.
TYSON FOODS, INC., Defendant,
and
TYSON FOODS, INC. and WLR Acquisition Corp., Counterclaimants,
v.
WLR FOODS, INC., et als., Counterclaim-defendants.
Civ. A. No. 94-012-H.
United States District Court, W.D. Virginia, Harrisonburg Division.
August 9, 1994.
*1278 *1279 Douglas Leigh Guynn, Wharton, Aldhizer & Weaver, Harrisonburg, VA, William R. Norfolk, Sullivan & Cromwell, New York City, for WLR Foods, Inc.
Leslie Allan Grandis, Thomas Francis Farrell, II, James Vernon Lane, Litten & Sipe, Harrisonburg, VA, James Linwood Sanderlin, James Rothgeb Sipe, Litten & Sipe, Harrisonburg, VA, Thomas Edward Spahn, McGuire, Woods, Battle & Boothe, Richmond, VA, Russell E. Brooks, Milbank, Tweed, Hadley & McCloy, New York City, Tyson Foods, Inc.
John Walter Zunka, Richard H. Milnor, Taylor & Zunka, Ltd., Charlottesville, VA, for William H. Groseclose, Herman D. Mason, George E. Bryan, Calvin G. Germroth, Charles W. Wampler, Jr., James L. Keeler, William D. Wampler, Charles L. Campbell, Stephen W. Custer and J. Craig Hott.
MEMORANDUM OPINION
MICHAEL, District Judge.
Tyson Foods, Inc. (Tyson) has commenced a hostile attempt to take over WLR Foods, Inc. (WLR). In doing so, it has made a tender offer to WLR shareholders of $30 per share. WLR has filed suit seeking a declaratory judgment affirming various measures undertaken by WLR to defend against Tyson's takeover attempt. Tyson has counterclaimed, asserting that such measures are illegal, that WLR's Board of Directors has breached its fiduciary duty, and that Virginia's statutory scheme affecting hostile takeover attempts is unconstitutional.
Presently before the court is Tyson's motion for a preliminary injunction challenging the constitutionality of four Virginia statutes that affect its attempt to take over WLR. The issues before the court are (1) whether the Virginia statutes are preempted by the Williams Act, 15 U.S.C. §§ 78m(d)-(e), 78n(d)-(f); and (2) whether the Virginia statutes violate the Commerce Clause, U.S. Const. art. I, § 8, cl. 3. Tyson's motion for a preliminary injunction is denied.
I.
Tyson's constitutional challenge implicates four separate Virginia statutes ("the Virginia statutes"). The first is the Control Share Acquisitions Act ("Control Share Act"), Va. Code Ann. §§ 13.1-728.1 to -728.9 (Michie 1993). Generally, the Control Share Act denies voting rights to any shares held by an acquiror not approved by a Virginia corporation's Board of Directors, unless a majority of disinterested shares votes to grant such rights in a shareholder referendum. Id. § 13.1-728.3. "Interested" shares may not vote, and they are defined to include shares held by (1) the acquiror; (2) any officer of the target corporation; and (3) any employee of the target corporation who is also a director. Id. § 13.1-728.1. The Control Share Act's provisions apply upon a person's acquisition of at least one-fifth of the total votes *1280 entitled to be cast in an election of directors. Id. This court previously has refused to preliminarily enjoin from voting in the control share referendum four WLR director/employees who continued as directors but resigned as employees for the purpose of voting their shares in the control share referendum. See WLR Foods, Inc. v. Tyson Foods, Inc., 857 F.Supp. 496 (W.D.Va.1994).
The second statute at issue is the Affiliated Transactions Act, Va.Code Ann. §§ 13.1-725 to -727.1 (Michie 1993). As applied to this case, this statute makes it very difficult to merge with or otherwise absorb a Virginia corporation acquired in a tender offer for three years after the acquisition. Pursuant to this statute, Tyson would not be permitted to engage in an "affiliated transaction"[1] with WLR for three years unless the transaction was approved by (1) a majority, but not less than two, of WLR's "disinterested directors";[2]and (2) two-thirds of voting shares in WLR, other than shares beneficially held by Tyson. Id. § 13.1-725.1. After three years, WLR may engage in an affiliated transaction with Tyson if (1) approved by two-thirds of voting shares in WLR, other than shares beneficially held by Tyson; or (2) approved by a majority of disinterested directors; or (3) Tyson pays a statutorily defined value to each class of WLR's voting securities. Id. §§ 13.1-726, -727.
The third statute affecting Tyson's tender takeover attempt is Va.Code Ann. § 13.1-646 (Michie 1993) ("Poison Pill Statute"). This statute authorizes a corporation's directors to issue discriminatory rights in favor of specific persons or classes, limited only by Va.Code § 13.1-690, governing directors' business judgment. Id. § 13.1-646(B). WLR has used this statute to enact a "flip-in" poison pill, which triggers upon the accumulation of fifteen percent or more of WLR stock by any shareholder. When triggered, WLR's poison pill allows all shareholders, except the shareholder who has accumulated at least fifteen percent of the shares, to purchase $136 worth of WLR stock for only $68. When exercised, this will substantially reduce the percentage of total shares held by Tyson, while simultaneously diminishing the value of each share. As an example, if Tyson accumulated sixty percent of 10,000,000 WLR shares outstanding through its $30 per share tender offer, the poison pill would trigger and could reduce Tyson's stake to only 21.3 percent, and the value of each share could drop from $30 to $20.33.
The final statute at issue is Va.Code Ann. § 13.1-690 (Michie 1993) ("Business Judgment Statute"). This court previously has ruled that § 690 focuses on the procedural indicia of good faith business judgment as measured by resort to an informed decision-making process, thus making irrelevant the substantive advice received by directors. WLR Foods, Inc. v. Tyson Foods, Inc., 857 F.Supp. 492 (W.D.Va.1994). In short, the statute focuses on whether directors relied upon information and advice which they believed in good faith to be competent and reliable. See id. at 497. Tyson alleges that this prevents it from discovering whether WLR's directors acted in the best interests of the corporation in utilizing the other three statutes to defend against Tyson's takeover attempt.
II.
In deciding whether to issue a preliminary injunction, the court must consider four factors: (1) the likelihood of irreparable harm to Tyson without the injunction; (2) the likelihood of harm to WLR with the injunction; (3) Tyson's likelihood of success on the merits; and (4) the public interest. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 *1281 F.2d 189, 193-96 (4th Cir.1977). These four factors are to be weighed flexibly based on a sliding-scale approach; a strong showing by a party with regard to one factor reduces the need for that party to make a strong showing concerning other factors. Dan River, Inc. v. Icahn, 701 F.2d 278, 283 (4th Cir.1983) (citing North Carolina State Ports v. Dart Containerline Co., 592 F.2d 749, 750 (4th Cir. 1979)). The balance of hardships created by the likelihood of irreparable harm to each side is the most important consideration, and because of the extraordinary nature of a preliminary injunction the harm to the movant truly must be irreparable, rather than merely substantial, for a preliminary injunction to be granted. See Hughes Network Sys., Inc. v. Interdigital Communications Corp., 17 F.3d 691, 693-94 (4th Cir.1994).
In this case, the balance of hardships and the public interest are tied to the likelihood of success on the merits. Several cases recognize the harm caused to tender offerors by delay or defeat of its offer caused by improper or illegal tactics undertaken by management. See, e.g., Dan River, 701 F.2d at 283-84; Kennecott Corp. v. Smith, 637 F.2d 181, 190 (3d Cir.1980); Bendix Corp. v. Martin Marietta Corp., 547 F.Supp. 522, 532 (D.Md. 1982). In this case, Tyson alleges that the acquisition of WLR presents a unique business opportunity and that allowing WLR's management to improperly block the takeover would cause irreparable harm. Any potential harm to Tyson, however, is predicated on the invalidity of the statutes. If the statutes are constitutional, then WLR's use of them is not improper. Likewise, if the statutes are unconstitutional, then the delay in Tyson's takeover caused by WLR's use of the statutes potentially could cause great harm to Tyson. The court notes, however, that Tyson has presented no evidence that WLR's directors are preventing dissemination of information to shareholders or that they have taken any actions to entrench themselves further subsequent to Tyson's filing of the preliminary injunction motion. The possibility exists, of course, that before final judgment is entered in this matter WLR's directors could take such action or that the poison pill could trigger, but the extent of harm caused to Tyson would depend upon the constitutionality of the statutes pursuant to which the directors acted.
Similarly, the extent of harm caused to WLR by a preliminary injunction would depend upon the likelihood of success on the merits. If the court eventually declares the Virginia statutes constitutional but grants the preliminary injunction, WLR is robbed of its opportunity to take legitimate defensive measures presumably designed to ensure the adequacy of Tyson's tender offer. Conversely, if the statutes are unconstitutional WLR would suffer no harm because its actions pursuant to the statutes would have been invalid.
Furthermore, the public interest is directly tied to the likelihood of success on the merits when the issue is the validity of statutes. If the statutes are valid, then the public interest is served by their enforcement. If they are unconstitutional, then the public interest is served by their invalidation. Because in this case the other three Blackwelder factors flow from it, the likelihood of success on the merits will determine whether the court will grant a preliminary injunction.
III.
A preliminary matter will affect the merits of Tyson's constitutional challenges. Tyson asserts that the four Virginia statutes operate as a scheme in the area of hostile takeovers and tender offers. As a result, Tyson contends that even if each statute individually is constitutional, the scheme as a whole can be unconstitutional.
The Supreme Court recently addressed this issue in its June 17, 1994 decision in West Lynn Creamery, Inc. v. Healy, ___ U.S. ___, 114 S.Ct. 2205, 129 L.Ed.2d 157 (1994). In that case, the Court invalidated on Commerce Clause grounds a Massachusetts pricing order containing two components: (1) an assessment on all milk, whether produced in-state or out of state, sold to in-state retailers; and (2) a subsidy provided to in-state dairy farmers using the funds received from the assessment. Id. at ___, 114 S.Ct. at 2209-10. The Court rejected the proposition that the pricing order was valid merely because it was the combination of two *1282 independently lawful regulations. Id. at ___-___, 114 S.Ct. at 2213-17. Tyson asserts that this case conclusively shows that statutes may be unconstitutional as a scheme, even if the scheme's components are all separately constitutional.
West Lynn Creamery is not directly on point, however. Unlike this case, it involved two statutes that the legislature intentionally joined together to create an integrated program the subsidy flowed directly from the funds received from the assessment. The Court noted that "[b]y conjoining a tax and a subsidy, Massachusetts has created a program more dangerous to interstate commerce than either part alone." Id. at ___-___, 114 S.Ct. at 2214-15. The Court refused to "analyze separately two parts of an integrated regulation, [because] we cannot divorce the premium payments from the use to which they are put." Id. at ___, 114 S.Ct. at 2215. In contrast, the statutes that Tyson challenges here are not parts of an integrated program. They were enacted separately at separate times for separate purposes and with separate applications. Their only apparent link is that they all affect Tyson's bid to take over WLR.
Notwithstanding this distinction, dicta in West Lynn Creamery could be read to support Tyson's assertion that a statutory scheme can be invalid even if all of its parts are constitutional. The Court later stated in West Lynn Creamery, "[o]ur Commerce Clause jurisprudence is not so rigid as to be controlled by the form by which a State erects barriers to commerce. Rather our cases have eschewed formalism for a sensitive, case-by-case analysis of purposes and effects." Id. Based on this statement, it could be argued that if several statutes actually affect an area of interstate commerce or actually stand as an obstacle to the purposes and objectives of federal law, then they should not be used together in a manner detrimental to interstate commerce or in contravention of federal law. The effect of the statutes, if burdensome enough, should be sufficient to preclude a particular unconstitutional application of the statutes used together. "[T]he critical consideration is the overall effect of the statute[s] on both local and interstate activity." Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 579, 106 S.Ct. 2080, 2084, 90 L.Ed.2d 552 (1986). Courts must "determine whether the statute[s] under attack, whatever [their] name may be, will in [their] practical operation work discrimination against interstate commerce." West Lynn Creamery, ___ U.S. at ___-___, 114 S.Ct. at 2215-16 (citations omitted). This dicta suggests, therefore, that the practical operation of statutes is more important than their form.
Extending West Lynn Creamery to non-integrated statutes not intentionally joined together, however, would create enormous difficulties for district courts. In West Lynn Creamery, the Court was able to invalidate the two components of the milk pricing order because the legislature purposefully linked them together. Id. at ___, 114 S.Ct. at 2213-15. The Court was able to do so because the Massachusetts legislature never intended either statute to stand separately. With non-integrated statutes that are separately constitutional, however, what is a court to do if it determines that the overall "scheme" is unconstitutional? The statutes have separate applications that are constitutional, so none can be struck down as unconstitutional. Only when used together in a particular way would they be unconstitutional. Thus, a court only could enjoin that particular unconstitutional use.
But what is the particular unconstitutional way in which the Virginia statutes were used? At what point did WLR enter the realm of unconstitutionality? Was it when they approved the poison pill? Was it when they called for a control share referendum? Does it matter whether they understood the implications of the Affiliated Transactions Act when they took action? Could they approve a poison pill if they opt out of the Control Share Act? Could they utilize the Control Share Act if they do not adopt a poison pill? From these and many more questions that have no clear answers, it is apparent that a court would be faced with a dilemma when evaluating a non-integrated statutory "scheme". If the collective statutes were used unconstitutionally, what part *1283 should be enjoined? Perhaps the management could be given a choice either redeem the poison pill or opt out of the Control Share Act. Would that be sufficient to overcome the unconstitutional application of the statutes? Perhaps management could be precluded from utilizing the Control Share Act or adopting a poison pill anytime the Affiliated Transactions Act applies. The Affiliated Transactions Act applies, however, every time that the Control Share Act applies because of the ownership percentage requirements that trigger each statute. This would mean that management would always be precluded from using the Control Share Act, which as a practical matter is the same as declaring the Control Share Act unconstitutional.
The convoluted nature of the matter demonstrates the problems of extending West Lynn Creamery beyond an integrated statutory program. Despite such problems, however, the court will assume without deciding that non-integrated statutes can be unconstitutional as a scheme even if they are separately constitutional.
IV.
The first question in this case is whether the Williams Act, 15 U.S.C. §§ 78m(d)-(e), 78n(d)-(f), preempts the Virginia statutes. Pursuant to the Supremacy Clause of the United States Constitution, federal law is the "supreme law of the Land ..., any Thing in the Constitution or Laws of a State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. In addition to an explicit indication by Congress of its intent to preempt state law, state statutes are preempted when it is physically impossible to comply with both federal and state laws or when "the state `law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 78-79, 107 S.Ct. 1637, 1644, 95 L.Ed.2d 67 (1987) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)). Tyson contends that federal law preempts the Virginia statutes because they stand as an obstacle to the purposes and objectives of the Williams Act.
The Williams Act regulates disclosure to shareholders and procedures required in tender offers. First, it requires a tender offeror to file a statement disclosing, inter alia, the offeror's identity and background, the funding source to be used, any anticipated changes in corporate structure, and the extent of the offeror's holdings in the target corporation. See 15 U.S.C. § 78n(d)(1) (incorporating § 78m(d)(1) by reference); 17 C.F.R. §§ 240.13d-1, 240.14d-3 (1986). Secondly, it establishes certain procedures that tender offerors must follow. Shareholders who have tendered their shares may withdraw them while the offer remains open if the shares have not been purchased within sixty days of the commencement of the offer. 15 U.S.C. § 78n(d)(5); 17 C.F.R. § 240.14d-7(a)(1), as amended by 51 Fed.Reg. 25873 (1986). Also, any offer must remain open for at least twenty business days. Id. § 240.14e-1(a). If the offeror receives more shares than it seeks to purchase, then it must purchase on a pro rata basis from all tendering shareholders. 15 U.S.C. § 78n(d)(6); 17 C.F.R. § 240.14d-8. Lastly, the offeror must pay the same price for all shares purchased during the offer, including paying any increase to shareholders that already had tendered their shares before the increase. 15 U.S.C. § 78n(d)(7).
The primary purpose of the Williams Act is to protect shareholders from the coercive aspects of tender offers by "plac[ing] investors on an equal footing with the takeover bidder." CTS, 481 U.S. at 82, 107 S.Ct. at 1645-46 (quoting Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 30, 97 S.Ct. 926, 943, 51 L.Ed.2d 124 (1977)). The Williams Act protects investors in part by attempting to maintain a balance between management and the offeror to create a fairly level playing field in the contest for shares. See Edgar v. MITE Corp., 457 U.S. 624, 633, 102 S.Ct. 2629, 2636, 73 L.Ed.2d 269 (1982) (plurality opinion) ("[I]t is also crystal clear that a major aspect of the effort to protect the investor was to avoid favoring either management or the takeover bidder."). This has led to the view endorsed by Tyson that balance between management and the offeror is an independent purpose of the Williams Act. As a *1284 result, Tyson asserts that the Williams Act preempts the Virginia statutes if they deprive a tender offer of a "meaningful opportunity for success."[3]
This court rejects the meaningful opportunity for success test for determining whether the Williams Act preempts the Virginia statutes. Creating neutrality between management and the offeror simply is not an independent purpose of the Williams Act. "Neutrality is, rather, but one characteristic of legislation directed toward a different purpose the protection of investors." Piper, 430 U.S. at 29, 97 S.Ct. at 943.[4] Even the three justice plurality in MITE, which Tyson reads as supporting its view, makes that distinction. "Congress sought to protect the investor not only by furnishing him with the necessary information but also by withholding from management or the bidder any undue advantage that could frustrate the exercise of an informed choice." MITE, 457 U.S. 624, 634, 102 S.Ct. 2629, 2636 (emphasis added). In CTS,[5] the Court clarified that "the overriding concern of the MITE plurality was that the ... statute considered in that case operated to favor management against offerors, to the detriment of shareholders." CTS, 481 U.S. at 81-82, 107 S.Ct. at 1645 (emphasis added). Management must not be permitted to gain an undue advantage over the investors, but the Williams Act simply does not mandate that management have no advantage over the offeror, as long as such advantage does not harm the investors. The crucial relationships are those between the investors and management and between the investors and the offeror, not the relationship between management and the offeror. The purpose of the Williams Act is to protect investors by ensuring an informed choice; therefore, the Virginia statutes are preempted if they favor either management or the tender offeror over the investors.
The Virginia statutes clearly give power to management and remove it from tender offerors, but they are preempted only if they do so to the detriment of shareholders. Viewing all of the statutes collectively, the statutory "scheme" puts several obstacles in the way of Tyson's tender offer. First, if Tyson acquires more than fifteen percent of WLR's shares a poison pill will trigger, substantially reducing Tyson's percentage of ownership and the value of each share.[6] Then, pursuant to the Control Share Act, unless the directors opt out of its provisions, disinterested shareholders could vote to take away voting rights from any shares that Tyson owns. If Tyson nonetheless managed to take over WLR, it effectively would be precluded from merging it into Tyson for at least three years pursuant to the Affiliated Transactions Act. Furthermore, pursuant to the Business Judgment Statute the decisions of WLR's directors in enacting defensive measures could be reviewed only for good faith business judgment, with no discovery of the substantive advice that the directors received in reaching their decisions.
The Virginia statutes do not stand as an obstacle to the purposes and objectives of the Williams Act. In CTS, the Supreme Court reviewed an Indiana statute virtually identical to the Control Share Act and held *1285 that it was not preempted by the Williams Act. CTS, 481 U.S. at 81-84, 107 S.Ct. at 1645-46. The Control Share Act furthers the policy of investor protection by allowing disinterested shareholders to vote as a group and avoid the coercive nature of two-tiered tender offers, in which shareholders are virtually forced to tender out of fear that a successful offeror will seize control and buy non-tendered shares at a depressed price. Id. at 83, 107 S.Ct. at 1646. The Control Share Act excludes management and the tender offeror and allows disinterested shareholders collectively to evaluate the fairness of the offer. Id. at 83-84, 107 S.Ct. at 1646. Furthermore, by requiring offerors to furnish target corporations with a control share acquisition statement,[7] which then must be mailed by the target corporation to shareholders, see Va.Code Ann. § 13.1-728.6(B)(1) (Michie 1993), the Control Share Act facilitates the free exercise of informed choices by independent investors.[8]
Likewise, the Affiliated Transactions Act does not stand as an obstacle to the purposes and objectives of the Williams Act. Although it makes tender offers less attractive by effectively delaying a merger for at least three years, it does not regulate the procedures or disclosures required in a tender offer. It applies whether an acquisition was made by tender offer or any other means of gaining control. As the Seventh Circuit recognized in Amanda Acquisition Corp. v. Universal Foods Corp., 877 F.2d 496 (7th Cir.1989) where it held that the Williams Act does not preempt a statute very similar to the Affiliated Transactions Act, "[d]elay in completing a second-stage merger may make the target less attractive, and thus depress the price offered or even lead to an absence of bids; it does not, however, alter any of the procedures governed by federal regulation." Id. at 504.
To the extent that it does affect Tyson's tender offer, however, the Virginia legislature apparently intended the Affiliated Transactions Act to protect minority shareholders from self-dealing by the majority and to discourage corporate raiders from using a target corporation's assets for the raider's own devices or from extracting greenmail from the target. Revised Joint Bar Comm. Commentary to Section 13.1-725 of the Virginia Stock Corporation Act, Virginia Corporation Law 239 (Michie 1992). Like the Control Share Act, the Affiliated Transactions Act gives independent shareholders a tool to prevent abuses by an acquiror. It interferes neither with the procedures set up by the Williams Act nor with the ability of shareholders to make an informed choice about a tender offer.
The Poison Pill Statute also does not stand as an obstacle to the purposes and objectives of the Williams Act. It gives management a very strong tool to use to block a tender offer, but directors may not do so to the detriment of the shareholders. Any action by directors regarding poison pills is explicitly subject to the provisions of the Business Judgment Statute. See Va.Code Ann. § 13.1-646(B) (Michie 1993). Directors are precluded from adopting or refusing to redeem a poison pill if to do so does not comport with the directors' "good faith business judgment of the best interests of the corporation." Id. § 13.1-690. The Poison Pill Statute creates the potential for management to entrench itself at the expense of the shareholders, but the possibility of incurring personal liability for breach of fiduciary duty provides a strong incentive for directors to *1286 use poison pills only to defeat inadequate offers. In fact, a 1988 study conducted by Georgeson & Company, Inc., a leading proxy solicitation firm, found that target corporations with poison pills received an average final offer 78.5% greater than the price of its stock six months before the commencement of the tender offer, while corporations without poison pills gained only 57%. See Fogg & Sterling, Poison Pill Update, in M. Katz & R. Loeb, Acquisitions and Mergers 1988 817, 844 (1988). Furthermore, the study revealed that target corporations with poison pills outperformed the S & P 500 Index by 53%, while corporations with no poison pills performed only 31% better than the Index. Id. at 845. Provided that directors utilize poison pills in the best interests of the corporation, as Virginia's Poison Pill Statute requires, poison pills may be an effective method for increasing the bid in tender offers.
Reviewing director conduct pursuant to the above three statutes, using the Business Judgment Statute, also does not cause the Virginia statutory "scheme" to be preempted. Directors must act based on their good faith business judgment of the best interests of the corporation. See Va. Code § 13.1-690. Tyson asserts that directors wishing to defeat a hostile tender offer need only hear advice from competent sources and their decisions become insulated from judicial scrutiny. The court disagrees. Courts must look to procedural indicia of good faith business judgment; resort to an informed decisionmaking process must be undertaken in good faith. WLR Foods, Inc. v. Tyson Foods, Inc., 857 F.Supp. 492, 497 (W.D.Va.1994). Directors are entitled to rely on competent advice, not to hear and disregard it just to go through the motions of satisfying § 690. This prevents directors from attempting to defeat a tender offer unless they rely in good faith on competent advice and information stating that the offer is not in the best interests of the corporation. Although the court expresses no opinion concerning whether WLR's directors complied with § 690 in attempting to defeat Tyson's tender offer, the statute itself does not stand as an obstacle to the purposes and objectives of the Williams Act, even when used in conjunction with the other three statutes at issue.[9] Management still is unable to interfere with investors' free exercise of an informed choice in responding to a tender offer.[10]
The Virginia statutory "scheme" makes tender offers for Virginia corporations more difficult than they would be absent the statutes. Although the statutes seem to give power to management with the same hand that takes it away from offerors, they do not do so to the detriment of investors. The Williams Act does not grant investors a right to tender their shares at a premium; it merely provides that certain information must be provided and certain procedures must be followed to ensure that investors are permitted to make an informed choice. The cumulative effect of the Virginia statutes does not interfere with those objectives in any way. As a result, the Williams Act does not preempt the Virginia statutes, either separately or together.
V.
The court next must decide whether the Virginia statutes violate the Commerce Clause of the United States Constitution, *1287 U.S. Const. art. 1, § 8, cl. 3. Although on its face the Commerce Clause merely gives Congress the power to regulate commerce among the states, "it has been settled for more than a century that the Clause prohibits States from taking certain actions respecting interstate commerce even absent congressional action." CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 87, 107 S.Ct. 1637, 1648, 95 L.Ed.2d 67 (1987). Tyson asserts that the Virginia statutes violate the dormant Commerce Clause in two ways. First, Tyson argues that the statutes clearly discriminate against interstate commerce and are not justified by a valid purpose unrelated to economic protectionism. See C & A Carbone, Inc. v. Town of Clarkstown, ___ U.S. ___, ___, 114 S.Ct. 1677, 1682, 128 L.Ed.2d 399 (1994). Secondly, Tyson contends that the statutes impose a burden on interstate commerce that exceeds the statutes' putative local benefits. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).
As an initial matter, there can be no doubt that the Virginia statutes affect interstate commerce. "It is well settled that actions are within the domain of the Commerce Clause if they burden interstate commerce or impede its free flow." Carbone, ___ U.S. at ___, 114 S.Ct. at 1682 (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 31, 57 S.Ct. 615, 621, 81 L.Ed. 893 (1937)). The Virginia statutes clearly do so by affecting the interstate market for corporate control. In fact, this principle was so obvious to the Supreme Court in CTS that it did not bother to say so; it simply considered whether the statute at issue violated the Commerce Clause. See CTS, 481 U.S. at 87, 107 S.Ct. at 1648.
A.
The first way in which Tyson contends that the Virginia statutes violate the Commerce Clause is by discriminating against interstate commerce. There is no dispute that the Virginia statutes treat in-state and out of state tender offerors the same way; the statutes apply regardless of who tries to take over a Virginia corporation. Statutes may discriminate, however, even if they treat instate and out of state offerors equally. See Carbone, ___ U.S. at ___, 114 S.Ct. at 1682. Tyson asserts that the statutes discriminate against interstate commerce because they impose an effective ban on interstate commerce in corporate control of Virginia corporations. To prevail on this issue, Tyson attempts to position this case within the line of cases culminating in Carbone.
In Carbone, the Supreme Court analyzed a local ordinance that required all nonhazardous solid waste in Clarkstown, New York to be taken to a transfer station for separation of recyclable from non-recyclable items. Id. at ___, 114 S.Ct. at 1680. All waste processors, whether in-state or out of state, were prohibited from processing solid waste anywhere other than at the designated transfer station, where they were required to pay a tipping fee even if the waste had already been sorted before arriving at the station. Id. at ___, 114 S.Ct. at 1681. The Court held that the ordinance violated the Commerce Clause because it hoarded a local resource and squelched all competition for separating recyclable from non-recyclable waste. Id. at ___, 114 S.Ct. at 1683. See also Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, ___ U.S. ___, 112 S.Ct. 2019, 119 L.Ed.2d 139 (1992) (invalidating a statute prohibiting landfill operators from accepting solid waste generated outside of the county because of the statute's protectionist nature); Dean Milk Co. v. Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 297, 95 L.Ed. 329 (1951) (invalidating an ordinance that made it unlawful to sell milk as pasteurized unless it was processed within five miles of the city because the ordinance protected a local industry from any competition from out of state); Brimmer v. Rebman, 138 U.S. 78, 82-83, 11 S.Ct. 213, 214, 34 L.Ed. 862 (1891) (invalidating a Virginia statute imposing special inspection fees on meat from animals slaughtered more than 100 miles from the place of sale because the statute effectively prevented the sale of meat from animals slaughtered in distant states).
The Virginia statutes do not have the same effect as the statutes struck down in the Carbone line of cases. By Tyson's own admission, these case stand for the proposition *1288 that a statute clearly discriminates against interstate commerce if it completely eliminates the flow of interstate commerce in an article of commerce. Tyson's Supp. Mem. on Constit. Issues at 30. The Virginia statutes do not completely eliminate the flow of interstate commerce in hostile takeover attempts of Virginia corporations. More to the point, they do not remove competition for corporate control or hoard a local resource. Any potential acquiror that makes an adequate offer may gain control of a Virginia corporation; the Virginia statutes make it more expensive to do so.
In the Carbone line of cases, similarly situated entities were treated differently. In Carbone, ___ U.S. ___, 114 S.Ct. 1677, one transfer station could separate waste, but others could not do so. In Fort Gratiot, ___ U.S. ___, 112 S.Ct. 2019, some solid waste producers could dump their waste, but others could not do so. In Dean Milk, 340 U.S. 349, 71 S.Ct. 295, some producers could sell their milk as pasteurized, but others could not do so. In Brimmer, 138 U.S. 78, 11 S.Ct. 213, some dealers could sell their meat without a special fee, but others could not do so. In this case, however, everyone stands on equal footing in making tender offers to shareholders of Virginia corporations. As the Supreme Court stated, "[b]ecause nothing in the [statutes] imposes a greater burden on out-of-state offerors than it does on similarly situated [in-state] offerors, we reject the contention that the [statutes] discriminate[] against interstate commerce." CTS, 481 U.S. at 88, 107 S.Ct. at 1649.[11]
B.
The second way in which Tyson contends that the Virginia statutes violate the Commerce Clause is pursuant to the balancing test enunciated in Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). Pursuant to the Pike test, the Virginia statutes violate the Commerce Clause if they impose a burden on interstate commerce that clearly exceeds their putative local benefits. See id. at 142, 90 S.Ct. at 847. WLR asserts, however, that the Pike test no longer applies to Commerce Clause challenges to state laws regulating intrastate corporate governance, based on the Supreme Court's treatment of the issue in CTS. In that case, the Court rejected the argument that Indiana's Control Share Act violates the Commerce Clause because of its potential to hinder tender offers, but it did so without ever mentioning the Pike test. See CTS, 481 U.S. at 89-92, 107 S.Ct. at 1649-51. This has caused some courts to conclude that the Pike test no longer applies in this area. See, e.g., Amanda Acquisition Corp. v. Universal Foods, Inc., 877 F.2d 496, 507 (7th Cir.1989); Hyde Park Partners, L.P. v. Connolly, 839 F.2d 837, 844 (1st Cir.1988). Although the Court did not mention Pike by name, it examined tender offers' effect on interstate commerce and the local interests that Indiana sought to advance through the Control Share Act. Id. Without explicitly referring to Pike, the Court implicitly found that a state's interests in defining the attributes of corporations organized pursuant to its laws were sufficient to justify any burdens on interstate commerce associated with the Control Share Act. Although the Pike test may not have been used in name, its logic was used in principle.
In examining the Virginia statutes' effect on interstate commerce, Tyson asserts that they violate the Commerce Clause by effectively foreclosing the opportunity to gain control of a Virginia corporation absent consent of the management. In this area, however, "state regulation of corporate governance is regulation of entities whose very existence and attributes are a product of state law." CTS, 481 U.S. at 89, 107 S.Ct. at 1649. By enacting these and other statutes, Virginia has defined the attributes of its corporations. Based upon the four Virginia statutes, a Virginia corporation is an entity (1) in which shareholders holding over one-fifth of the shares have no voting rights absent consent of the directors or the disinterested shareholders (Control Share Act); (2) that cannot be merged into another entity for three years *1289 without consent of its directors (Affiliated Transactions Act); (3) that can issue discriminatory rights to the detriment of some of its shareholders, provided that such discrimination is in the best interests of the corporation (Poison Pill Statute); and (4) whose directors must conduct themselves based upon their good faith business judgment of the best interests of the corporation, and who may satisfy this standard by relying in good faith on competent advice received pursuant to an informational process undertaken in good faith (Business Judgment Statute).
"By prohibiting certain transactions, and regulating others, such laws necessarily affect certain aspects of interstate commerce." Id. at 90, 107 S.Ct. at 1650. The Virginia statutes make it more difficult and more expensive to gain control of a Virginia corporation, but so do supermajority voting requirements, dissenters' rights, and staggered directors' terms. See id. at 90 & n. 12, 107 S.Ct. at 1650 & n. 12. In fact, states could ban mergers completely without violating the Commerce Clause. Louisville & Nashville R.R. v. Kentucky, 161 U.S. 677, 701-04, 16 S.Ct. 714, 723-24, 40 L.Ed. 849 (1896); Amanda, 877 F.2d at 506.
In defining the attributes of its corporations, Virginia "has an interest in promoting stable relationships among parties involved in the corporations it charters, as well as in ensuring that investors in such corporations have an effective voice in corporate affairs." CTS, 481 U.S. at 91, 107 S.Ct. at 165. Through the four statutes at issue, Virginia has given certain tools to shareholders and management, acting in the best interests of the corporation, to ensure that tender offers succeed only if they are consistent with the long-term interests of the corporation. Shareholders of Virginia corporations need not fear the coercive pressures of two-tiered tender offers or the prospect of corporate raiders seeking to extract greenmail by threatening to immediately dismantle and sell a corporation's assets.
Virginia need not define its corporations as other states do; it must only provide residents and nonresidents with equal access to them. Id. at 94, 107 S.Ct. at 1652. If Virginia believes that hostile tender offers have the potential to be harmful to the corporations that it creates and whose attributes it defines, then it is permitted to enact regulations designed to neutralize that harm. Tyson's argument that such a policy can lead to inefficient management would be better addressed to the Virginia legislature rather than this court. Whether these statutes may limit the number of successful tender offers does not substantially affect the Commerce Clause analysis. Id. at 93-94, 107 S.Ct. at 1651-52.
The Commerce Clause does not give Tyson a right to purchase WLR for $30 per share. It merely ensures that Tyson have a chance to do so equal to that of a Virginia resident offering $30 per share. The Virginia statutes do nothing to upset that equality. They make it more difficult for tender offerors, resident and nonresident alike, to gain control of a Virginia corporation. As a result, Tyson is unlikely to succeed on the merits of its Commerce Clause challenge.
VI.
The Virginia statutes, even when viewed as a scheme, are not preempted by the Williams Act and do not violate the Commerce Clause. Whatever the merits or demerits of discouraging tender offers, the Constitution is not concerned with the wisdom of economic policy. "The Constitution does not require the States to subscribe to any particular economic theory." Id. at 92, 107 S.Ct. at 1651. Based on analysis of the four Blackwelder factors, Tyson's motion for a preliminary injunction is denied.
An appropriate Order shall this day issue.
NOTES
[1] An affiliated transaction includes (1) a merger involving WLR and Tyson; (2) a share exchange in which Tyson acquires a class or series of voting shares of WLR; (3) disposition to Tyson of WLR's assets in excess of five percent of WLR's net worth, or any guaranty by WLR of Tyson's indebtedness in excess of five percent of WLR's net worth; (4) disposition to Tyson of more than five percent of the fair market value of voting shares in WLR; (5) dissolution of WLR if proposed by Tyson; and (6) any transaction which has the effect of increasing by more than five percent the percentage of voting shares in WLR owned by Tyson. Va.Code Ann. § 13.1-725 (Michie 1993).
[2] "Disinterested directors" essentially is defined to consist of WLR directors who were directors before Tyson acquired WLR. Id.
[3] The "meaningful opportunity for success" test also has been used by a few district courts in deciding whether the Williams Act preempts state statutes. See, e.g., Topper Acquisition Corp. v. Emhart Corp., No. 89-00110-R, 1989 U.S.Dist. LEXIS 9910, at *12 (E.D.Va. Mar. 23, 1989) ("[T]he Williams Act preempts state anti-takeover statutes which deprive a hostile bidder of a `meaningful opportunity for success.'"); West Point-Pepperell, Inc. v. Farley, Inc., 711 F.Supp. 1096, 1103 (N.D.Ga.1989) (finding preemption if a statute leaves a hostile offeror with no meaningful opportunity for success absent approval from the board that it seeks to replace); BNS, Inc. v. Koppers Co., Inc., 683 F.Supp. 458, 469 (D.Del.1988) (creating the meaningful opportunity for success test).
[4] Neither the plurality in MITE nor the Court in CTS questioned any part of Piper.
[5] The Court in CTS noted that it was not bound by the reasoning in MITE because it was not a majority opinion. It stated that "[w]e need not question that reasoning, however, because we believe the [statute] passes muster even under the broad interpretation of the Williams Act articulated by Justice White in MITE." CTS, 481 U.S. at 81, 107 S.Ct. at 1645.
[6] Assuming 10,000,000 shares in WLR outstanding with a value of $30 per share, Tyson would need to hold approximately eighty-five percent of WLR shares after the tender offer in order to retain a majority after the poison pill triggered.
[7] The control share acquisition statement provides shareholders with even more information than is required by the Williams Act. Compare Va.Code § 13.1-728.4 with 15 U.S.C. § 78n(d)(1) and 17 C.F.R. §§ 240.13d-1, 240.14d-3.
[8] Tyson also asserts that the Control Share Act is preempted by Section 14(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78n, because § 14(a) occupies the field of the regulation of proxy solicitation. The court finds no evidence in § 14(a) that Congress intended to do so. Moreover, the Control Share Act does not seek to regulate the process of proxy solicitation, which is the focus of § 14(a); rather, it merely affects the timing of when solicitation may begin. See Va.Code Ann. § 13.1-728.5(E) (Michie 1993). Tyson further contends that the Control Share Act is preempted because § 13.1-728.4(6) requires more information to be sent to shareholders than the SEC mandates. In light of the above discussion concerning the fundamental purpose of the Williams Act, such a contention is without support.
[9] Management's compliance with its fiduciary duties does not affect the constitutional issues presented.
In the unlikely event that management were to take actions designed to diminish the value of the corporation's shares, it may incur liability under state law. But this problem does not control our pre-emption analysis. Neither the [Williams] Act nor any other federal statute can assure that shareholders do not suffer from the mismanagement of corporate officers and directors.
CTS, 481 U.S. at 85 n. 9, 107 S.Ct. at 1647 n. 9.
[10] Because the Business Judgment Statute requires directors to act in the best interests of the corporation, it also ensures that Virginia's statutory "scheme" passes Tyson's broad "meaningful opportunity for success" test. All that an offeror must do in order to have a meaningful opportunity for success is present a high enough offer, acceptance of which is in the best interests of the corporation. Directors then could opt out of the Control Share Act and redeem the poison pill. Furthermore, if they believed that an immediate merger was in the best interests of the corporation, they could vote to override the restrictions of the Affiliated Transactions Act and encourage shareholders to do the same.
[11] In CTS, the Court did not even address the Carbone line of cases, amplifying the distinction between the regulations struck down in those cases and statutes that evenhandedly regulate tender offers. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261573/ | 428 A.2d 1114 (1981)
Shirley M. HESS
v.
George H. HESS.
No. 402-79.
Supreme Court of Vermont.
February 5, 1981.
*1115 Arthur J. O'Dea, Manchester, for plaintiff.
Richard J. Wright, Poultney, for defendant.
Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SHANGRAW, C. J., (Ret.), Specially assigned.
HILL, Justice.
This case emanates from over six years of legal disputes involving a marriage which ended in divorce.
The judgment order, entered in June 1974, granted custody of the parties' minor children to the plaintiff, Shirley M. Hess, and the defendant was ordered to pay alimony and child support. About ten months later, the defendant moved for modification of the court order and the plaintiff followed with a motion for contempt. The defendant in June 1975 was found in willful contempt, ordered to recompense $1075.00, and the original judgment order was modified.
In September 1976, the parties executed and filed with the Bennington Superior Court a document, which lies at the heart of the present dispute, releasing the defendant from all existing and future obligations. The document was prepared and signed without either party consulting an attorney, and although it was filed with the clerk of the court a court order was never issued.
*1116 In March 1978, the plaintiff brought another motion for contempt. The court denied the motion but ordered defendant to make payments totaling $7,025.00. Citing inconsistencies in the findings, we reversed and remanded for a new hearing with leave for the defendant to present a motion for modification. Hess v. Hess, 137 Vt. 290, 402 A.2d 750 (1979).
The trial court on remand held that the document did not constitute release of the defendant's obligations. The court found that the plaintiff was subjected to mental stress and harassment by the defendant and that the document resulted from undue duress. The court also found the defendant was able to pay the court-ordered alimony and was in willful contempt. The plaintiff was found to be entitled to a writ of execution for $18,425.00. The defendant's motion for modification was denied.
The defendant argues on appeal that the trial court's findings are unsupported by the evidence and that enforcement of the order would be inequitable. We disagree, and affirm.
This Court will not set aside findings of fact unless, taking the evidence in the light most favorable to the prevailing party and excluding the effect of modifying evidence, they are clearly erroneous. Brown v. Town of Windsor, 139 Vt. 129, 422 A.2d 1268 (1980); Gerety v. Gerety, 131 Vt. 396, 401, 306 A.2d 693, 695 (1973).
Although we generally favor contractual agreements between parties to a divorce proceeding and encourage parties to fashion mutually satisfying resolutions, see Strope v. Strope, 131 Vt. 210, 303 A.2d 805 (1973), the evidence in the present case dictates a different course of action. A review of the testimony reveals that the defendant drew the release agreement and contacted the plaintiff constantly demanding her concurrence, thereby causing great stress. The plaintiff was without legal counsel, and testimony at the trial indicated that she did not understand the effect of the document when she signed.
Given this supporting evidence we cannot say that the trial court was in error in finding that the defendant coerced the plaintiff into signing the release.
The defendant, citing LaVoice v. LaVoice, 125 Vt. 236, 214 A.2d 53 (1965), claims that ordering payment of the arrearage constitutes an unconscionable burden on him. LaVoice involved a contempt proceeding and held that a debtor could not be jailed for refusing to reimburse monies owed pursuant to a divorce order which could not reasonably be afforded. In such circumstances a party may be required to pay only a portion of the sum, but without excusing the remainder of the debt. Here, although contempt was found, the judgment was not enforced by the contempt process. The trial court found the arrearage to be reasonable and permitted execution to issue as in any suit on a contract. We will not disturb this finding. See 15 V.S.A. § 760.
The defendant also invokes the equitable doctrine of promissory estoppel to challenge the trial court's order. He claims that the plaintiff's delay in attempting to collect alimony and support payments now precludes her from successful court action. Given the valid findings below concerning the unconscionable methods used to secure the release document which lies at the center of this appeal, it would be anomalous to find for the defendant on the estoppel issue.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261582/ | 428 A.2d 1155 (1981)
Melvin PUSEY, Claimant, Appellant,
v.
NATKIN & COMPANY, Employer, Appellee.
Supreme Court of Delaware.
Submitted March 9, 1981.
Decided April 7, 1981.
John J. Schmittinger (argued) and Douglas W. Lundblad, of Schmittinger & Rodriguez, P. A., Dover, for claimant, appellant.
Robert W. Ralston (argued), of Prickett, Jones, Elliott & Kristol, Wilmington, for employer, appellee.
Before HERRMANN, C. J., DUFFY and QUILLEN, JJ.
*1156 DUFFY, Justice:
Melvin Pusey (claimant) appeals from a Superior Court order which reversed in part a decision of the Industrial Accident Board (Board) awarding permanent partial disability benefits. We affirm the judgment of the Superior Court.
I
On March 24, 1976, while employed as a millwright by Natkin & Company (employer), Pusey sustained an on-the-job injury to his back. After a myelogram had indicated herniation of a spinal disc, Pusey underwent surgery in May 1976 for removal of the damaged disc and for a spinal fusion of three other vertebrae. He continued to suffer pain and, consequently, a second myelogram was performed in the fall of 1977. Exploratory surgery followed in December 1977, but pseudoarthrosis[1] was not discovered in the area of the spinal fusion. Pusey's pain persisted and so he sought a second opinion from Dr. John T. Hogan, who is an orthopedic surgeon. Dr. Hogan examined Pusey on August 21, 1978 and found a degree of permanent disability to the back. In December 1978, Pusey filed a petition with the Board for permanent disability benefits under 19 Del.C. § 2326(h).
Dr. Hogan was the only witness at the Board hearing, which was held on May 17, 1979. Based on medical reports, he testified to the above facts about Pusey's medical history. Dr. Hogan also testified that his examination in August 1978 established a fifty percent permanent partial disability but that, in his opinion, the permanency of Pusey's injury predated the second surgery which was performed in December 1977.
The Board found that Pusey's injury did not become permanent until August 1978 and, accordingly, awarded him compensation at the rate of two-thirds of his weekly wage, that is, at the rate provided by an amended version of § 2326(h) which became effective July 12, 1978. The Superior Court reversed, holding that, in light of Dr. Hogan's testimony, the Board's finding of permanency after and not before July 12, 1978 was unsupported by substantial evidence. The Court thus sustained Pusey's right to compensation but at a lower rate, that is, at the rate fixed by the pre-amendment version of § 2326(h). Pusey then docketed this appeal.
II
Before July 12, 1978, 19 Del.C. § 2326(h) provided for a maximum payment of $75. per week for permanent partial injuries to the back. The General Assembly amended that provision, effective July 12, 1978, to permit a higher rate of compensation for a claimant suffering permanent injuries after that date; specifically, up to "662/3% of the average weekly wage per week as announced by the Secretary of Labor for the *1157 last calendar year for which a determination of the average weekly wage has been made ...." 61 Del.Laws c. 515, § 2.
Both parties agree that the Statute in effect at the time an injury becomes permanent governs the respective rights and obligations of an employer and employee. Peters v. Chrysler Corp., Del.Supr., 295 A.2d 702 (1972). Hence, in order to determine whether the original or the amended version of § 2326(h) applies to this case (and, thus, fixes the rate of compensation), we must determine from the record at what point in time Pusey's injury became permanent.
A.
Pusey urges this Court to follow the rationale adopted in a Rhode Island case in determining the time of permanency, LeBrun v. Woonsocket Spinning Co., Inc., 106 R.I. 253, 258 A.2d 562 (1969), a rationale which he says we approved in Peters. The LeBrun Court held that permanency is established "when sound medical opinion takes the position that science can do no more." Id. at 564-65. In the instant case, since medical treatment (and hope for recovery) was not finally concluded until the August 1978 examination by Dr. Hogan, Pusey says his injury was not permanent until after the July 12, 1978 amendment to § 2326(h).
We recently rejected a similar contention in Cooper v. Chrysler Corp., Del. Supr., 426 A.2d 322 (1981), and we briefly reiterate that position here. In our view, Pusey misreads the Peters decision. If it is not clear there, we hope to make clear here that determination of the date on which permanency first becomes fixed is a medical question to be decided on the basis of expert medical testimony. Dr. Hogan's unrebutted testimony that the injury was permanent prior to July 1978 meets that standard and, thus, the date on which Pusey last received medical treatment is not controlling evidence in this case.
Claimant next contends that the Board, as trier of fact, is free to decide which medical evidence to accept and which to reject. Sears, Roebuck and Co. v. Farley, Del.Supr., 290 A.2d 639 (1972). Characterizing Dr. Hogan's testimony regarding the permanency of the injury prior to July 12, 1978 as speculative and without the necessary reasonable medical certainty, General Motors Corp. v. Freeman, Del.Supr., 3 Storey 74, 164 A.2d 686 (1960), Pusey says the Board was free to reject that opinion and accept, instead, the date permanency was established by the post-amendment examination.
Our review of the record indicates the contrary: Dr. Hogan's testimony was based on his experience, his examination of Pusey and his review of the medical reports; and when questioned by claimant's counsel, he gave his opinion on the basis of reasonable medical certainty. In our view, then, Dr. Hogan's opinion that claimant's injury was permanent prior to the second surgery constituted competent, unrebutted medical evidence which the Board could not ignore. It follows that the Superior Court was correct in concluding that there was not substantial evidence to support the Board's ruling that the injury first became permanent after July 12, 1978 and not before. Windsor v. Bell Shades and Floor Coverings, Del.Supr., 403 A.2d 1127 (1979); Johnson v. Chrysler Corp., Del.Supr., 213 A.2d 64 (1965). Accordingly, we hold that Pusey is entitled to compensation but at the rate provided by § 2326(h) before the July 12, 1978 amendment.
B.
Lastly, in support of reversal, Pusey points to a Board guideline, promulgated on August 24, 1978, which constitutes its interpretation of § 2326(h), as amended:
"The Board will use the earliest date a competent examining or treating physician determines a percentage of permanency to the injured portion(s) of the claimant's body."
Claimant says that this guideline is a rule of procedure under which the Board will not find credible a physician's testimony concerning a claimant's condition before the *1158 physician has examined or treated the claimant (i. e., Dr. Hogan's opinion that claimant's injury was permanent long before the August 1978 examination).[2] And, since the Board has the power, under 19 Del.C. § 2121(a), to promulgate such a rule of procedure, the argument goes, its application to the facts of this case produced an evidentiary basis to support its finding that claimant's injury was permanent after and not before the July 12, 1978 amendment to § 2326(h).
We do not express a view on the accuracy of claimant's construction of the Board's somewhat ambiguous guideline because we disapprove of the guideline itself. In our opinion, it is arbitrary and would exclude any consideration of otherwise competent expert testimony (such as Dr. Hogan's). Cf. Carroll v. Tarburton, Del.Super., 209 A.2d 86, 88-89 (1965); National Vulcanized Fibre Co. v. Unemployment Comp. Comm'n., Del.Super., 7 Terry 229, 82 A.2d 725, 729 (1951).
In sum, we decline to give effect to the Board's guideline and we agree with the Superior Court's judgment that the Board's finding of permanency after and not before the effective date of the § 2326(h) amendment is unsupported by substantial evidence in the record.
* * * * * *
Affirmed.
NOTES
[1] Pseudoarthrosis is the medical term for false motion or false joint which may result from an unsuccessful spinal fusion.
[2] The Board followed its announced guideline in this case, saying:
"Dr. Hogan first saw the claimant August 1, 1978. The Board thus found the permanency rating became fixed on that date." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261598/ | 861 F.Supp. 773 (1994)
ZUMBRO, INC., Plaintiff,
v.
CALIFORNIA NATURAL PRODUCTS, and Imagine Foods, Inc., Defendants.
Civ. No. 3-93-715.
United States District Court, D. Minnesota, Third Division.
August 8, 1994.
*774 *775 Robert T. Edell, Alan W. Kowalchyk, and David K. Tellekson, Merchant, Gould, Edell, Welter & Schmidt, Minneapolis, MN, for plaintiff.
Charlene M. Morrow and David W. Slaby, Fenwick & West, Palo Alto, CA, and Stephen J. Davidson, Leonard, Street & Deinard, Minneapolis, MN, for defendants.
MEMORANDUM OPINION AND ORDER
KYLE, District Judge.
Introduction
Plaintiff Zumbro, Inc. ("Zumbro") commenced this declaratory judgment, interference with business relationships, and trademark infringement action against defendants California Natural Products ("CNP") and Imagine Foods, Inc. ("Imagine"); it seeks, inter alia, a declaration of noninfringement, invalidity, and unenforceability of United States Patent Numbers 4,894,242 ("242 Patent"), 4,744,992 ("992 Patent"), and 4,876,096 ("096 Patent"). Before the Court is the Defendants' Motion, pursuant to Fed.R.Civ.P. 12(b)(2) and (3), and 19, to Dismiss Zumbro's claims against (a) CNP for lack of personal jurisdiction and improper venue, (b) Imagine for improper venue and failure to join an indispensable party.
Background
The Parties
The Defendants are both California corporations that have their principal places of business in California; CNP's is located in Lathrop, California, and Imagine's is located in the San Francisco Bay Area.
Zumbro is a Minnesota corporation; its principal place of business is in Hayfield, Minnesota. Zumbro is principally engaged in manufacturing food ingredient products and selling them to food manufacturers. Its products include rice-based ingredients such as Rice Trin 30 ("Rice Trin") which is a food additive and Rice Beverage Base Dry Mix ("Rice Mix") which is a beverage ingredient.
The Patents
The patents at issue in this litigation are (a) the 242 Patent, which describes a "Nutritional Rice Beverage Product," (b) the 992 Patent, which describes the process for manufacturing the products covered by the 242 Patent, and (c) the 096 Patent, which describes rice syrup solids products.[1] CNP and Imagine are co-owners of the 242 Patent *776 and the 992 Patent, whereas CNP is the sole owner of the 096 Patent.
All of the rice beverage bases and premixes CNP makes are covered by the 242 Patent and 992 Patent. Morrow Dec., ¶ 6. All of the rice syrup products CNP promotes and sells are covered by the 096 Patent. Id. ¶ 5.
CNP's Contacts with Minnesota
CNP is not licensed to do business in Minnesota. It has no employees or agents in this state and neither owns nor leases any real or personal property here. It does not advertise in publications that are published in Minnesota; however, it does advertise in nationally distributed food industry journals[2] that are distributed in Minnesota.[3] In addition, CNP's computerized mailing list includes the names of over seventy-five persons and businesses located in Minnesota.[4]
CNP has not sold any rice beverage products covered by the 242 Patent and 992 Patent in Minnesota; however, it does supply rice beverage pre-mix to Imagine, which sells a rice beverage containing that pre-mix in Minnesota. In contrast, CNP has sold products covered by the 096 Patent to seven customers located in Minnesota; two of those customers made one-time-only purchases, and two others purchased on only two occasions. The sales totalled .7% of CNP's total sales revenues. None of those products competes with the rice syrup products Zumbro manufactures and about which CNP and Imagine have been concerned. CNP has also sold products in Minnesota that are not covered by any of the patents at issue.[5]
In addition, CNP has, on two occasions one in 1991, the other in 1992 sent partially polished brown rice syrup solids (products covered by the 096 Patent) to Marshall Labs in Hopkins, Minnesota, for spray drying and packaging. CNP engaged Marshall Labs' services as a part of selling those rice syrup products to an entity located in New Hampshire. On another occasion, CNP sent Marshall Labs a sample of ultra-high maltose rice syrup (another 096 Patent-related product) in order that Marshall Labs could test its ability to spray dry that product. Hall Dep., at 133.
Finally, CNP has sent to Minnesota literature about, and samples of, products covered by the 096 Patent. In addition, representatives of CNP attended an industry trade convention in Minnesota in the fall of 1992, at which they (a) displayed samples of products covered by the 096 Patent, (b) offered literature concerning those products, and (c) met with representatives of companies located in Minnesota. Hall Dep., at 47-50.
Letters Concerning the Patents
On May 21, 1991, counsel for CNP sent a letter to IHP, Inc.[6] stating that it believed that certain of the products and production methods IHP, Inc. was utilizing on Zumbro's behalf violated specific patents CNP owned, including the 096 patent. On June 4, 1991, counsel for Zumbro transmitted a response, denying that its manufacturing processes violated any of CNP's patents.
Two years later, on June 11, 1993, counsel for CNP and Imagine sent Zumbro a letter stating that they believed that Zumbro's Rice Trin and Rice Mix, as well as the methods used to produce them, infringed on the 242 Patent, the 992 Patent, and the 096 Patent. The letter demanded that Zumbro respond by June 25, 1993 with written notice that it had "ceased and desisted" from making, using, *777 or selling the allegedly infringing products.
On June 29, 1993, counsel for CNP and Imagine sent letters to two of Zumbro's customers, Healthco International, located in Bloomingdale, Illinois, and Lipscomb Chemical, located in Long Beach, California. The letters (a) notified the customers of the 242 Patent, 992 Patent, and 096 Patent, (b) stated that CNP and Imagine had informed Zumbro that it likely was infringing the patents, (c) stated that they intended to "aggressively" pursue any infringement of its patents, and (d) informed the customers that federal "patent laws make liable for patent infringement those who make, use or sell a patented invention, practice a patented process, or either induce or contribute to infringement."
The Litigation
Count I of the Complaint is brought under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1988); Zumbro seeks an order declaring that (a) the 242 Patent, 992 Patent, and 096 Patent are invalid, or (b) Zumbro's manufacture of Rice Trin and Rice Mix has not infringed any of those patents. In Count II, Zumbro contends that the letters CNP and Imagine sent to its customers in Illinois and California contained false statements that the Defendants knew were false and were sent for the purpose of interfering with Zumbro's business relationships and prospective business advantage. In Count III, Zumbro alleges that the acts alleged in Count II did, or were likely to, deceive its customers about the fact of patent infringement and violated the Lanham Act, 15 U.S.C. § 1125(a) (1988).
Discussion
I. Standards Governing Personal Jurisdiction
Ordinarily, a two-step test is used to determine whether personal jurisdiction may properly be exercised over a non-resident defendant:[7] (1) is the exercise of jurisdiction permitted by the forum state's longarm statute; and (2) would the exercise of jurisdiction by the courts of the forum state comport with constitutional due process. Morris v. Barkbuster, Inc., 923 F.2d 1277, 1280 (8th Cir.1991). However, because Minnesota interprets its long-arm statute, Minn.Stat. § 543.19 subd. 1(b) (1992), to extend personal jurisdiction to the fullest extent permitted by due process,[8]see Valspar Corp. v. Lukken Color Corp., 495 N.W.2d 408, 411 (Minn.1992), "the inquiry collapses into a single question of whether exercising personal jurisdiction [in this case] comports with due process." Bell Paper Box, Inc., v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir. 1994); see Sybaritic, Inc. v. Interport Int'l, Inc., 957 F.2d 522, 524 (8th Cir.1992).[9]
*778 The Due Process Clause requires that a nonresident defendant have sufficient "minimum contacts" with the forum state before the latter may exercise jurisdiction over the former. Bell Paper, 22 F.3d at 818. Sufficient contacts exist when "the defendant's conduct and connection with the forum State are such that [it] should reasonably anticipate being haled into court there," World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980), and the "reasonable anticipation" requirement is satisfied if the defendant has engaged in "`some act by which [it] purposefully avails itself of the privilege of conducting activities with the forum State, thus invoking the benefits and protections of its laws.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958)); see Soo Line R. Co. v. Hawker Siddeley Canada, Inc., 950 F.2d 526, 528-29 (8th Cir.1991). Even where sufficient contacts exist, however, due process still requires that "maintenance of the suit ... not offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)); see Burger King, 471 U.S. at 476, 105 S.Ct. at 2184.
"Specific jurisdiction" over a nonresident defendant is exercised where a court premises jurisdiction over a defendant upon the relationship between the plaintiff's claims and the defendant's forum state activities. Barkbuster, 923 F.2d at 1280. Where the plaintiff's claims "arise out of or are connected with the [defendant's] activities within the [forum] state," International Shoe, 326 U.S. at 319, 66 S.Ct. at 160, the defendant ordinarily should reasonably anticipate being "haled into court" in the forum. "Conversely, when the plaintiff's claims do not relate to the defendant's forum-state activities, jurisdiction is likely to be improper since the defendant `has no reason to expect to be haled before [the forum state's courts].'" Barkbuster, 923 F.2d at 1280 (quoting Toro Co. v. Ballas Liquidating Co., 572, F.2d 1267, 1271 (8th Cir.1978) (citation omitted)).
A court may also exercise jurisdiction over a nonresident defendant who has "continuous and systematic" contacts with the forum state, regardless whether the plaintiff's claim or claims are related to any of those contacts. Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 416, 418-19, 104 S.Ct. 1868, 1872-73, 1874-75, 80 L.Ed.2d 404 (1984). Exercising what is known as "general jurisdiction" over a nonresident defendant satisfies due process because a defendant whose contacts with the forum state are systematic and continuous should reasonably anticipate being haled into court there, even where the plaintiff's claims "neither arise out of nor are related to the defendant's contacts with the forum." Barkbuster, 923 F.2d at 1280 (citing Perkins v. Benguet Min. Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952)).
Five separate considerations are to be examined when determining whether the exercise of personal jurisdiction in any case comports with due process:
(1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties.
Land-O-Nod Co. v. Bassett Furniture Indus., 708 F.2d 1338, 1340 (8th Cir.1983); see also Falkirk Mining Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 374 (8th Cir.1990). These considerations incorporate the notions of both "minimum contacts" and "fair play and substantial justice." Sybaritic, Inc., 957 F.2d at 524. No one consideration is dispositive,[10]*779 and in every case, the focal relationship is "that among the defendant, the forum, and the litigation." Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977).
CNP[11] asserts that it is not subject to either this Court's specific or general personal jurisdiction on any of Zumbro's claims against it.
A. General Jurisdiction
As discussed above, CNP may be subject to this Court's general jurisdiction in any case if its contacts with Minnesota are of an amount and degree sufficient to be found "systematic and continuous." The Court has reviewed the facts in the record, assuming the facts asserted by Zumbro to be true and taking all inferences therefrom in its favor; CNP's contacts with Minnesota fall well short of the quantity and quality of contacts which would justify a conclusion that they are "continuous and systematic" as that term has been construed by Helicopteros and its progeny. See e.g., Doula v. United Technologies Corp., 759 F.Supp. 1377, 1380-81 (D.Minn.1991). Accordingly, this Court may not exercise general jurisdiction over CNP and the personal jurisdiction question at issue reduces itself to whether this Court may exercise specific jurisdiction over CNP. Because specific jurisdiction requires a nexus between the defendant's contacts with the forum state and the subject matter of Zumbro's claims in this litigation, it is necessary to address each of Zumbro's claims individually. See Barkbuster, 923 F.2d at 1281-82 (defendant's contacts with forum arising from contract for sale of product line disregarded when plaintiff's claim against the defendant related to negligent design of product).
B. Specific Jurisdiction
1. Patent Claims
Zumbro's patent claims in Count I seek relief in the form of an order declaring that (a) Rice Trin and Rice Mix do not infringe on the 992 Patent, 242 Patent, or 096 Patent, and (b) those patents are invalid, void, and unenforceable. Consequently, the subject matter of the declaratory judgment claims in Count I are the patents themselves, and the critical relationship under Shaffer and its progeny is that among CNP, Minnesota, and the patents that have been challenged. Land-O-Nod, 708 F.2d at 1342. With this relationship in mind, the Court turns to the Land-O-Nod factors.
a. quantity
The quantity of CNP's contacts with Minnesota, while not minuscule, are not substantial.[12] CNP's employees have been physically present in Minnesota on only one occasion, it has made a few, isolated sales of its products to customers located in Minnesota (the dollar amount of which is not compelling in light of CNP's total sales), it has on three occasions engaged a company located in Minnesota to process certain products, it has solicited sales of products by (a) advertising in national trade journals that are distributed in Minnesota, and (b) responding to inquiries about its products by sending information and/or product samples to persons and entities located in Minnesota. In addition, CNP has sent Zumbro two letters concerning its patents and Zumbro's potentially infringing products.
*780 b. nature and quality
The nature and quality of those contacts all reflect the reality that CNP has attempted and is still attempting to develop its business in Minnesota in a purposeful manner; however, its contacts with Minnesota have been inconsistent and somewhat attenuated. CNP does not maintain any physical presence in Minnesota, does not employee an agent in or for Minnesota, and owns no property and holds no accounts in Minnesota. In addition, CNP's one physical contact with Minnesota, the 1992 industry convention, was, at best, fortuitous; its employees came to Minnesota only because that is where the national trade convention was held that year. Nevertheless, CNP's promotion and sale of products in Minnesota, both of rice syrup products covered by the 096 Patent and others products not covered by any of the patents at issue, constitutes "voluntary, affirmative, economic activity" of some substance, see Aftanase v. Economy Baler Co., 343 F.2d 187, 197 (8th Cir.1965), all of which was protected by Minnesota law.
c. relationship
The relationship between CNP's contacts with Minnesota and Zumbro's declaratory judgment claim in Count I is not nonexistent, tangential. As discussed above, the subject matter of the claims asserted in Count I are the patents themselves and the material questions raised in Count I are whether (a) the patents are valid, and (b) if so, whether Zumbro infringed them. Consequently, Zumbro's claims in Count I neither arise out of nor relate to the activities in which CNP has engaged in order to exploit those patents, including producing and promoting products covered by the patents,[13]see Ham v. La Cienega Music Co., 4 F.3d 413, 416 (5th Cir.1993); indeed, Zumbro claims no injury flowing from CNP's production, marketing, and sale of its products. Accordingly, there does not appear to be any nexus between CNP's marketing and sale of its products in Minnesota and the subject matter of Zumbro's claims in Count I, which concern only the patents' validity and Zumbro's own actions; CNP's contacts with Minnesota likewise are not related to the "operative facts" of Zumbro's patent claims. See Rush v. Savchuk, 444 U.S. 320, 329, 100 S.Ct. 571, 578, 62 L.Ed.2d 516 (1980); Ham, 4 F.3d at 416; Barkbuster, 923 F.2d at 1282; Database America, Inc. v. Bellsouth Advertising & Pub. Corp., 825 F.Supp. 1195, 1214 (D.N.J. 1993); Ryobi America Corp. v. Peters, 815 F.Supp. 172, 176 (D.S.C.1993); KVH Indus. Inc. v. Moore, 789 F.Supp. 69, 71-72 (D.R.I. 1992); International Communications, Inc. v. Rates Technology, Inc., 694 F.Supp. 1347, 1352 (E.D.Wis.1988).
The Court also concludes that CNP's acts of sending the two letters to Zumbro are unrelated to the subject matter of Zumbro's declaratory judgment claims in Count I. See Unistrut Corp. v. Baldwin, 815 F.Supp. 1025, 1027 (E.D.Mich.1993); BIB Mfg. Co. v. Dover Mfg. Co., 804 F.Supp. 1129, 1133 (E.D.Mo. 1992); KVH Indus., 789 F.Supp. at 71. Although an infringement letter might "give rise" to a declaratory judgment action such as that alleged in Count I, it does so only in the sense that receiving such a letter may create a controversy motivating the accused infringer to commence an action to declare its rights. Such letters have no bearing on, i.e., are unrelated to, the subject matter of the subsequent claim: is the patent valid and, if so, have the plaintiff's acts infringed it.[14]See Amway Corp. v. Kope Food Products, 840 F.Supp. 78, 81 (W.D.Mich.1993); *781 BIB Mfg., 804 F.Supp. at 1133; KVH Indus., 789 F.Supp. at 71. In addition, CNP's act of sending an infringement letter to Zumbro was an exercise of its rights under federal patent laws;[15] doing so should not subject it to suit in any forum wherein it finds a party allegedly infringing its patents.[16]See BIB Mfg., 804 F.Supp. at 1133; International Communications, Inc. v. Rates Technology, Inc., 694 F.Supp. 1347, 1352 (E.D.Wis.1988).
Finally, the infringement letters combined with the quantum of unrelated contacts CNP has had with Minnesota does not support the exercise of specific jurisdiction over CNP by a Minnesota court. Although Zumbro relies on B & J Mfg. Co. v. Solar Indus., Inc., 483 F.2d 594 (8th Cir.1973), cert. denied, 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed.2d 473 (1974), as authority for asserting that unrelated contacts can be the basis of exercising personal jurisdiction over a nonresident defendant in a declaratory judgment action, the Eighth Circuit, in Land-O-Nod, excavated and hauled away nearly all, if not all, of the foundation for the holding in B & J:
To the extent that the court in B & J addressed the issue of due process, it concluded that "the quality, quantity and nature of the defendant's contacts with the jurisdiction are substantial" and therefore due process was satisfied. The court did not specifically discuss in its due process analysis the relationship of the cause of action to the forum. Shaffer v. Heitner and the other Supreme Court cases decided after B & J make clear that some nexus between the forum and the subject matter of the litigation is required to satisfy due process.
708 F.2d at 1342-43 (internal citations omitted).[17]
CNP's ownership of the patents in question is not in any way related to CNP's contacts with Minnesota. See Ryobi America Corp. v. Peters, 815 F.Supp. 172, 176 (D.S.C.1993); KVH Indus., Inc. v. Moore, 789 F.Supp. 69, 71-72 (D.R.I.1992). Because there is scant, if any, relation between the subject matter of Zumbro's patent claims in Count I and CNP's contacts with this forum, a balancing of the Land-O-Nod factors[18] does not support a determination that this Court may exercise specific personal jurisdiction over CNP on Zumbro's patent claims in Count I. Accordingly, those claims will be dismissed as against CNP.
2. Interference with Business Relations
In Count II, Zumbro alleges that CNP and Imagine tortiously interfered with its valid business relationships, prospective economic advantage, and other economic expectancy when it sent the letters dated June 29, 1993 to its two customers. CNP contends that because neither of the letters was sent to a customer located in Minnesota, this Court may not exercise specific jurisdiction over it. (Mem.Supp.Mot. to Dismiss, at 12-13 (citing Hicklin Engineering, Inc. v. Aidco, Inc., 959 *782 F.2d 738, 739 (8th Cir.1992) (per curiam), and Keystone Pub. Serv., Inc. v. Ross, 747 F.2d 1233, 1234 (8th Cir.1984) (per curiam)).) Zumbro responds that Hicklin and Keystone are distinguishable because neither case involved "assertions of patent infringement against alleged infringers and/or customers or use of patents to interfere with a competitors business." (Mem.Opp'n Mot. to Dismiss, at 28.) Zumbro further responds that CNP is subject to general jurisdiction; thus, it is immaterial that the letters were not published in Minnesota.
The parties' citations to Hicklin and Keystone indicate that they are applying the so-called "effects test" for personal jurisdiction. Calder v. Jones, 465 U.S. 783, 789-90, 104 S.Ct. 1482, 1486-87, 79 L.Ed.2d 804 (1984). This test, which generally has been limited to intentional torts Calder involved claims of libel against a reporter and editor of the National Enquirer provides that a nonresident defendant whose intentional acts "are performed for the very purpose of having their consequences felt in the forum state" may be subjected to that forum's personal jurisdiction since it knows that the major impact of the injury may be felt in the forum state and should, therefore, reasonably anticipate being haled into court in that state. Id at 789-90, 104 S.Ct. at 1487.[19]
Two decisions indicate how the Eighth Circuit has delimited the effects test discussed in Calder. In Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384 (8th Cir. 1991), the court relied on the effects test to reverse the district court's holding that a South Dakota court could not exercise personal jurisdiction over the nonresident defendant in a trademark infringement suit. Id. at 1391. In reaching its decision, the court recognized that the facts before it did not clearly render the effects test applicable; nevertheless, it reasoned that the plaintiff had supplied facts indicating that the defendant (a) knowingly and intentionally infringed its trademark, and (b) shipped products incorporating the infringing mark into South Dakota, the plaintiff's principal place of business. Given these facts, the court reasoned, the plaintiff had shown that the defendant's actions were "uniquely aimed at the forum state" and that "the brunt of the injury" would be felt there, id. at 1391; under Calder, the defendant "must `reasonably anticipate being haled into court'" in South Dakota. Id. (quoting Calder, 465 U.S. at 790, 104 S.Ct. at 1487).
In Hicklin, the court declined the plaintiff's invitation to apply the effects test to claims of interference with prospective business advantage, interference with contractual relations, and libel, all of which arose from the nonresident defendant's act of mailing, to plaintiff's customers, letters containing allegedly defamatory statements about the plaintiff's products.[20] 959 F.2d at 739. In affirming the district court's rejection of the effects test, the Hicklin court reasoned that Calder was inapposite because (1) none of the letters was published in Iowa, the forum state, and (2) there was no evidence that the defendant's actions were "targeted" to have an effect in Iowa. Id. The Court concluded that although promoting and soliciting products may have an economic effect on a competitor, that effect alone was not enough to warrant the exercise of personal jurisdiction. Id.
Hicklin and Dakota Sportswear illustrate that the effects of a defendant's tortious acts can serve as a source of personal jurisdiction only where the plaintiff makes a prima facie showing that the defendant's acts (1) were intentional, (2) were "uniquely" *783 or expressly aimed at the forum state, and (3) caused harm, the brunt of which was suffered and which the defendant knew was likely to be suffered there. See Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1486 (9th Cir.1993). Assuming Zumbro's allegations to be true, CNP interfered with Zumbro's business when it sent two of Zumbro's customers correspondence falsely accusing it of patent infringement and insinuating, falsely, that those customers could be liable for that infringement. These facts are a prima facie showing that CNP's acts were intentional and that those acts caused Zumbro to suffer economic harm, but Zumbro has not made a similar showing that CNP's actions were uniquely or expressly aimed at Minnesota the two letters at issue were not published here or that the brunt of the harm was suffered in Minnesota,[21] much less that CNP knew it would be suffered there. Hicklin makes clear that an injurious effect on Zumbro's business alone is not enough to exercise jurisdiction over CNP under the effects test.[22]Cf. Lex Computer & Mgmt. v. Eslinger & Pelton, P.C., 676 F.Supp. 399, 405 (D.N.H.1987) (fact that defendant's employee stated that infringement letters were sent to customers to get alleged infringer's "attention" showed that defendant recognized that its letters would have an impact on the alleged infringer). Because Zumbro has not otherwise established a prima facie case that this Court may exercise personal jurisdiction over CNP on Zumbro's claim in Count II, it will be dismissed as against CNP.[23]
3. Lanham Act Claim
In Count III, Zumbro alleges that CNP and Imagine violated the Lanham Act, 15 U.S.C. § 1125(a) by making false representations that Rice Trin and Rice Mix infringe on the patents at issue in this case. Zumbro further alleges that those false statements have deceived or are likely to deceive a substantial number of its customers and have diverted past and future sales away from it.
For the same reasons that this Court may not exercise personal jurisdiction over CNP on Zumbro's claim in Count II, it may not exercise personal jurisdiction over CNP on Zumbro's Lanham Act claim in Count III. Accordingly, Count III will also be dismissed as to CNP.
II. Indispensable Party
Imagine seeks to have Zumbro's claims against it dismissed in the event that CNP is not subject to this Court's personal jurisdiction; it argues that a patent owner is an indispensable party to a suit challenging the patent's validity and enforcement. Zumbro has not asserted that Imagine's position is without merit, nor could it. The Court agrees with decisions by courts in this District and other districts that a patent holder even one who holds a patent with another party is an indispensable party in a declaratory judgment action challenging a patent's validity and enforcement. See Pfizer, Inc. v. Elan Pharm. Research Corp., 812 F.Supp. 1352, 1375 (D.Del.1993); Tol-O-Matic, Inc. v. Proma Produkt-Und Marketing Gesellschaft, m.b.H., 690 F.Supp. 798, 801 (D.Minn.1987); Suprex Corp. v. Lee Scientific Inc., 660 F.Supp. 89, 93-94 (W.D.Pa.1987); Messerschmitt-Boelkow-Blohm gmbH v. Hughes Aircraft Co., 483 F.Supp. 49, 52-53 (S.D.N.Y.1979). The Court therefore will dismiss Zumbro's patent claims against Imagine in Count I.
The Defendants' motion papers and initial memorandum baldly assert that "each cause of action against Imagine should be dismissed because the action cannot proceed without [CNP], who is an indispensable party," (Mem.Supp.Mot. to Dismiss, at 13); however, *784 they have failed to offer any reason or authority for concluding that CNP is an indispensable party to Counts II and III (their memoranda wholly focus on Count I). Accordingly, Imagine's motion to dismiss those counts under Rule 19 will be denied.
III. Improper Venue
In prior sections of this Memorandum Opinion, the Court dismissed Zumbro's claims (a) in Count I as to both CNP and Imagine, and (b) in Counts II and III as to CNP. Consequently, the only claims remaining in this litigation are Zumbro's claims against Imagine in Counts II and III.
As was the case with the portion of their arguments relating to Rule 19, see supra, Part II, the Defendants have not devoted any arguments to the question whether this forum is an appropriate venue for Zumbro's claims against Imagine in Counts II and III. Given that Imagine has waived any objections to this Court's exercise of personal jurisdiction, Dakota Sportswear supports the conclusion that this forum is also a proper venue under 28 U.S.C. § 1391(b). 946 F.2d at 1392. In any event, Imagine has not provided the Court with any reasons to doubt that it is a proper venue. Accordingly, the Court will deny Imagine's Rule 12(b)(3) motion to dismiss Counts II and III.
Conclusion
Based upon the foregoing, and the records, files, and proceedings herein, including the briefs and arguments of counsel, IT IS ORDERED that defendants California Natural Products' and Imagine Foods, Inc.'s Motion to Dismiss (Doc. No. 22) is GRANTED as to (a) plaintiff Zumbro, Inc.'s claims in Count I, and (b) Zumbro's claims against CNP in Counts II and III, and is, in all other respects, DENIED. Zumbro's claims against the Defendants in Count I, and its claims against CNP in Counts II and III, are DISMISSED WITHOUT PREJUDICE.
NOTES
[1] CNP manufactures two types of rice syrup: (1) a "low conversion" syrup that is used as a source of complex carbohydrates; and (2) a "high conversion" syrup that is used as a sweetener in a variety of products.
[2] These journals include Food Technology Magazine, Baking and Snack, Food Processing, Chilton's Food Engineering and Chilton's Food Engineering Master.
[3] CNP has obtained inquiries from readers of these trade publications. Although CNP contends that most of the inquiries have resulted from editorials and articles mentioning it and its products, and not from its advertising, the important point for purposes of the instant motion is that CNP advertises in national publications that are distributed in Minnesota.
[4] There are over 2,700 names on that list; hence, approximately 3% of the names are located in Minnesota.
[5] CNP's total sales in Minnesota over approximately the last nine years total approximately $200,000, which is less than 1% of CNP's total sales revenues.
[6] Although the letter was addressed to IHP, Inc., the first paragraph thereof makes clear that it is intended to address actions taken by Zumbro.
[7] Because the Defendants' motion was brought on the papers alone, Zumbro can survive it if it makes "a prima facie showing of jurisdiction." Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir.1991); see Aaron Ferer & Sons v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir.1977), and the Court shall look at the facts in the light most favorable to Zumbro and shall resolve all factual disputes in Zumbro's favor. Bell Paper Box Co. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir.1994); Dakota Sportswear, 946 F.2d at 1387.
[8] Because Zumbro's claims in Counts I and II are federal claims involving federally-created rights, the Court must examine due process in light of the Fifth Amendment, rather than the Fourteenth Amendment, which applies when a federal court is sitting in diversity. The standards under both amendments, however, are the same. Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1389 n. 2 (8th Cir.1991).
[9] CNP contends that the Federal Circuit, in Beverly Hills Fan Co. v. Royal Sovereign, 21 F.3d 1558 (Fed.Cir.1994), pet. for cert. filed, 62 U.S.L.W. 3844 (June 6, 1994), held that questions of personal jurisdiction in patent cases are governed by the law of the Federal Circuit and not that of the circuit court of appeals for the region in which the dispute is litigated, in this case, the Eighth Circuit. This Court is uncertain whether Beverly Hills Fan goes that far, since the decision involved the "stream of commerce" theory of personal jurisdiction, see id. at 1564, and all of the court's comments concerning personal jurisdiction focus on the stream of commerce theory, see e.g., id. ("[t]he regional circuits have not reached a uniform approach to this jurisdictional issue," and "[t]he creation of a uniform body of Federal Circuit law in this area") (emphasis added). In any event, CNP's motion to dismiss for lack of personal jurisdiction does not center on the stream of commerce theory; accordingly, as the Court finds that relevant decisions of the Eighth Circuit do not deviate from Federal Circuit caselaw in any material respect, it will apply the analytical method utilized by courts in the Eighth Circuit.
The Court notes, however, that cases from the areas of copyright law and trademark law are relevant to the issues before it. Beverly Hills Fan makes clear that it is desirable to harmonize the law of personal jurisdiction in patent infringement cases with the law of copyright and trademark infringement. Id. at 1571. There is no reason to suspect that achieving such harmony is any less desirable when the claim is one for declaratory judgment brought by an alleged infringer.
[10] The first three factors are of increased importance vis-a-vis the fourth and fifth factors. Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir.1977).
[11] Imagine has not challenged this Court's personal jurisdiction over it.
[12] Zumbro asserts that Imagine's contacts with Minnesota should be attributed to CNP and their forum contacts aggregated simply because of the business relationship between CNP and Imagine, particularly that CNP is Imagine's sole supplier of rice beverage pre-mix covered by the 992 Patent and 242 Patent and that Imagine is CNP's only customer for that product. The Court rejects that assertion for two reasons. First, the Supreme Court in Rush v. Savchuk, 444 U.S. 320, 331-32, 100 S.Ct. 571, 579, 62 L.Ed.2d 516 (1980), generally disapproved of aggregating contacts as being "plainly unconstitutional," id. at 332, 100 S.Ct. at 579; Zumbro has not demonstrated that aggregating contacts nonetheless is appropriate here. Second, to the extent that Zumbro is relying on the "stream of commerce" theory to tie CNP to Imagine, that theory is inapplicable to this case for the reasons stated in Ryobi America Corp. v. Peters, 815 F.Supp. 172, 176-77 (D.S.C.1993).
[13] Promoting and selling products not covered by any of the patents at issue are acts unrelated to the subject matter of Zumbro's patent claims See Land-O-Nod, 708 F.2d at 1341.
[14] The Court acknowledges that other, earlier, decisions from courts of this District hold that where the purpose of such a letter is to deter a Minnesota corporation from producing products that violate the federal patent laws, a sufficient nexus is shown between the defendant's forumrelated contacts and the subject of the claim or claims at issue. See Cardiac Pacemakers, Inc. v. Coratomic, Inc., 201 U.S.P.Q. 679, 681 (D.Minn. 1979); Medtronic, Inc. v. Mine Safety Appliances Co., 468 F.Supp. 1132, 1147 (D.Minn.1979); Dyform Concrete, Ltd. v. Spiroll, Ltd., 370 F.Supp. 290, 292 (D.Minn.1973); Imperial Prod., Inc. v. Zuro, 176 U.S.P.Q. 172, 176 (D.Minn.1971). The Court finds that the rule adopted herein is more in line with federal patent law and the evolving law of personal jurisdiction. See Burger King, 471 U.S. at 472, 105 S.Ct. at 2182; Rush, 444 U.S. at 329, 100 S.Ct. at 578; Land-O-Nod, 708 F.2d at 1342-43 (citing cases).
[15] The Court rejects the notion that an infringement letter, when sent to an alleged infringer that is also a competitor, is merely an anti-competitive business action constituting a forum contact related to a subsequent declaratory judgment action, and not the exercise of a right (and obligation) established by the federal patent laws. Cf. Tol-O-Matic, Inc. v. Proma Produkt-Und Mktg. Gesellschaft, m.b.H., 690 F.Supp. 798, 800 (D.Minn.1987); Cardiac Pacemakers, 201 U.S.P.Q. at 681. Every patent holder seeks to dampen competition created by an alleged infringer, whether that competition affects the sales the patent holder's own products or those of its licensees (and thereby the value of the licenses themselves).
[16] Even if the letters were related to the patent claims in Count I, Zumbro has not cited, and the Court has not found, a single decision holding that the sending of a letter such as those CNP sent to Zumbro alone is sufficient to warrant the exercise of personal jurisdiction. Numerous decisions establish the contrary proposition. See e.g., Nova Biomedical Corp. v. Moller, 629 F.2d 190, 196-97 (1st Cir.1980); BIB Mfg., 804 F.Supp. at 1133; KVH Indus., 789 F.Supp. at 72-73 (citing cases).
[17] Even if CNP's promotion and sale in Minnesota of products covered by the 096 Patent were deemed "related" to the subject matter of the claims in Count I, they would be too few to permit the exercise of personal jurisdiction over CNP in accordance with "fair play and substantial justice." Burger King, 471 U.S. at 476, 105 S.Ct. at 2184 (quoting International Shoe, 326 U.S. at 320, 66 S.Ct. at 160); see Dakota Sportswear, 946 F.2d at 1389-90.
[18] Consideration of the less significant fourth and fifth factors in Land-O-Nod does not alter the Court's conclusion.
[19] In determining that the exercise of jurisdiction was proper, the Supreme Court in Calder relied upon the defendants' knowledge that (1) the article would have a "potentially devastating impact" on the plaintiff, and (2) the "brunt" of the injury would be felt in California, where the plaintiff worked and lived and where the National Enquirer had its largest circulation. Id., 465 U.S. at 789, 104 S.Ct. at 1487. In sum, the Court determined that California was the focal point of both the allegedly libelous story and the harm suffered. Id. at 789, 104 S.Ct. at 1486. Under such circumstances, the defendants must have "reasonably anticipate[d] being haled into court" in California. Id. at 790, 104 S.Ct. at 1487.
[20] Because Hicklin involved two competing corporations, 959 F.2d at 739, Zumbro incorrectly asserts that it is distinguishable from the case at bar.
[21] It is not clear whether Zumbro would suffer the brunt of the harm in its home state or where its business was affected most significantly. Zumbro does not allege that this affect was felt most significantly in Minnesota.
[22] The record in this case is substantially similar to that in BIB Mfg. Co. v. Dover Mfg. Co., 804 F.Supp. 1129 (E.D.Mo.1992), wherein the court found that the defendant's act of sending a copy of an infringement letter to a California customer of the plaintiff did not render the defendant subject to personal jurisdiction on a claim of tortious interference with a business relationship. Id. at 1133 (citing Keystone, 747 F.2d at 1234).
[23] For the reasons stated above, see supra Part I.A, CNP is not subject to this Court's general jurisdiction on Count II. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261603/ | 861 F.Supp. 851 (1994)
William E. EVANS, Plaintiff,
v.
The SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, Defendant.
No. 92-0630-CV-W-3.
United States District Court, W.D. Missouri, Western Division.
August 25, 1994.
*852 *853 Samuel I. McHenry, Legal Aid of Western Missouri, William Earl Evans, Kansas City, MO, for William Earl Evans.
Maurice A. Watson, Blackwell, Sanders, Matheny, Weary & Lombardi, Herbert Victor White, Jr., Kansas City, MO, for Kansas City, Missouri School Dist.
Donald R. Aubry, Jolley, Walsh & Hager, P.C., Kansas City, MO, for American Federation of Teachers, Local 691.
MEMORANDUM OPINION AND ORDER
ELMO B. HUNTER, Senior District Judge.
This is a case of race discrimination and retaliation brought pursuant to Title VII, 42 U.S.C. § 1981, and the Missouri Human Rights Act (MHRA). In a trial commencing June 13, 1994, the Section 1981 and MHRA claims were tried to a jury and the Title VII claim was tried to the Court. The jury returned a verdict in favor of the Plaintiff William E. Evans ("Evans") on the retaliation claim for $25,002.00 and in favor of defendant The School District of Kansas City Missouri ("School District") on the race discrimination claim.
The Court now finds that Plaintiff also was discriminated against in the form of illegal retaliation pursuant to Title VII. This finding is made of the Court's own independent view of the facts, although on common issues of fact, the Court is bound by the jury's findings.[1]See Fray v. Omaha World Herald Co., 960 F.2d 1370, 1378 (8th Cir.1992); Jiles v. Ingram, 944 F.2d 409, 413 (8th Cir.1991). This Court's findings of fact and conclusions of law follow.
I. CONCLUSIONS OF LAW
This Court has jurisdiction over Plaintiff's Title VII claim pursuant to 42 U.S.C. § 2000e-5(f). Venue is proper in this district pursuant to 28 U.S.C. § 1391.
Plaintiff Evans was an employee of Defendant School District as that term is defined by Title VII. Defendant is an employer within the meaning of that term as provided by Title VII. Plaintiff has satisfied all statutory prerequisites for bringing this Title VII civil action.
II. FINDINGS OF FACT
Evans is an adult African-American male. He received his bachelor's degree in 1985 and became licensed to teach in the State of Tennessee that same year. After working as *854 a substitute teacher for several years, the School District employed Evans in August 1988. The School District assigned Evans to Southeast Magnet High School as a music teacher.
In January 1991, Dr. Curtis Cooper ("Cooper") was employed by the School District as principal of Southeast Magnet High School. At Cooper's first developmental staff meeting with teachers and administrators, Cooper presented his vision and plans for the school to the staff. Plaintiff took exception to several of Cooper's remarks as racially insensitive and openly criticized them as such during the meeting.
On March 6, 1991, Cooper directed Evans to submit both long and short-term lesson plans to him by March 8, 1991. Cooper did not direct any other teacher to submit short-term lesson plans at that time. Upon receiving Cooper's request for lesson plans, Evans wrote a memorandum dated March 8, 1991, to Cooper in which he charged Cooper with race discrimination and harassment based on Evans' criticisms of Cooper at the developmental meeting. Evans subsequently complained to the association representing the School District teachers, the American Federation of Teachers (AFT), about Cooper's requirement that he submit short-term lesson plans.
On March 21, 1991, a meeting took place between Evans, Cooper, and Kathleen Reed ("Reed"), Plaintiff's union representative, for the purpose of discussing Cooper's directive that Evans submit weekly lesson plans. In April 1991, the School Board voted not to renew Evans' teaching contract for the following year although Plaintiff's Teacher Performance Evaluations for all three years of service at Southeast High School reveal an overall performance that met requisite performance standards. Further, Plaintiff's Evaluation for the period from November 19, 1990, through January 11, 1991, three months before he was notified his contract would not be renewed, indicates he met the requisite performance standards in both planning and classroom management.[2]
Notably, the School District alleges nonrenewal of Evans' employment was based on failure to plan and insubordination, while Plaintiff asserts that non-renewal was a result of his race as well as retaliation for his complaints concerning the School District's racially discriminatory and insensitive treatment of its black students and staff.
III. RACIAL DISCRIMINATION
As a preliminary matter, Section 703(a)(1) of Title VII provides in pertinent part:
It shall be an unlawful employment practice for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(1). The United States Supreme Court has outlined a framework for the orderly presentation and evaluation of evidence in discrimination cases such as the one here: (1) plaintiff must establish a prima facie case which then raises a rebuttable presumption of unlawful discrimination; (2) defendant must then rebut the presumption by articulating a legitimate, nondiscriminatory reason for the employment decision; and (3) once the defendant meets this burden, plaintiff must then prove by a preponderance of the evidence that defendant's proffered reason was not the real reason but merely a pretext for discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).
*855 The Supreme Court has recently modified this framework in that solely establishing a defendant's proffered reason was pretextual neither compels nor guarantees a verdict in favor of the plaintiff unless the trier of fact further makes a finding of unlawful discrimination. St. Mary's Honor Ctr. v. Hicks, ___ U.S. ___, ___, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993).
A. The Prima Facie Case
A plaintiff may establish a prima facie case of intentional discrimination by showing "(1) that he belongs to a racial minority; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that, despite his qualifications, he was rejected; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824.[3]
In light of the above-found facts, this Court CONCLUDES that Plaintiff established a prima facie case of race discrimination.
B. Race-Neutral Reason for Failure to Hire
Once the plaintiff establishes a prima facie case, defendant must "articulate some legitimate, non-discriminatory reason for the employee's rejection." Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. Put another way, the defendant must clearly set forth reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action. Hicks, ___ U.S. at ___, 113 S.Ct. at 2749.
At trial, the School District introduced as evidence several written reprimands from Cooper to Evans for failure to comply with Cooper's directive to provide him copies of short-term lesson plans. (Plaintiff's Exhibits 8, 11, 12, and 15). Further, the School District introduced into evidence at trial a written reprimand from Cooper to Evans for insubordination. (Plaintiff's Exhibit 14). Based on this evidence, the School District contends that the legitimate, non-discriminatory reasons for refusing to renew Plaintiff's teaching contract were that (1) he failed to plan properly for instruction in the classroom; (2) he refused to submit weekly lesson plans repeatedly requested by the principal; and (3) he demonstrated flagrant disrespect and contempt for the authority of his supervisor. This Court finds that the School District has supplied sufficient evidence of non-discriminatory reasons for choosing not to renew Plaintiff's contract.
In light of the above-found facts, this Court CONCLUDES that the Defendant successfully rebutted Plaintiff's prima facie case.
C. Pretext
Once the defendant successfully rebuts plaintiff's prima facie case, plaintiff must then prove by a preponderance of the evidence that defendant's proffered reason was not the real reason, but merely a pretext, for discrimination. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. Plaintiff asserted at trial that the School District's grounds for refusing to renew his contract are pretextual because he consistently met requisite performance standards in planning and classroom management over the course of his three years at Southeast High School. In support of this assertion, Plaintiff introduced into evidence his Teacher Performance Evaluations, including his Evaluation for the period from November 19, 1990, through January 11, 1991, just two months before he was requested to submit weekly lesson plans based on alleged inadequacies, and only three months before he was notified his contract would not be renewed due to poor planning and classroom management. The fact that the principal of the school would demand lesson plans from Plaintiff for substandard performance after three years of consistent and satisfactory evaluations and just two months after a formal evaluation reflecting satisfactory performance, and the *856 fact that the School District would subsequently refuse to renew Plaintiff's teaching contract for this substandard performance the following month, both support a finding that the School District's claims of substandard performance are pretextual.
In addition to poor planning and classroom management, Defendant presented evidence, through the testimony of Cooper, that Plaintiff was insubordinate. Cooper testified that Plaintiff was insubordinate first, when Plaintiff failed to submit requested lesson plans, and second, when Plaintiff displayed disrespect for Cooper by directing profanity at him after the March 21, 1991, meeting that took place between Evans, Cooper, and Reed for the purpose of discussing Cooper's order that Evans submit weekly lesson plans. As a result, the School District asserts insubordination is also a legitimate non-discriminatory reason for refusing to renew Plaintiff's teaching contract.
Notably, Reed's testimony at trial directly contradicts Cooper's testimony. Reed testified that, although she was present at the end of the meeting and standing near Cooper, she never heard Evans speak the alleged profanity. Reed further testified that in this meeting, held approximately three weeks before the School District refused to renew Plaintiff's teaching contract, Cooper voluntarily withdrew his request for Plaintiff's short-term lesson plans based on Reed's advice that he could not target just one teacher in this request. This Court finds Reed's testimony both credible and persuasive, giving support to the finding that the School District's claim of insubordination is also pretextual.
Based on the above discussion, this Court CONCLUDES that Plaintiff has successfully shown by a preponderance of the evidence that Defendant's proffered reasons of substandard performance and insubordination were not the real reasons for failure to renew Plaintiff's contract, but merely a pretext for discrimination.
D. Plaintiff's Ultimate Burden of Proof
In light of the Supreme Court's recent decision in Hicks, even though Plaintiff has succeeded in proving by a preponderance of the evidence that the School District's articulated non-discriminatory reasons for failing to renew his contract were pretextual, Plaintiff still has the ultimate burden of persuading the trier of fact that the decision not to offer him a contract was racially motivated. Hicks, ___ U.S. at ___, 113 S.Ct. at 2749. Absent a finding of unlawful discrimination by the trier of fact, Plaintiff cannot prevail. Id.
Evans supplies no additional evidence that the School District's decision not to offer him a new contract was based on discrimination. His prima facie case, standing alone, is not sufficient to carry the day. In light of this finding, Evans has failed to prove, and this Court cannot find, that the decision not to offer him a new contract was motivated by race as required by Hicks. Id. Accordingly, Plaintiff is not entitled to judgment in his Title VII racial discrimination claim.
IV. RETALIATION
In his second Title VII claim, Plaintiff alleges that the School District refused to renew his teaching contract in retaliation for Plaintiff's complaints concerning the School District's racially discriminatory and insensitive treatment of its black students and staff.
Section 704(a) of Title VII provides in pertinent part:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter.
42 U.S.C. § 2000e-3(a). This Court notes that the Eighth Circuit Court of Appeals applies the same order and allocation of proof to those cases alleging retaliation for participation in Title VII processes as it does for Title VII intentional discrimination suits. See Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980), cert. denied 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981) (citations omitted). Therefore, once the plaintiff establishes a prima facie case of retaliation, the burden shifts to the employer to produce some legitimate nondiscriminatory reason for the adverse employment decision. See id. *857 If the employer satisfies the burden, the plaintiff must prove by a preponderance of the evidence that the proffered reason is a pretext for retaliation. See id. Further, plaintiff must finally persuade the trier of fact that the decision not to offer him a contract was racially motivated. Hicks, ___ U.S. at ___, 113 S.Ct. at 2749.
A. The Prima Facie Case
To establish a prima facie case of retaliatory discrimination a plaintiff must show: (1) he engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal connection existed between participation in the protected activity and the adverse employment action. Wentz v. Maryland Casualty Co., 869 F.2d 1153, 1154-55 (8th Cir.1989); McDaniel v. Temple Independent School Dist., 770 F.2d 1340, 1346 (5th Cir.1985).
The Title VII prohibition against retaliatory discrimination protects activities ranging from the filing of a formal complaint to expressing a belief that the employer has engaged in discriminatory practices. See, e.g., Wentz, 869 F.2d at 1153; Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346 (9th Cir.1984); Womack v. Munson, 619 F.2d at 1292; Berg v. La Crosse Cooler Co., 612 F.2d 1041 (7th Cir.1980); Coleman v. Wayne State University, 664 F.Supp. 1082 (E.D.Mich.1987). Plaintiff asserts that his teaching contract was not renewed in retaliation for complaints about the School District's racially discriminatory and insensitive treatment of its black students and staff to Cooper. See Plaintiff's Amended Complaint at p. 3, ¶ 9 (emphasis added). Based on the cited authority and the nature of Plaintiff's grievance as it relates to his working conditions, this Court holds that Plaintiff's complaint to the School District regarding its racially discriminatory and insensitive treatment of black students and staff meets the requisite showing that he engaged in activity protected by Title VII. Further, Plaintiff has met the second prong of the prima facie retaliation case because non-renewal of Plaintiff's teaching contract qualifies as an adverse employment action.
Lastly, this Court finds a causal connection existed between participation in the protected activity and the adverse employment action. The requisite causal link is more than established by the closeness in time between Plaintiff's complaints and the institution of Cooper's campaign of "reprimands." Kralowec v. Prince George's County, 503 F.Supp. 985 (D.Md.1980), aff'd. mem. 679 F.2d 883 (4th Cir.), cert. denied, 459 U.S. 872, 103 S.Ct. 159, 74 L.Ed.2d 132 (1982); Goodwin v. Pittsburgh, 480 F.Supp. 627 (W.D.Pa.1979), aff'd. mem. 624 F.2d 1090 (3d Cir.1980). A causal connection may be demonstrated indirectly by evidence of circumstances that justify an inference of retaliatory motive, such as a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time. See Rath v. Selection Research, Inc. 978 F.2d 1087, 1090 (8th Cir.1992); Couty v. Dole, 886 F.2d 147, 148 (8th Cir.1989).
In light of the above-found facts, this Court CONCLUDES that Plaintiff has carried his initial burden in establishing a prima facie case of retaliation.
B. Race-Neutral Reason for Failure to Hire
Again, once the plaintiff establishes a prima facie case, defendant must "articulate some legitimate, non-discriminatory reason for the employee's rejection." Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. Based on the discussion in Section IB, supra, this Court again finds that the School District articulated legitimate, nondiscriminatory reasons for refusing to renew Plaintiff's teaching contract. In light of this finding, this Court CONCLUDES that the School District successfully rebutted Plaintiff's prima facie case of retaliation.
C. Pretext
Once the defendant successfully rebuts plaintiff's prima facie case, plaintiff must then prove by a preponderance of the evidence that defendant's proffered reason was not the real reason, but merely a pretext for discrimination. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. Based on the discussion in Section IC, supra, this Court again finds that the Plaintiff has proved by a preponderance *858 of the evidence that Defendant's proffered reasons of substandard performance and insubordination were not the real reasons for failure to renew Plaintiff's contract, but merely a pretext for discrimination.
D. Plaintiff's Ultimate Burden of Proof
As the Court identified in Section ID, supra, although Plaintiff has succeeded in proving by a preponderance of the evidence that the School District's articulated non-discriminatory reasons for failing to renew his contract were pretextual, Plaintiff still has the ultimate burden of persuading the trier of fact that the decision not to offer him a contract was motivated by retaliation in violation of Title VII. Hicks, ___ U.S. at ___, 113 S.Ct. at 2749. For the following reasons, this Court concludes Plaintiff has met this burden.
Evans presented persuasive evidence at trial that he consistently met requisite performance standards over the course of his three years at Southeast High School, as reflected by the Teacher Performance Evaluations introduced by Plaintiff into evidence, including his Evaluation for the period from November 19, 1990, through January 11, 1991, just two months before he was requested to submit weekly lesson plans based on alleged inadequacies, and only three months before he was notified his contract would not be renewed due to poor planning and classroom management. Further, Evans introduced the testimony of witnesses present at Cooper's first developmental staff meeting where Plaintiff took exception to several of Cooper's remarks as racially insensitive and openly criticized them as such during the meeting. These witnesses testified that Cooper seemed extremely annoyed and agitated in his reaction to Evans' allegations that his visions and plans for the students and staff were racially insensitive. In light of these facts, this Court further finds the closeness in time between Plaintiff's complaints and the institution of Cooper's campaign of "reprimands," which ultimately resulted in failure by the School District to rehire, is persuasive evidence of the alleged retaliation. Accordingly, this Court CONCLUDES, as did the jury in the 42 U.S.C. § 1981 and MHRA claims, that Evans ultimately has proved that reprimands by Cooper, as well as the ultimate decision not to offer Plaintiff a new contract, were both motivated by retaliation.
Accordingly, Plaintiff is entitled to judgment in his Title VII retaliation claim. This Court finds, however, the jury's award of $25,000 for actual damages, including back pay, is sufficient monetary relief for the School District's unlawful discrimination and thus no additional monetary relief is granted under Title VII.
V. RELIEF
Evans has requested relief from the School District in the form of (1) reinstatement; (2) a permanent injunction enjoining the District from continuing to discriminate against Plaintiff because of his race or in retaliation; (3) compensatory damages; (4) back pay; (5) punitive damages; and (6) attorney's fees.
As a preliminary matter, Title VII of the Civil Rights Act of 1964, as amended,[4] states in pertinent part:
If the court finds that respondent has intentionally engaged in ... an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement.
42 U.S.C. § 2000e-5(g). A district court is vested with sound discretion to decide whether to award reinstatement as equitable relief. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975); Taylor v. Teletype Corp., 648 F.2d 1129, 1138 (8th Cir.), cert. denied 454 U.S. 969, 102 S.Ct. 515, 70 L.Ed.2d 386 (1981). To the extent possible, a district court should seek "to make persons whole for injuries suffered on account of unlawful employment discrimination." Albemarle, 422 U.S. at 418, 95 S.Ct. at 2372. Reinstatement is such a basic element of Title VII relief that granting such relief is presumed appropriate and, except *859 in extraordinary cases, is required. Weaver v. Casa Gallardo Inc., 922 F.2d 1515 (11th Cir.1991); Darnell v. Jasper, 730 F.2d 653 (11th Cir.1984).
Further, a court may refuse equitable relief, including compelling employment of plaintiff, "`only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.'" Albemarle, 422 U.S. at 421, 95 S.Ct. at 2373. Accordingly, a district court must "carefully articulate" its rationale for refusing to compel employment of a plaintiff who has suffered discrimination. 422 U.S. at 421, n. 14, 95 S.Ct. at 2373, n. 14.
Notably, those cases in which courts have declined to reinstate injured plaintiffs have frequently involved high level and unique positions or evidence of extreme animosity between plaintiff and defendant employers. See, e.g., Cancellier v. Federated Department Stores, 672 F.2d 1312 (9th Cir.), cert. denied 459 U.S. 859, 103 S.Ct. 131, 74 L.Ed.2d 113 (1982) (holding plaintiff and defendant employer could no longer exist in a productive business relationship); Hoffman v. Nissan Motor Corp., 511 F.Supp. 352, 355 (D.N.H. 1981) (concluding reinstatement of plaintiff "would be a harbinger of disaster"); Combes v. Griffin Television, Inc., 421 F.Supp. 841, 846 (W.D.Okla.1976) (finding discord, tension, suspicion, antagonism and sensitivity would create a very difficult employment environment if plaintiff were reinstated); EEOC v. Kallir, Philips, Ross, Inc., 420 F.Supp. 919, 926-27 (S.D.N.Y.1976), aff'd. mem. 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977) (plaintiff's former job "required a close working relationship [with] top executives of defendant" and "involved frequent personal contact with defendant's clients, with plaintiff acting as defendant's representative").
It appears to this Court that reinstating Plaintiff as a teacher does not involve a high level or unique position within the School District. Further, now that Cooper is no longer employed by the School District, the likelihood that extreme animosity between Plaintiff and Defendant would exist upon reinstatement is remote.[5] Accordingly, in the attempt to make Plaintiff whole for injuries suffered on account of unlawful employment discrimination, the School District shall rehire Plaintiff to his former position, or one that is equivalent to the position, of high school music teacher.[6]
Plaintiff also requests the Court to enjoin the School District from continuing to discriminate against Plaintiff because of his race or in retaliation. Injunctive relief generally should be granted in Title VII cases unless there is no reasonable expectation that the discriminatory conduct will recur, United States v. W.T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), or if interim events have "completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). Notably, Cooper is no longer employed by the School District. Based on Cooper's departure, this Court concludes that there is no reasonable expectation that the discriminatory conduct will recur when Evans is once again employed by the School District. Consequently, Plaintiff is denied injunctive relief.
Although compensatory damages have been requested by Plaintiff, this Court, as did the jury on Plaintiff's Section 1981 and MHRA claims, finds Plaintiff failed to present sufficient evidence of mental anguish, humiliation, embarrassment and stress to justify more than a nominal award of $1.00 for compensatory damages. As a result, this *860 Court finds the jury's award for compensatory damages is sufficient relief.
Plaintiff also requests punitive damages in his Amended Complaint. It is well settled that, prior to passage of the Civil Rights Act of 1991, punitive damages were not available to a Plaintiff seeking redress under Title VII, regardless of whether the defendant was a governmental entity. Because the 1991 amendments to the Civil Rights Act were not effective until after Plaintiff's employment with the School District was terminated, see Lee v. Trans World Airlines, Inc., 509 F.Supp. 1182, 1186 (W.D.Mo.1981), punitive damages are not available to Plaintiff in his Title VII claim.
Lastly, a prevailing party in an action brought under Title VII may be awarded attorney's fees in the Court's discretion. 42 U.S.C. § 2000e-5(k). While discretionary language is used in the statute, prevailing plaintiffs are essentially entitled to attorney's fees unless special circumstances would render such an award unjust in light of Congressional goals underlying enforcement of fee awards in civil rights litigation. Lyte v. Sara Lee Corp., 950 F.2d 101 (2d Cir.1991). No such circumstances exist in this case. Plaintiff's counsel, therefore, is required to submit an application for reasonable attorney's fees within twenty days of the date of this Order.
Accordingly, it is hereby ORDERED that
1) judgment be entered in favor of the Plaintiff on the issue of liability on his Title VII claim (Count I);
2) Plaintiff shall be reinstated to the position of music teacher in the Kansas City, Missouri School District, or some other similar position;
3) Plaintiff shall submit a request for fees within twenty days of the date of this Order to which the Defendant shall file a response within five days of the date that request is filed; and
4) the Clerk of the Court is directed to enter judgment in this matter pursuant to Rule 58 of the Federal Rules of Civil Procedure on Counts Two and Three.
IT IS SO ORDERED.
NOTES
[1] Pursuant to the parties' agreement before trial, all legal and equitable claims in the above-styled action were tried together to a jury. The parties further agreed that the jury's verdict would govern the factual issues common to all claims.
[2] Although there is no specific category on the Kansas City, Missouri Teacher's Performance Evaluation for "classroom management," the Court concludes that the categories of "student relationships" and "climate" encompass the concept of classroom management. Plaintiff has consistently met the School District's performance standards in these two areas over the last three years.
The only area in which Plaintiff failed to meet the requisite performance standard in any area over the course of his three years with the School District was on one occasion, in the area of organization.
[3] "The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderance of the evidence that [he] applied for an available position, for which [he] was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
[4] The 1991 amendments to the Civil Rights Act were not effective until after Plaintiff's employment with the School District was terminated and therefore are not applicable to this case.
[5] Friction arising from the litigation process itself is not sufficient enough to deny employment since "a court might deny [employment] in virtually every case if it considered the hostility engendered from litigation as a bar to relief." Taylor, 648 F.2d at 1139.
[6] For other decisions compelling reemployment, see Taylor, 648 F.2d at 1139; Harper v. General Grocers Co., 590 F.2d 713 (8th Cir.1979); Spagnuolo v. Whirlpool Corp., 641 F.2d 1109 (4th Cir.), cert. denied 454 U.S. 860, 102 S.Ct. 316, 70 L.Ed.2d 158 (1981); Cline v. Roadway Express, Inc., 689 F.2d 481 (4th Cir.1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261613/ | 861 F.Supp. 680 (1994)
Janis M. ALBEE, et al., Plaintiff,
v.
VILLAGE OF BARTLETT, ILLINOIS, a municipal corporation, Defendant.
No. 93 C 2351.
United States District Court, N.D. Illinois, Eastern Division.
August 15, 1994.
*681 Charles Cohn, Cohn & Cohn, Chicago, IL, for plaintiff.
John T. Weise, Richard B. Lapp, Deborah A. Kop, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for defendant.
MEMORANDUM OPINION AND ORDER
SHADUR, Senior District Judge.
Thirty-nine current and former employees of the Police Department of the Village of *682 Bartlett ("Bartlett") seek a declaratory judgment that Bartlett has violated (1) certain contractual obligations and (2) the overtime provisions of the Fair Labor Standards Act ("FLSA") by imposing various restrictions on its employees' daily half-hour lunch breaks restrictions that assertedly transform the employees' free time into compensable work time. Bartlett has responded with a Fed. R.Civ.P. ("Rule") 56 motion for summary judgment, which is now fully briefed and ripe for decision. For the reasons stated in this memorandum opinion and order, Bartlett's motion is granted in its entirety and this action is dismissed.
Analysis of Bartlett's motion is made somewhat more complicated by the Complaint's linkage of the claims of five categories of Bartlett employees:
1. three types of sworn police personnel patrol officers, detectives and sergeants (unlike employees within the first two categories, sergeants are supervisory officers); and
2. two types of non-sworn civilian personnel community service officers who perform certain police duties ("CSOs")[1] and record clerks ("clerks").
Because the several groups do share a number of constraints (or lack of constraints) on their activities, this opinion can and does indulge a substantial amount of collective discussion of the applicable principles. But it will also make clear where differences exist among the categories of employees.
Facts[2]
Until January 1990 all categories of employees at issue in this case were scheduled for 8-hour shifts with half-hour unpaid meal breaks. Then in January 1990 Bartlett's sergeants, and in May 1993 its patrol officers, were rescheduled to 12-hour shifts with a paid lunch period. Although that new arrangement renders the current dispute moot for the sergeants and patrol officers after those dates, they still seek to recover money that they claim is due them for the periods before the changes. As for the other three categories detectives and the two categories of unsworn personnel they still remain subject to the arrangement described in the first sentence of this paragraph.
As an employer engaged in public law enforcement, Bartlett has the right under 29 U.S.C. § 207(k) ("Section 207(k)"[3]) to eschew the standard 40-hour work week otherwise mandated by Section 207(a) and instead to substitute a different work period arrangement for its sworn personnel (Alexander v. City of Chicago, 994 F.2d 333, 334 (7th Cir. 1993)). Bartlett has exercised that Section 207(k) option, and all of its officers, detectives and sergeants are paid at time-and-a-half for all work performed above and beyond 85-1/2 hours for any two-week period (D. 12(m) ¶ 19). CSOs, on the other hand, do receive overtime for any hours worked in excess of 40 per week (id. ¶ 20), and that is presumably true of clerks as well.
*683 For the first 15 minutes of every shift, all patrol officers, sergeants and CSOs participate in roll call, where the patrol officers (in order determined by seniority) and then the sergeants schedule their meal break times for the day (D. 12(m) ¶ 21). Detectives are not present at roll call and can take their meal breaks at any time during their shifts (id. ¶ 22). Clerks are also scheduled for a meal break during each shift, either by the sergeant working their shift or at a time that clerks themselves select (id. ¶ 49).
As a result, the employees in all five categories were and are in fact scheduled for 30-minute meal breaks in each shift, during which time they are relieved from their normal duties and are generally free to eat or to go about whatever personal business they can conclude within Bartlett's village limits (id. ¶¶ 25-31, 50). They remain subject to several restrictions, however, the most noteworthy of which are that all of them other than detectives and clerks must remain in radio contact subject to being recalled to duty (id. ¶ 30), while clerks must generally take their meal breaks on the Police Department premises (id. ¶ 52). This opinion later sets out a more detailed examination of the relevant restrictions.
Whenever an employee believes that a lunch period has been interrupted for any reason, he or she is both entitled and expected to attempt to reach the shift sergeant to have it rescheduled (id. ¶¶ 40, 56). Whenever that happens the employee has been granted a fresh 30-minute meal break if at all possible, but has been paid for overtime instead if a meal break has been missed (id. ¶¶ 41-47, 56-60). In that latter event the employees have been instructed to put in overtime cards for the entire half-hour (id. ¶¶ 42-44, 57-59). For the period between January 1990 and March 1993 fully 138 overtime cards were submitted by the patrol officers, detectives and CSOs, all of whom were then reimbursed at their overtime rates of pay (id. ¶ 47).[4] During the same period, clerks submitted 20 such cards and were also compensated accordingly (id. ¶ 60).
This action was originally brought in the Circuit Court of Cook County via a Complaint for Declaratory Judgment and Accounting and was timely removed to this District Court. Three counts are set out in the Complaint, the first seeking a declaratory judgment that Bartlett has breached its contractual obligations assertedly created by two documents that it has promulgated, the second claiming that Bartlett has violated FLSA's overtime provisions and the third asking for an accounting. Bartlett's motion for summary judgment on the first two counts (those stating the substantive claims) will be dealt with in reverse order.
FLSA Claims
This Court's task in deciding whether or not the half-hour daily meal periods at issue in this case were compensable work time within the meaning of FLSA is substantially facilitated by last year's Alexander decision from our Court of Appeals. Alexander considered the claims of a group of Chicago police officers who (much like the employees in this case) felt that certain restrictions imposed on their lunch breaks justified overtime compensation. After the district court had granted the City's motion for a Rule 12(c) judgment on the pleadings, our Court of Appeals reversed and remanded for further factual development of the record.
Despite the parallel between the types of claims involved in the two cases, Alexander does not of course control this case directly in principal part because of the very different posture in which the cases have presented themselves. On Alexander's Rule 12(c) motion (as on a Rule 12(b)(6) motion to dismiss) the well-pleaded allegations of plaintiffs' complaint must be taken as gospel (Alexander, 994 F.2d at 336), while on the current Rule 56 motion this Court has been armed with the actual facts (thus causing the Complaint's allegations to drop out of consideration, see Rule 56(e)).
To the extent that Alexander, 994 F.2d at 335-36 recognized a similarity between its Rule 12(c) context and that under Rule 56, the parallel lies only in the requirement in both situations that reasonable inferences must be drawn in favor of the nonmovants *684 (in both instances the employees).[5] But the important difference is that the required reasonable inferences are drawn from two entirely different sources: in the Rule 12(c) situation, from the employees' own factually unsupported allegations (id. at 336), but in the Rule 56 situation, from the actual facts as they have been presented in the parties' evidentiary submissions (as focused by their GR 12 statements).
In sum, what this Court has specifically been furnished as grist for its decisional mill in this case is the "sufficient development of the facts to enable a capable application of the appropriate predominant benefit standard, including a determination of whether the officers are unable to pass the mealtime comfortably because their time or attention is devoted primarily to official responsibilities" the very factual development that Alexander, 994 F.2d at 339 found was lacking in that case. Alexander, id. expressly recognized that it was not holding "that resolution of the FLSA mealtime compensability issue in the countless factual configurations that might arise will always require a trial." And that determination whether a trial is indeed required under the specific factual configuration at issue here is the determination that this Court is now called upon to make, and that has frequently been made in the employer's favor by other courts acting in the summary judgment mode (Avery v. City of Talladega, 24 F.3d 1337, 1347 (11th Cir.1994));[6]Henson v. Pulaski County Sheriff Dep't, 6 F.3d 531, 535-36 (8th Cir.1993); Bagrowski v. Maryland Port Auth., 845 F.Supp. 1116, 1118-20 (D.Md.1994); Cloutier v. City of Phenix City, 834 F.Supp. 366, 369-72 (M.D.Ala.1993); cf. Bright v. Houston Northwest Medical Ctr. Survivor, Inc., 934 F.2d 671 (5th Cir.1991) (decided in the comparable context of a directed verdict; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986)).
Alexander does provide two important guides for this Court's inquiry. For one thing, it teaches that two regulations (including the specific factual examples that one of them includes) dealing with the excludability of meal periods from hours worked[7] 29 C.F.R. § 785.19(a) and, for public employers opting into Section 207(k), 29 C.F.R. § 553.223(b) are informative but not determinative in the evaluation (Alexander, 994 F.2d at 336-37). Second and critically, Alexander, id. at 337 expressly holds:
The appropriate standard is instead the one articulated in Lamon [v. City of Shawnee, 972 F.2d 1145 (10th Cir.1993) ] a standard that sensibly integrates developing case law with the regulations' language and purpose. Under Lamon, a law enforcement employee is completely relieved from duty during a meal period "when the employee's time is not spent predominantly for the benefit of the employer," 972 F.2d at 1155, 1157; stated differently, the "FLSA requires remuneration for meal periods during which a police officer is unable comfortably and adequately to pass the mealtime because the officer's time or attention is devoted primarily to official responsibilities." Id. at 1155-56.
That same predominantly-for-the-benefit-of-the-employer standard has also been adopted by most of the other Courts of Appeals that have considered the question (most recently Avery in the Eleventh Circuit). This opinion turns then to the analysis in those terms.[8]
*685 Patrol Officers and Detectives
As for Bartlett's patrol officers and CSOs, the single most significant restriction (though not the only one) that they urge is Bartlett's reservation of the right to place emergency calls to them during their lunch breaks.[9] But that potential does not convert a free meal break into "time ... spent predominantly for the benefit of the employer." As Lamon, 972 F.2d at 1157 puts it:
That a police officer is on-call and has some limited responsibilities during meal periods does not perforce mean the officer is working.
Accord, Bagrowski, 845 F.Supp. at 1120 ("Being on-call in case of emergency, does not, in and of itself, make meal time, work time"). Alexander not only defined the already-quoted relevant standard but also emphasized the factual information that was wanting there but is present here (994 F.2d at 339-40):
There is a universe of possibilities about when a meal is "interrupted" so as to require compensation. At this point we can only speculate about the frequency of communication to police officers at mealtime, the frequency and extent of interruptions, the effect of the various restrictions on an otherwise uninterrupted meal period and a variety of other factual matters. The pleadings alone simply do not reveal to what extent the officers' attention was turned to official duties.
As that and Judge Crabb's concurrence (id. at 341) make plain, it is the frequency and extent of the interruptions rather than their mere possibility that informs the decision whether "the officer's time or attention is devoted primarily to official responsibilities."
Here the patrol officers and detectives proffer no evidence that, even with the required favorable inferences, indicates that they ate subject to frequent interruptions (a sharp contrast, for example, with the situation before the district court in Lamon v. City of Shawnee, 1990 WL 186280, at *5-6, 1990 U.S.Dist. LEXIS 15906, at *16-*17 (D.Kan. Oct. 4, 1990)).[10] Instead the contrary situation prevails: Bartlett's well-substantiated allegation that the employees are called on to deal with lunch-time emergencies only a few times per month stands uncontested.[11] What follows is a brief summary of that substantiation.
Bartlett's dispatchers maintain a procedure under which they route calls away from patrol officers and detectives who are on their meal breaks (D. 12(m) ¶ 37; see Alexander, 994 F.2d at 341 (Crabb, J. concurring), stating that such a deferral procedure strengthens the presumption that emergency calls are incidental to on-call status). Such interruptions as do occur are often of short duration (Kopanitsanos Dep. 21; Perry Dep. 7). As for lunch-time interruptions arising out of questions from civilians, by definition those are largely a function of where the employee chooses to take his or her meal. Here the employees have extensive freedom to select the places that they eat anywhere except taverns (D. 12(m) ¶ 34). Those who *686 pick locations such as the center of town are obviously more likely to be approached by civilians (Gost Dep. 16) than those who lunch in more private spots such as the station house or their own homes. In any event, there has been no substantiation for any claim that the employees have been badgered by civilians to any extent even remotely approaching the point at which their time is not their own (see Bagrowski, 845 F.Supp. at 1120; United States Dep't of Labor Wage & Hour Div. Opinion Letter (July 29, 1985) ("Department of Labor Opinion Letter"), reprinted in 6A Lab.Rel.Rep. (BNA) WHM 99:5005, 5006 ("we would not consider infrequent interruptions of short duration which may occur when a citizen compliments, or asks a law enforcement employee a simple question, as nullifying the exclusion of an otherwise bona fide meal period from compensable hours of work")).
Under the circumstances presented by the evidence in this case, it cannot be said that time spent on-call constitutes compensable work time as such. As Armitage v. City of Emporia, 982 F.2d 430, 432-33 (10th Cir. 1992) (citations omitted) has explained:[12]
In the instant case, the detectives were allowed to do as they pleased while on call, as long as they remained sober, could be reached by beeper and were able to report to duty within twenty minutes of responding to the page. They were called in on average less than two times per week, as opposed to the twenty to thirty times per week for the firefighters in Renfro [v. City of Emporia, 948 F.2d 1529 (10th Cir. 1991)].... Although the detectives' services are certainly beneficial to the public, to require compensation under these facts would require that all on call employees be paid for standby time. This would be a major change in the law of the FLSA. Accord, Avery, 24 F.3d at 1347; Henson, 6 F.3d at 536; Lee v. Coahoma County, 937 F.2d 220, 225 (5th Cir.1991); City of University Park v. University Park Police Ass'n, 766 S.W.2d 531, 537 (Tex.Ct.App.1989).
It must be kept in mind, of course, that the compensability question involves a congeries of factors not just the frequency of interruptions. To that end it is highly significant that any time a patrol officer or detective is actually forced to forgo any part of a meal because of an interruption, Bartlett either reschedules (conditions permitting) another full 30-minute break regardless of the time elapsed on the previous one or else compensates him or her for the entire period upon written submission of a compensation request (D. 12(m) ¶¶ 40-46).
In an effort to respond on that score, P.Mem. 10 says (again mischaracterizing the actual evidence):
However, officers generally testified that it was their practice, and perhaps an almost universal practice, not to submit overtime cards if they missed part of their 30 minute lunch period but were able to consume a meal. Even Acting Chief Palmer admitted this. (Palmer dep. p. 28).[13]
But quite apart from the fact that Bartlett really cannot be faulted for the manner in which such choices may have been exercised by individual personnel on their own,[14] what is far more significant is that the non-supervisory members of the department were affirmatively urged to submit such overtime cards (Palmer Dep. 28 ("They are encouraged to. They are told to. They have been told at staff meetings."); Kopanitsanos Dep. 25) and that shift sergeants even solicit such requests when they know that a patrol officer's break has been interrupted (id.; Vergin Dep. 18). Such encouragement is confirmed *687 at the other end as well by the testimony of numerous patrol officers and detectives (Gost Dep. 11-12; Stickling Dep. 10; Nicholas Dep. 14; Sales Dep. 10; Vergin Dep. 18). And as already stated, Bartlett's practice has in fact resulted in a great many requests by officers for overtime payment. From January 1990 through March 1993 patrol officers, detectives and CSOs submitted 138 cards, every one of which was honored (GR 12(m) ¶ 47; Norris Aff. ¶¶ 3-4 and D.Ex. R1).[15]
Thus the evidence reflects (a) that interruptions are extremely infrequent in the first place (see Bagrowski, 845 F.Supp. at 1119), (b) that interrupted lunch periods are often simply rescheduled for another time, obviating any need to apply for overtime in any case (D. 12(m) ¶¶ 40-41),[16] and (c) that for any lunches that cannot be rescheduled, overtime has been granted on request without exception. On those facts it cannot fairly be said that patrol officers' and detective lunch periods are spent predominantly for Bartlett's benefit.
Nor is that conclusion altered by reference to the other mealtime constraints about which the patrol officers and detectives complain here. Though they contend that their time is not really their own (so as to trigger compensability under the principle stated in such cases as Armitage, 982 F.2d at 432), the evidence as contrasted with counsel's arguments shows the patrol officers and detectives exercising substantial free control over their meal breaks (see Cloutier, 834 F.Supp. at 371-72).
Aside from the already-discussed emergency-recall scenario, patrol officers on meal breaks have been and continue to be largely free to do as they please. So long as the patrol officers monitor their radios, they need not tell anyone where they intend to go during their breaks (Leonas Dep. 10). As Gost Dep. 13 put it, "I don't patrol. I don't drive. I don't look for situations when I'm on lunch." Sales Dep. 5 adds that he prefers to stay in the station away from potential problems when he is in his break-time "lax mode." And the detectives are not subject to the radio-monitoring requirement at all.
In addition to eating lunch, the employees may choose to run errands to take care of personal business (Perry Dep. 5; Vergin Dep. 14) or to go home (Perry Dep. 4; Stichtling Dep. 5) or to the house of a friend or relative (Gost Dep. 6) and as for lunch itself, they may choose to eat virtually anywhere, including restaurants in town (Knight Dep. 6; Stichtling Dep. 6). Others sometimes elect to eat in their cars (Leonas Dep. 20; Gost Dep. 18). They may watch a Bears game (Gost Dep. 18; Knight Dep. 7), communicate with others (Knight Dep. 7), read a book, magazine or newspaper (Sales Dep. 5, 7; Gost Dep. 5; Stichtling Dep. 7; Vergin Dep. 14),[17] or simply stay away from all potential situations and relax in the station (Perry Dep. 4; Sales Dep. 5-6; Knight Dep. 6; Vergin Dep. 11).[18] Except for taverns, they are basically permitted to go anywhere they desire within the village (D 12(m) ¶ 26). Indeed, they are permitted to use their police vehicles to get them to their lunch time destinations or to conduct personal business, such as drive-through banking (D. 12(m) ¶ 29; Palmer Aff. ¶ 16; in that respect, see Bagrowski, 845 F.Supp. at 1118).
What has been said to this point dispatches as unfounded the major strands of the relationship that might even arguably confer a right to compensation for the lunch periods. But P.Mem. 9 lists a number of other purported break-time restrictions that, according to the employees, ostensibly call for the *688 conclusion that their time is spent primarily for Bartlett's benefit. Little discussion is needed to dispose of those contentions as well.
First, the fact that the patrol officers (but not the detectives) must remain in their standard uniforms which includes their gun belts (P. 12(n) ¶ 10) does not make a difference (see Department of Labor Opinion Letter; Avery, 24 F.3d at 1347; University Park, 766 S.W.2d at 532). And the reason is obvious: By the very nature of their job, patrol officers may be required to respond to short-notice crises without the delay that would be entailed by having to change back into their uniforms.
It is frankly absurd for the employees to complain that "usually an officer cannot take lunch with another officer" (P.Mem. 9; P. 12(n) ¶ 16) a limitation that is inherently compelled by the limited numbers of personnel and by the need to have some of them on active duty at all times just as there is no substance to the objection that officers are not permitted to leave town during their half-hour breaks (Avery, 24 F.3d at 1347; University Park, 766 S.W.2d at 532). Moreover, D. 12(m) ¶ 31 (uncontroverted by the employees) explains that sergeants have "routinely" granted exceptions when there are requests for permission to leave the village limits for meals nearby.
As for the other criticisms leveled against the applicable restrictions,[19] the rules established by Bartlett are certainly no more stringent (and in some instances are conspicuously less so) than those in other cases in which municipalities have prevailed as a matter of law. For example, Avery, 24 F.3d at 1347 has explained in language that might well have been written for this case (footnote and citation to Lamon omitted):
The City undoubtedly benefits from the restrictions it imposes on the plaintiffs' meal breaks, but the fact that the City benefits from the restrictions does not mean that the plaintiffs' meal breaks are predominantly for the City's benefit. The overwhelming testimony of the patrol officers and patrol lieutenants themselves is that they are free to spend their meal breaks in any way they wish so long as they remain in uniform, leave their radios on, and do not leave the jurisdiction. The detectives need simply leave a phone number where they can be reached in case of an emergency. The plaintiffs may return home, stop at the bank, pick up their dry cleaning, or run other personal errands. In sum, the plaintiffs are able to "comfortably and adequately pass[] the mealtime." No reasonable jury could find that the plaintiffs' meal periods generally are spent predominantly for the benefit of the City. Therefore, the district court correctly held that the meal periods are not compensable under the FLSA....
And relatedly Henson, 6 F.3d at 536 has said:
The only potential restrictions on the officers' use of their meal periods for their own purposes arise from the possibility that citizens might ask them questions and from the monitoring of their radios for emergency calls to return to service. We conclude that these restrictions could not support a finding that the patrol officers spend their meal breaks predominantly for the benefit of their employer. The officers have a full thirty minutes to use for their own purposes and in which to travel to any desired location, subject only to the possibility of being recalled in an emergency. Because the employees' evidence does not *689 create a genuine issue of material fact, we affirm the summary judgment in favor of the police department.
Accord, Armitage, 982 F.2d at 432-33; Bagrowski, 845 F.Supp. at 1118-20; Cloutier, 834 F.Supp. at 371-72; Hill v. United States, 751 F.2d 810, 811-15 (6th Cir.1984) (letter carriers' mealtimes); Birdwell v. City of Gadsden, 970 F.2d 802, 807-10 (11th Cir. 1992) (detectives' on-call time).
In sum, it would be unreasonable to read the evidence as creating a material factual dispute under the principles voiced in Alexander and like cases. Summary judgment is therefore mandated against the patrol officers' and detectives' FLSA claims.
CSOs
Because Bartlett's three CSOs (Guasaferri, Misheikis and Whitaker) have been subject to essentially the same restrictions and privileges as the just-discussed sworn personnel (D.Mem. 6 n. 3), the same conclusion follows as to them. Nothing has been brought to this Court's attention to suggest otherwise. Misheikis Dep. 8-9 is illustrative:
Q: Are you ever called back to active duty?
A: Yes, I am.
Q: How often?
A: Not very often at all.
Q: And when you are called back, is your lunch period rescheduled?
A: Most of the time, yes.
Q: In those times that it's not rescheduled, do you submit overtime cards?
A: Yes.
Q: And are you paid?
A: Yes, I am.
Q: Have you ever been denied overtime when you submitted a card?
A: No.
Mr. Perry: That's it for me.
Again Bartlett prevails as a matter of law.
Clerks
P.Mem. 21 precedes its discussion of Bartlett's clerks with a caption that essentially acknowledges that those employees have an even weaker case for compensation than the sworn personnel.[20] It is true that clerks must also remain ready to return to active duty in the event of emergency, but interruptions of that nature are unsurprisingly infrequent (D. 12(m) ¶ 55; Albee Dep. 20-21 ("Maybe once a month")). Such other claimed inconveniences as requests for assistance or questions from members of the public are also relatively uncommon and usually do not last more than a few minutes anyway (D. 12(m) ¶ 54; Bourgerie Dep. 9-10; and see the de minimis rule cited in Hill, 751 F.2d at 815).
Clerks enjoy the already-discussed right to reschedule any lunch that is cut short (D. 12(m) ¶ 56) or, failing that, to put in for overtime (id. ¶ 57). No clerk has ever been denied such a request (id. ¶ 59), and from January 1990 through March 1993 clerks have submitted and have been paid for 20 such requests (id. ¶ 60).
It is also undisputed that clerks are just as free to engage in personal pursuits during their lunches as the rest of the Bartlett force and they do (D. 12(m) ¶¶ 50-51; Albee Dep. 16-18; Bourgerie Dep. 13; Scianna Dep. 12-13). Just one stay-on-the-premises requirement applies exclusively to clerks: They are not allowed to lunch outside the building when a single clerk is on duty. But that does not alter the result (29 C.F.R. § 785.19(b) says "It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period"; accord, Bagrowski, 845 F.Supp. at 1120 n. 4). Bartlett is entitled to summary judgment against the clerks as well (Kaczmerak v. Mount Sinai Medical Ctr., 28 Wage & Hour Cas. (BNA) 1165, 1166-67, 1988 WL 81633 (E.D.Wis. 1988)).
*690 Sergeants
Any discussion of the factual aspects of the sergeants' claim can be deferred to the section dealing with their contractual right of recovery, for their FLSA claims are barred by limitations. That is so because Section 255(a) bars claims not commenced within two years after the cause of action has accrued.[21] Because Bartlett began to pay its sergeants for their lunch breaks in 1990, this 1993 lawsuit on their part is out of time. Indeed, their Memorandum was devoid of any response to the argument at D.Mem. 9 n. 5 in that regard.
Summary
Each of the FLSA claims has succumbed on analysis, though not all for the same reasons. Complaint Count II is therefore dismissed with prejudice.
Breach of Contract Claims
Complaint Count I rests on identically-worded provisions in two documents promulgated by Bartlett effective October 15, 1985: its Administrative Policy # 11 and General Order No. 8505 (collectively the "Policies"). They set out Bartlett's efforts to set out the impact of the then-newly-issued Department of Labor FLSA regulations on various subjects, including lunch periods:
POLICY STATEMENT
In its recent decision, Garcia v. San Antonio Metropolitan Transit Authority, [469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985)], the United States Supreme Court ruled that local governments are subject to the provisions of the [FLSA].
The U.S. Department of Labor has issued enforcement and compliance regulations to which the Village of Bartlett will adhere. The following information in the PROCEDURES section will outline the effect of this ruling on the Village of Bartlett.
PROCEDURES
* * * * * *
Lunch Periods
Sworn Police Officers: Police Officers will be scheduled for a 30 minute uninterrupted lunch period during each duty shift. The Officer will be free to utilize this time as his/her own and will not be expected to perform any work during the lunch period. An Officer is expected to maintain radio contact with DuComm in the case an emergency arises and the Officer is called to respond.
Periodic radio contact is not considered an interruption unless such contact requires the Officer to leave his/her lunch period to perform a duty. In the event the lunch interruption occurs, an Officer may be rescheduled for another lunch period during the shift if possible. In the event another lunch cannot be scheduled, the time will be considered as paid time at straight time.
The Officer is required to remain on the beat so that the Officer may remain on duty until lunch and return to duty immediately following lunch.
Civilian Police Department: Every employee will be scheduled for an uninterrupted lunch period (30 minutes) during each shift. The employee will not perform any work during the lunch period. If the lunch period is interrupted, it will be rescheduled for a new 30 minutes or considered hours worked.
Bartlett takes issue with the sufficiency of the Policies' language to create a contractual obligation within the boundaries marked out by the seminal decision in Duldulao v. Saint Mary of Nazareth Hosp., 115 Ill.2d 482, 490, 106 Ill.Dec. 8, 12, 505 N.E.2d 314, 318 (1987):
First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of *691 the policy statement. When these conditions are present, then the employee's continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.
But Bartlett is wrong. Its Policies do contain such a clear promise, one that plainly conveys the idea of an offer and was disseminated to the employees in the requisite manner, and one that the employees could unquestionably be said to have accepted by continuing work.[22]
As a backstop position, D.Mem. 4 urges that "the policies do no more than reflect the Village's legal obligations under FLSA."[23] While the Policies do begin with the preface that they will outline the effect on Bartlett of the applicability of FLSA, the employees have it right when they say that the specific measures that Bartlett adopted in that respect were a matter of its own choice. Because Bartlett could have complied in any of a number of ways (such as by setting different types of restrictions or by simply paying for all lunches), the precise promises that it did choose to make were a product of its own independent decision-making and were thus enforceable offers that, when accepted, became enforceable commitments.[24]
But just as the employees are plainly right in their ability to invoke the Policies' promises as a contractual matter, so they are plainly wrong in their characterization of those promises. P.Mem. 8 contends that Bartlett has guaranteed "the right to be completely free from police responsibility during the lunch break," and P.Mem. 12 says that "General Order 85-05 seems to be a global prohibition of work of any kind during the lunch break." Nothing in the language of Bartlett's offer even suggests (let alone actually promises) that employees will be "completely free from police responsibility" or "work of any kind." Instead the Policies expressly contemplate ongoing radio contact and geographic restrictions ("on the beat") and each of the two references to an "uninterrupted lunch period" (one as to sworn personnel and the other as to civilian employees) is expressly coupled with provisions spelling out the consequences of any interruption: the rescheduling of lunch if possible and, if not, payment at straight time.
Thus Bartlett's contractual undertakings are certainly no greater than those already analyzed in the FLSA section of this opinion.[25] And it therefore follows that the contract claims of four categories of employees (patrol officers, detectives, CSOs and clerks) necessarily fail for the reasons already discussed. Just as they were unsuccessful in attempting to demonstrate that their meal breaks were spent predominantly or primarily for the benefit of Bartlett, those employees have been at least equally unable to demonstrate that they were not "free to utilize this time as [their] own" certainly in the manner in which that last phrase is cabined by the other provisions of the Policies discussed in the preceding paragraph. In sum, those four categories of employees have no ground to *692 assert that they have been contractually promised anything beyond what has already been found insufficient to warrant compensation under FLSA.
Bartlett's sergeants' contractual claims, however, pose the need to take a closer look at the precise content of Bartlett's promise as embodied in the Policies. Because the sergeants are responsible for coordinating entire shifts (Carlson Dep. 32; Nicholas Dep. 11), they regularly spend portions of their lunches monitoring their radios. Carlson Dep. 30-32 explained:
I was constantly getting calls [at home during lunch] from officers for information, officers requesting to do things as per orders, go out of their beats requesting permission, and calls from the dispatch system about reassigning calls, or which car should she send to back up another officer.
* * * * * *
With the well on lunch I have to constantly monitor, try to monitor all radio traffic. We had cases where the dispatch system was assigning wrong cars, wrong beat cars to wrong areas because the area was growing so fast and changing so fast the system wasn't quite keeping up, and they were assigning inappropriate backup cars.... So I had to monitor this to make adjustments.
Carlson went on to describe those interruptions as occurring "almost daily" (id.). To much the same effect (though not characterizing the interruptions in as much detail or as being quite so extensive), see Kopanitsanos Dep. 12-13 and 23-24 and Nicholas Dep. 12-13. All those versions must of course be credited on the current motion.[26]
Because the sergeants' FLSA claims have been barred by the statutory limitations period, there is no occasion to parse the FLSA standard to examine whether such interruptions rendered the sergeants' meal times "predominantly for the benefit of the employer" or caused the sergeants' time to be "devoted primarily to official responsibilities" (Alexander, 994 F.2d at 337).[27] Instead the sergeants' contract claim poses the question whether Bartlett has reneged on the promises that it made in the Policies, promises that have not been rendered unenforceable by the ten-year period applicable to written contracts under 735 ILCS 5/13-206.
In that respect the key to the issue lies in the Policies' express limitation on the concept that the police personnel "will be scheduled for an uninterrupted lunch period":
Periodic radio contact is not considered an interruption unless such contact requires the Officer to leave his/her lunch period to perform a duty.
Clearly the sergeants have not shown that Bartlett has violated that pledge. Indeed, the very burden about which they complain is that imposed by periodic radio contact[28] something that is unambiguously exempted from the coverage of Bartlett's promise unless the officer is compelled to leave lunch to perform his or her duty. No evidence whatever has been tendered that such was the case or, if it were, that the sergeants were not provided with the contractual alternatives of either rescheduling their meal periods or receiving the monetary equivalent.[29]
*693 In summary, the sergeants have failed to create a reasonable inference that Bartlett has broken its promise to them as framed in the Policies. Accordingly they, like the employees in the other four categories, have failed on their contract Count I as a matter of law.
Conclusion
There is no genuine issue of material fact as to any of the claims of any of the plaintiff employees,[30] and Bartlett is entitled to a judgment as a matter of law. This action is dismissed with prejudice in its entirety.
NOTES
[1] CSOs perform functions such as animal control, departmental errands, report-taking, routine patrol and the writing of parking tickets (P.Mem. 20).
[2] This District Court's General Rule ("GR") 12(M) facilitates the resolution of Rule 56 motions by requiring all movants to submit statements of assertedly uncontested facts, with citations to the record in support of each. GR 12(N) requires each nonmovant to respond to the GR 12(M) statement point by point, with citations to the record in support of (1) any claimed contest of the movant's version of the facts and (2) any additional facts that the nonmovant chooses to assert. Instead of complying with GR 12(N), the plaintiff employees have ignored Bartlett's submission and have instead proffered what amounts to their own GR 12(M) statement one that is not directly responsive to, and is totally silent with respect to, most of the facts set out by Bartlett. In so doing the employees have subverted GR 12's valuable function of fleshing out the issues actually in dispute and under such circumstances, this opinion treats Bartlett's facts as admitted (Doe v. Cunningham, 30 F.3d 879, 882-83 (7th Cir.1994); Flaherty v. Gas Research Inst., 31 F.3d 451, 452-53 (7th Cir.1994); and other cases cited in both opinions). Citations to the parties' GR 12 statements will take the forms "D. 12(m) ¶____" and "P. 12(n) ¶____."
[3] All of this opinion's citations to FLSA provisions will take the form "Section ," employing the Title 29 numbering rather than FLSA's internal numbering. As will be seen later, some of the case law employees the latter, citing Section 207(k) as "Section 7(k)." That difference in usage should create no confusion, given the obvious correlation between the two numbers.
[4] It will be recalled that sergeants were fully paid for all lunch periods during that time frame.
[5] As Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991) teaches, on the current Rule 56 motion this Court is not required to draw "every conceivable inference from the record only those inferences that are reasonable" in favor of the nonmovant employees.
[6] This opinion was already in final form and awaiting the transcription of its last set of edits when on August 12 Bartlett's counsel were good enough to file a document citing Avery as additional authority. As the opinion reflects, Avery had already been spotted by this Court and built into the text in a number of places.
[7] FLSA itself does not define "work" as such (Alexander, 994 F.2d at 336).
[8] This Court's opinions rarely engage in any detailed discussion of the facts of other cases to demonstrate how they are distinguishable from (or parallel to) the case under consideration. That type of discussion is often encountered in advocates' briefs (attempting either to explain away or to draw to their aid some earlier precedent), but this Court's view is that simply comparing cases analytically in the course of reading them almost always does that job. In this instance that is certainly true of Wahl v. City of Wichita, 725 F.Supp. 1133 (D.Kan.1989), a case discussed at some length in Alexander, 994 F.2d at 338-39. Just to lay that case alongside this one, and to observe the dramatic contrasts between the two cases' respective levels of employee entitlement and their respective constraints on the employees' activities, is enough to demonstrate graphically the inapplicability of the Wahl analysis and result to this case.
[9] As for the detectives, D. 12(m) ¶ 30 says in part:
Detectives are not required to wear uniforms, monitor radios or remain able to return to active duty during their meal breaks.
[10] P.Mem. 10 is guilty of material hyperbole in asserting:
The plaintiffs [sic] officers who gave depositions reported varying degrees to which they were called off lunch to return to duty.
Although patrol officer Rogers Dep. 42-43 testified to somewhat frequent interruptions when he "first started" (four and one-half years ago, id. 5-6), he admitted that increased staffing has alleviated the problem (id. 43), and he later equivocated on his estimates anyway (id. 44).
[11] D. 12(m) ¶¶ 34-35, 39; Gost Dep. 12 (stating that he has never been called back); Knight Dep. 8-9 ("several times" in the past ten years); Perry Dep. 6 ("several times a year"); Sales Dep. ("once or twice a month"); Vergin Dep. 14 (two or three times per month); Stickling Dep. 8 (uninterrupted lunches were the norm); Leonas Dep. 11 (uninterrupted lunches "90% of the time"); Kopanitsanos Dep. 21 (not contacted very often before she became a sergeant).
[12] Armitage, like our Court of Appeals in Alexander, relied primarily on Lamon.
[13] [Footnote by this Court] That last citation is flat-out wrong. Page 28 of the Palmer deposition says nothing of the sort. All that he testified to was his own personal decision not to put in an overtime card when, as a sergeant, he had (for example) used only 20 instead of 30 minutes of his lunch break at the time that he was called back to duty.
[14] In addition to Palmer's testimony referred to in n. 13, see Stickling Dep. 10 ("It's just personal choice"); Vergin Dep. 19 ("There's times I forgot to put in [sic] overtime card at the end of a shift. If I missed it, that's my fault"); Leonas Dep. 13 (providing reasons (such as "too busy") that he did not get around to submitting cards); Gost Dep. 11; Nicholas Dep. 14.
[15] P. 12(n) ¶ 27 seeks to create a factual issue in this area of the case. But an examination of the record citations does not disclose any material admissible evidence negating Bartlett's version.
[16] Nowhere do the employees even insinuate that anyone discouraged them from seeking to reschedule a new meal break.
[17] Plaintiffs seek to make something of Carlson Dep. 14, which explained that a rule has been instituted proscribing newspaper reading in squad cars. Apparently some members of the public, not realizing that such officers were on break, perceived the police as slacking off their duties. No one disagrees, however, that officers are free to read whatever they want anywhere else.
[18] P. 12(n) ¶ 17 asserts "Officers are expected to maintain a police presence in town and be visible," but that too is really unsupported by the record.
[19] For one thing, P.Mem. 9 says that patrol officers are not permitted to sleep or nap during lunch. Such a requirement flows directly from the fact that Bartlett is within its rights to oblige its patrol officers to monitor their radios. Similarly, the purported regulation against using the Department weight room during lunch (id.) is really nothing more than an extension of the rule that patrol officers cannot remove their gun belts, shirts or vests while working out (Gost Dep. 17). As for the contention (again at P.Mem. 9) that sworn personnel cannot eat in places that serve alcohol, that simply misrepresents the record, for they can and in some instances (Vergin Dep. 21-22) regularly do just that. That differs sharply from the actual restriction against eating lunch in a nonsegregated drinking establishment such as a tavern (Carlson Dep. 14). See also Hill v. U.S., 751 F.2d 810, 814 (6th Cir.1984). There is no need to prolong the discussion by treating with each nit advanced by the employees: Their totality is no more probative than they are individually.
[20] Consistently with that, only a bobtailed statement in P. 12(n) ¶ 29 addresses the clerks' situation (in addition to the employees' total failure to respond to D. 12(m) in that respect, as in all others).
[21] Although wilful violations extend the statute to three years (id.), the sergeants have wisely declined to advance such a position in light of Bartlett's explicit protections against uncompensated lunch-hour work.
[22] It may be noted parenthetically that patrol officers and detectives (but not sergeants) are unionized and hence have been covered by collective bargaining agreements ("CBAs") since 1987. Like the sergeants, non-sworn civilian personnel have not been and are not covered by any CBA. Although Bartlett contends that the CBAs preclude any contractual claim by the covered employees based on the Policies, that argument is totally empty not worth discussing.
[23] Relatedly, Bartlett also advances the untenable position that the FLSA "preempts" the employees' contract claim. But it is obvious that a municipality can contract to provide more protection against uncompensated overtime than FLSA requires (Avery, 24 F.3d at 1348; Atlanta Professional Firefighters Union v. City of Atlanta, 920 F.2d 800, 806 (11th Cir.1991)). And as a matter of logic, that greater protection can just as well take the form of a promise to pay for a longer time period (that is, the limitations period for a written contract rather than FLSA's shorter limitations period) as, for example, the form of a promise to pay double time rather than time-and-a-half for overtime.
[24] Indeed, Avery, 24 F.3d at 1348 upheld a breach of contract claim even where the employees' handbook did nothing more than incorporate FLSA's terms by reference.
[25] Though it is unnecessary to pause on the point for the moment, this opinion will explain a bit later why Bartlett's contractual undertaking is actually less demanding than FLSA's in at least one critical respect.
[26] With the exception of the greater frequency of interruptions that has been reflected in the text, nothing in the evidence or in counsel's argument suggests that the sergeants' factual situation was any different from that of the patrol officers and detectives. It must be concluded that all of the freedoms of those employees as to how their lunch periods could be spent, as described earlier in this opinion, applied to the sergeants as well.
[27] Both "predominantly" and "primarily" are of course terms of quantification connoting a substantial weighting in the indicated direction. But as the text says, it is unnecessary to decide whether under the circumstances that inquiry would pose an issue for a factfinder or whether it could be resolved as a matter of law.
[28] Although it is hardly necessary to elaborate on a word in such common usage, it is instructive to note that Webster's Third New International Dictionary 1680 (unabridged, 1986) defines "periodic" as "occurring frequently from time to time" and also lists "recurrent" and "frequent" as synonyms all of those terms providing a total match for the pattern of conduct that the sergeants describe.
[29] Indeed, each of the testifying sergeants although complaining of interruptions has acknowledged that he or she had those rights but did not always choose to exercise them (Carlson Dep. 19; Kopanitsanos Dep. 13-14; Nicholas Dep. 14-15, 18). Of course the sergeants are not free thus to forgo their known contractual rights as a voluntary matter, and then to sue Bartlett to enforce those rights.
[30] With the substantive claims in Counts I and II disposed of, the employees' claim for an accounting in Count III necessarily fails as well. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261618/ | 290 Md. 114 (1981)
428 A.2d 434
TIMOTHY CLYDE POOLE
v.
STATE OF MARYLAND
[No. 42, September Term, 1980.]
Court of Appeals of Maryland.
Decided April 21, 1981.
The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.
*115 Deborah K. Handel and Stephen B. Caplis, Assistant Attorneys General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
COLE, J., delivered the opinion of the Court.
Because a specific type of impeachment testimony placed in evidence by the State over defendant's objection egregiously impaired his ability to present his defense, we shall, in this case, reverse the defendant's conviction for murder and set aside his sentence of death.
Timothy Clyde Poole was convicted of premeditated murder, felony murder, robbery with a dangerous weapon, and use of a handgun in a crime of violence by a jury in the Circuit Court for Calvert County. This same jury next sentenced him to suffer death. In addition to the death penalty, Poole was sentenced to life imprisonment, twenty years (concurrent), and fifteen years (consecutive). Because Poole was sentenced to die, all of his convictions and sentences are directly reviewable by this Court. Maryland Code (1957, 1976 Repl. Vol., 1980 Cum. Supp.), Article 27, § 414.
The parties have set forth the circumstances giving rise to the charges in the following statement of facts:
David Creel, an eighteen year old student, was working at MacLarty's Pharmacy on the evening of October 22, 1979. According to Creel, at about eight o'clock that evening, two black men came into the store. One put a mask over his head as he walked down some steps to the backroom where Dr. David MacLarty was preparing prescriptions. The other (identified by Creel as Appellant) walked up to Creel who was behind a counter and pointed a shotgun at him. The man, not wearing a mask, told Creel to lock the front door. Creel walked to the front door with the gunman holding his belt and pointing the shotgun at his head.
After the man watching Creel had closed and locked the front door, Creel heard two shots fired in the backroom. Dr. MacLarty said "Is there anyone *116 else out there?" The gunman ordered Creel to say no and then forced Creel to walk ahead of him into the backroom where they found the masked man (Steven Horad) lying on the floor breathing hard and with a head wound. Dr. MacLarty stood by the safe.
Creel's assailant stepped in front of him and shot MacLarty in the chest with a shotgun. MacLarty fell to the floor and lay there, having trouble breathing. Creel was ordered to get the money. The assailant picked up a gun lying beside MacLarty and pointed it at MacLarty's head. Creel said "You don't have to do that." The man, holding the gun an inch from MacLarty's face, pulled the trigger twice without result. Creel surrendered about $150 to the assailant who left the premises. Both MacLarty and Horad later died.
Mark Blob recalled that at about the time of the shooting he and some friends were sitting on a curb in the vicinity of MacLarty's when he noticed three black men drive slowly by in a "late `60's" silver Cadillac with a black vinyl roof. Blob remembered the incident because the men in the car were "looking at us, looking at us real hard." On March 25, 1979, Blob participated in a photographic identification procedure wherein he selected two photographs as looking "like" the men in the car. The photographs selected were of Appellant and David Brown (unrelated to this case). Blob identified Horad as the man sitting in the back seat.
Two address books were taken from Horad's pocket. In one of these, containing a hundred or so listings, was the name "Poole" with two telephone numbers.
When told of the shooting incident the next day, Appellant showed "no reaction whatsoever." Appellant also said that he had not seen Horad since the afternoon of the day of the shooting. Further, Appellant said that at the time of the shooting he *117 was with his girlfriend, Jennifer Lanier, and her roommate, Tamara White, at 3-H Neptune Court in Baltimore County.
At the time of the shooting Appellant was signed out of his residence at "Dismas House" on a six hour pass for 3-H Neptune Court.
Both Tamara White and Jennifer Lanier denied that Appellant had been at 3-H Neptune Court on the evening of the shooting. Lanier also testified that she knew that sometimes Appellant used her address as a "sign out" location but went other places. Lanier did not recall ever having seen Appellant operating an automobile. White, however, said she remembered having seen Appellant operating a large "darkish gray" car of undetermined vintage.
Yvonne Bethea testified for the defense. Bethea stated that on the evening of the shooting Appellant was at her residence at 1604 East Monument Street (about a "ten minute walk" from Dismas House) helping her with school work with which she was having difficulty. (Appellant was a student at Morgan State University at the time of the incident at MacLarty's Pharmacy.)
Poole has raised eight issues[1] in this appeal; however, because of the disposition we make of his fifth issue it will *118 be unnecessary for us to address any of the other issues in detail.
Poole contends the trial court committed reversible error in allowing the State to impeach its own witness, thereby prejudicing his defense and depriving him of a fair trial. He maintains the trial court permitted the State to violate the so-called witness "voucher" rule.
There exists in this State the general rule that a party who produces a witness in court vouches for that witness' credibility and trustworthiness, and no direct attack upon his veracity should be made by the producing party in the absence of surprise, hostility, or deceit. Patterson v. State, 275 Md. 563, 570, 342 A.2d 660 (1975); Proctor Elec. Co. v. Zink, 217 Md. 22, 32, 141 A.2d 721 (1958). Recourse to the right to impeach in such circumstances is strictly limited to those cases in which the party calling the witness has been misled and surprised, or entrapped, to his prejudice. Fleming v. Prince George's County, 277 Md. 655, 678, 358 A.2d 892 (1976); Green v. State, 243 Md. 154, 157, 220 A.2d 544 (1966); Bruce v. State, 218 Md. 87, 95, 145 A.2d 428 (1958). To avoid prejudice, a trial court may, in the exercise of its sound discretion, permit a party to impeach its own witness upon a showing (1) that the calling party is surprised; (2) that the witness' testimony is contrary to prior statements made by this witness to a party, his attorney, or a person to be communicated to them; and (3) that the statement involves facts material to the case. Fleming v. Prince George's County, supra, 277 Md. at 677; Sellman v. State, 232 Md. 344, 348, 192 A.2d 788 (1963). Central to the operation of the exception, however, is the element of prejudice. It is not sufficient to show that the evidence of the witness is not beneficial to the calling party, or that it disappoints his expectations, even though justified. Fleming v. Prince George's County, supra, 277 Md. at 678-79; Travelers Ins. Co. v. Hermann, 154 Md. 171, 179-80, 140 A. 64 (1928).
It is only when all of the above requirements have been met that the trial court, in its discretion, may allow the surprised and damaged party to examine the witness in *119 order to establish the fact that the witness has made a prior statement inconsistent with his present statement from the witness stand. Proof of the prior statement is permitted, not for the purpose of impeaching the general character of the witness, but rather to show why the party has called him. The purpose of this showing is to protect the party who has put him on the stand. Fleming v. Prince George's County, supra, 277 Md. at 678; Green v. State, supra, 243 Md. at 157; Murphy v. State, 120 Md. 229, 233, 87 A. 811 (1913); Smith v. Briscoe, 65 Md. 561, 568-69, 5 A. 334 (1886).
It is within this framework that the witness may be cross-examined by the calling party as to his prior contradictory statement, and, if the witness denies having made the statement, the calling party may offer independent proof thereof. Patterson v. State, supra, 275 Md. at 571; State, use of Chenowith v. Balto. Contracting Co., 177 Md. 1, 15, 6 A.2d 625 (1939). Such proof, however, is not substantive evidence; its only evidentiary effect is to impeach the credibility of the witness. Id.
In the instant case, the determinative issue arose out of the following factual setting. The State established that on October 22, 1979, Poole signed out of Dismas House, the half-way correctional facility where he resided, and gave Lanier's address as his destination. The State produced Detective March who testified that Poole told him he was with Jennifer Lanier and Tamara White, at their house, on the night of the shooting. However, when White took the stand, she testified that Poole had not been there. Lanier, the State's final witness, also testified that Poole was not there the night Horad and MacLarty were shot.
Poole contended at trial (and the State's witness, Lanier, admitted) that it was common practice for him to sign out for Lanier's house when in fact his destination was elsewhere. Thus, when confronted by police the morning after the shooting, it may have been natural for him to say he was at Lanier's house so that his story would be consistent, not only for the police, but also for the officials at Dismas House. *120 However, Poole's alibi was not that he had been with Lanier the night of the shootings, but rather that he had been with Yvonne Bethea (his sole witness, upon whom he rested his entire defense) helping her with homework at her house. Yvonne Bethea so testified.
It is with this backdrop that we analyze the impact of the prosecution's examination of Jennifer Lanier, the State's final witness:
Q. What was your conversation with Timothy Clyde Poole the
morning of October 23, 1979?
A. Well, we just talked.
Q. Talked about what?
A. School and people.
Q. Did you have a conversation concerning his whereabouts on
the day prior, October 22, 1979?
A. No.
Q. Had you ever indicated to anyone that you had that
conversation concerning his whereabouts?
A. Yes.
Q. What was that, any conversation that you indicated?
MR. CARDIN: Objection.
COURT: Overruled.
MR. ANDERS:
Q. Go ahead?
A. I had told the Officer that he had told me to say he was
there the night before.
Q. Did you tell
COURT: Just a minute. Would you read the answer back, please, Mrs.
Bates? The Jury didn't hear it.
*121 REPORTER: `I told the Officer that he had told me to say he was there
the night before.'
MR. ANDERS: May we approach the bench, Your Honor?
COURT: Yes, you may.
(Whereupon a conference at the bench is held with the
defendant present and out of the presence of the Jury, and
the following proceedings were had:)
MR. CARDIN: Your Honor, it would appear to me that the State is at this
point trying to impeach his own witness. If that's what he
is doing, I think it's incumbent upon the State to proffer
to the Court that it is surprised, caught by surprise by
the witness' testimony. Otherwise, I don't think it's proper
for the State to impeach his own witness.
MR. ANDERS: Well, the State's in the position where this witness has
given several stories concerning what has occurred, and I'm
really calling her to explain which is true and why. I
don't know that I'm attempting to impeach her. I'm not
claiming surprise because whereas Mr. Cardin has heard
stories that she's told, she is a necessary witness and I'm
calling her to explain what occurred and what she said
before and why.
COURT: Well, it seems to me in this case that although you may have
had more than one story and Mr. Cardin objected, you didn't
have
*122 any choice but to ask the question, and then having asked
it you now the matter which is inconsistent apparently
with the first statement given. I really don't think this
amounts to anything other than to demonstrate to the Court
that she is trying to help the defendant if she could
MR. ANDERS: Beg your pardon?
COURT: I said I think it's pretty obvious to the Court that she is
in a tough spot and it is certainly obvious to the Jury
that she's in a tough spot. She apparently is trying to help
the defendant if she can. It's only natural since they're
boyfriend, girlfriend. To that extent I think you have
demonstrated to the Court that you did have knowledge of
another statement and she had said that she made other
statements.
I sustained the objection that Mr. Cardin made when I
thought he was right and I overruled it when I thought he
was wrong. I don't think you're impeaching your witness by
bringing out more than one story, which everybody knows.
(Whereupon the conference at the bench is concluded, and the
following proceedings were had:)
MR. ANDERS:
Q. Jennifer, to clear this up, you indicated that you told the
police originally that Timothy had come
*123 over to your house and asked you to tell the Police that he
was at your house the night before, is that right?
A. Yes, sir.
Q. And he was not at your house before?
A. No.
Q. And your testimony today is that you just had a general
conversation concerning what on October 23rd when he came
over to your house?
A. School mostly, because I wasn't going to school that day.
We agree with Poole that, when the State elicited Lanier's prior statement, after her sworn testimony that she had never conversed with Poole about his whereabouts on the day of the shootings, this constituted impeachment. It is also apparent from this dialogue that the State was not surprised by Lanier's sworn testimony; in fact, surprise was expressly disclaimed. Equally clear is the basis for our conclusion that Lanier's in-court testimony was not prejudicial to the State's case. Lanier's "No," meaning that she had not conversed with Poole about his whereabouts, was simply not beneficial. The State had established all of the elements of its case; Lanier's "No," did nothing to advance or hinder it. In short, two of the prerequisites for invoking the exception to the voucher rule were absent.
Nevertheless, the State contends, Poole's statement to Lanier constituted an "admission by conduct," and as such, is not excludable as hearsay, but is independently admissible as substantive evidence. What the State overlooks is that it is not Poole's statement with which we are concerned. It is Lanier's prior, out-of-court statement which is at issue here. Thus, even if Lanier had been properly examined on direct, her prior, unsworn statement would not have been *124 admissible to prove the existence of Poole's statement, which was contained therein.
In Green v. State, supra, no error was found in allowing the State to impeach its own witness on the basis of surprise; however, treating the witness' prior inconsistent statement as having substantive value on the issue of the defendant's guilt or innocence was held to constitute prejudicial error. On this basis, Green's conviction was reversed. Thus, even where surprise is shown, "[p]rior statements produced at the trial to show the party calling the witness has been surprised by the witness' testimony, and why the witness was called, are not probative evidence on the merits and are not treated as having any substantive or independent testimonial value." 243 Md. at 158.
The State's rejoinder is that, in any event, Lanier's statement that Poole had told her to say that he had been at her house was harmless as merely cumulative to other evidence which tended to show that Poole was not with Lanier on the night of the shootings. We disagree. This statement is more than just cumulative to White's and Lanier's testimony; it cuts far deeper. This evidence permitted the jury to infer not only that Poole was not at Lanier's house, but also that he had done something that night, the fact of which he wanted to hide and for which he needed to invent an alibi. It permitted the jury to infer that Poole had no innocent explanation for his whereabouts that he had gotten himself involved in some kind of serious trouble.
It is also apparent to us that Lanier's prior statement cast a shadow over the credibility of Yvonne Bethea. If the jury believed Poole attempted to persuade Lanier to lie, might not they also conclude that Bethea's testimony was perjured? Without Lanier's prior statement Poole had, at least, the opportunity to present to the jury a defense untainted by the suggestion that he had a propensity to tamper with witnesses. We find that the admission of Lanier's statement was fraught with prejudice. Because of this error, the judgments must be reversed and a new trial granted.
*125 While the disposition we make of Poole's fifth issue makes it unnecessary to address the other points raised, we believe that since a new trial must be had it will be of some guidance to the trial court to make two observations with respect to the sentencing phase of a capital case.
First of all, Article 23 of the Maryland Declaration of Rights provides:
In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.
This provision applies to the trial stage of the proceeding and refers explicitly to the evidence necessary to sustain a conviction. It does not apply to the jury's role in a sentencing proceeding. See Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980).
Secondly, we strongly discourage any comment by counsel in their arguments to the jury concerning appellate review of a death sentence. Such comments have no relevance to the jury's duty of determining the existence of the various aggravating and mitigating factors, and in deciding whether, upon balancing these factors, a death sentence should be imposed; rather, they tend to encourage the jury to believe that it can shift part of its responsibility to another body. We view such arguments as improper. See Shoemaker v. State, 228 Md. 462, 180 A.2d 682 (1962); see also Moore v. State, 240 Ga. 807, 243 S.E.2d 1, cert. denied, 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 249 (1978); State v. Berry, 391 So.2d 406 (La. 1980); State v. Jones, 296 N.C. 495, 251 S.E.2d 425 (1979); State v. Gilbert, 273 S.C. 690, 258 S.E.2d 890 (1979).
Judgments of the Circuit Court for Calvert County reversed and case remanded to that court for a new trial.
NOTES
[1] Is the death penalty as promulgated in Maryland Code, Art. 27. Sec. 413 unconstitutional?
2. Did the trial judge err in refusing to take curative action after the prosecutor improperly commented on Appellant's impending failure to take the stand?
3. Was the evidence sufficient to justify Appellant's conviction of murder as a result of the death of his alleged accomplice?
4. Should the trial judge have granted a continuance to permit the police officer who had prepared the offense report to testify?
5. Did the trial judge err in permitting the State to impeach its own witness?
6. Did the trial judge err in permitting the State rebuttal argument in the sentencing phase of the proceedings?
7. Did the trial judge err in refusing to grant a continuance to permit the preparation of a presentence investigation report?
8. Did the trial judge err in permitting the prosecutor to make improper and prejudicial comments during the sentencing procedure? | 01-03-2023 | 10-30-2013 |
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GIBSON et al.
v.
RUSTIN.
No. A08A2319.
Court of Appeals of Georgia.
March 27, 2009.
*800 Hulsey, Oliver & Mahar, Theodore Wesley Robinson, for appellants.
Stewart, Melvin & Frost, Gainesville, Frank Armstrong III, for appellee.
BARNES, Judge.
This is the appeal of a judgment, following a bench trial, fixing a boundary line between property owned by Robert Gibson, Virginia Gibson, the Whelchel Family Partnership, L.P., Roy Lee Gibson, Jimmy Curtis Woods, Billy Reeves, Carol C. Garrett, James H. Cain, and Bertie H. Cain (hereinafter "Appellants")[1] and Jesse Rustin following two actions to quiet title and for ejectment. The actions were consolidated for trial. The Appellants contend that the court: (1) erroneously disregarded pertinent evidence regarding the boundary line as hearsay, (2) erred by holding that the conveyor of the property could not contend a line different from that contained in the deed to Rustin, (3) erred in disregarding testimony as to the location of the "railroad iron" located on the northern portion of the disputed line, (4) erred in finding the description of the property contained in Rustin's deed to be unambiguous, and (5) erred in finding no evidence of adverse possession by Whelchel or his successor in title to support the boundary line proposed by Appellants. They also contend that the boundary line as determined by the trial court is not supported by the evidence. For the reasons set forth below, we affirm.
On appeal, a trial court's factual findings in a bench trial must be deferred to when supported by any evidence. See Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544, 546, 382 S.E.2d 388 (1989).
As such, the sole question for determination on appeal is whether there is any evidence to authorize the trial court's judgment. It is our duty to construe the evidence to uphold the judgment rather than upsetting it. This is true regardless of whether evidence also existed that may have supported the appellant's position. In the absence of legal error, an appellate court is without jurisdiction to interfere with a judgment supported by some evidence.
(Citations and footnotes omitted.) Sledge v. Peach County, 276 Ga.App. 780, 781-782, 624 S.E.2d 288 (2005).
*801 The underlying dispute concerns the exact location of the boundary line joining the northeast and southeast corners of Rustin's land. The evidence showed that the disputed property, land lot 163, was once owned by a common grantor, Johnnie Whelchel. Rustin purchased a 70.95-acre tract of land from Whelchel in May 1965,[2] and the deed also referenced a 1965 survey conducted by Jacque Williams. The deed described Rustin's property as "taken from a plat drawn by [Williams] dated April 30, 1965." The plat shows a spring to the east of Rustin's property on what was then Whelchel's land, but no other natural landmarks or monuments are referenced in the deed or plat. Rustin testified that the spring was not on the land he purchased from Whelchel. The four corners of Rustin's property are established by two land lot corners, not in dispute, and points at specific distances, in dispute, on the southeastern and northeastern corners.
Rustin had his property surveyed again in 2003 by John Gaston. The Gaston survey used all of the past deeds associated with Land Lot 163, before and after Rustin's deed, to compute the outline of Rustin's property and the associated properties. The Gaston survey revealed a closure failure in the Williams survey of approximately 12 feet, but the surveyor testified that such deficiencies were acceptable in view of the less accurate equipment used in the 1965 survey. The metes and bounds on the deed's description of Rustin's property also did not coincide with the calls on the flats, which the surveyor explained to be a common scrivener's mistake during that time period.
Whelchel next conveyed a tract of land to Mattie Gibson in 1970, who conveyed a portion of that tract to her son Robert Gibson later that year. Robert Gibson testified at trial that there was no survey conducted of his property, but he and his father came up with the legal description by measuring the property. According to Gibson, Whelchel showed him that a railroad pipe had been set at the southwestern corner of the property as one corner of the Rustin and Whelchel boundary, and an iron pin located above the spring as another corner. Gibson said that he and his father surveyed the land based on what Whelchel told them was the boundary line and measured off "what we thought was 15 acres," followed "choppings" and set pins at the corners of his property in addition to a pin he saw above the spring, and the pipe on the corner of Rustin's property. He testified that Whelchel never saw what they marked off, and that the first time he saw Rustin's deed was "when [Rustin] put up a fuss that we was over on it." Gibson had the property surveyed in 2002 and it depicted the corners as marked by him and his father.
In 1974, Mattie Gibson also conveyed property to James Cain, her son-in-law. He testified that he walked the property line with Gibson and Whelchel, and recalled seeing "two to three pins" on the property. He also testified that his property had always contained the spring. Cain had his property surveyed in 1990 and testified that the corners on the survey were the same corners that were originally marked and designated by the pins.
In 1973, Whelchel sold a third tract along the southern portion of the Rustin property to William Holtzclaw, who then conveyed the property to Reeves in an undated deed which was recorded in 1978. Reeves testified that he walked the property lines in 1978 before he received title and that the corner pins were clearly located and in the same location. A plat done in 1973 for Holtzclaw is included in the record. The surveyor who created the Holtzclaw plat testified that he determined the boundaries of the property "entirely on the information given to [him] by Mr. Whelchel." He further testified that he put down two pins on the northern boundary of the property and that there was a pin at the southwestern corner. He did not talk to *802 Rustin at the time regarding the boundary, and he did not have a copy of Rustin's plat when he surveyed the property. The surveyor also testified that he found a wooden stake slightly north of the iron pin marking the southwestern corner of Rustin's property and "physical evidence of where a line had been trimmed as a part of the survey for the conveyance to [Rustin]."
The other tracts at issue are owned by Woods and Roy Lee Gibson. Woods acquired title in 1981 and 2003, and also testified that at the time he walked his property all of the corners were clearly marked by the original pins. Roy Lee Gibson acquired his property in 1997 from Whelchel's widow, and testified that Rustin told him that the "railroad iron" sticking our of the ground near his property was Rustin's property line.
The last tract bordering Rustin's land is owned by the Whelchel Family Partnership. One of the family members testified that the land had never been surveyed but that they walked the property every Thanksgiving. He also testified that Rustin indicated to him that the railroad iron was the boundary line between their properties. Whelchel was deceased at the time of the trial.
In 2005, Rustin filed a petition to remove a cloud from his title and for trespass and ejectment against only Robert and Virginia Gibson. He complained that the Gibsons had built a well-house and maintained a garden on his property and were disputing his right to build a fence. In 2007, the Appellants filed a petition against Rustin to remove cloud from their title, establish a boundary line, and for ejectment. The actions were consolidated for the subsequent bench trial.
Several experts also testified at trial, giving different opinions regarding the boundary line based upon conflicting surveys. The deed calls showed the distance from the southwest land lot to the southeastern point in dispute to be 1,248 feet, but this measurement would include the spring, which the Williams' plat shows to be east of Rustin's property line. The Appellants contend that the distance is 877.46 feeta difference in footage of about 370 feet. The surveyors agreed that it was impossible to "run the distances and courses that are called for in the [Williams] plat and still end up west of the spring." Following the bench trial, the trial court entered a judgment fixing the boundary line in accordance with Rustin's original 1965 survey and the Gaston 2003 survey, and testimony from Rustin regarding the location of the spring. The trial court found that the
Defendants principally rely upon traditionary evidence of ancient landmarks of long standing to establish the boundary line they contend. Only the statements by Whelchel were proffered as such evidence. No evidence was proffered from any other source as to the reputation of any marker pointed out by Whelchel as the boundary line between the parties['] property. Whelchel had parted with his title to the Rustin property at the time of all such conversations or statements. He could not then contend the line separating the property from the parties was different from the line described in the deed from Whelchel to Rustin. There was no evidence of any act of adverse possession by Whelchel or his successors in title to the line they now contend. None of the property of the Defendants was fenced or otherwise enclosed.... The traditionary evidence proffered, whether admitted or not, was hearsay and specifically related to what Whelchel said about the property line, and thus not probative. There was no independent evidence of the reputation in the neighborhood of the boundary line dividing the property conveyed by Whelchel to Rustin. Rustin has the oldest and superior title to the land in controversy and he entered into possession of the land first. The description of the property in Rustin's deed is unambiguous except for the plat which indicates the spring upon the Cains' land is not within the property conveyed by Whelchel to Rustin.
The trial court enjoined the defendants from trespassing on the property and awarded Rustin nominal damages against each defendant, except Garrett, in the amount of $1. It did not award attorney fees, punitive damages or expenses of litigation.
*803 As noted above, if any evidence supports the finding of the trier of fact as to the location of markers in a boundary line dispute, the finding is not clearly erroneous and we will not disturb it on appeal. Youngblood v. Youngblood, 263 Ga.App. 820, 821(1), 589 S.E.2d 602 (2003).
1. Appellants first contend that the trial court erred in finding that statements made by original grantor Johnnie Whelchel were hearsay and not probative.
"Traditional evidence as to ancient boundaries and landmarks shall be admissible in evidence, the weight to be determined by the jury according to the source from which it comes." OCGA § 24-3-13, Ledford v. Hill, 82 Ga.App. 299, 311(7), 60 S.E.2d 555 (1950). "Such evidence may be resorted to in order to establish a boundary line." Id. However, testimony of what specific persons said about a specific pin is hearsay and inadmissible. Collier v. Stokes, 213 Ga. 464(2), 99 S.E.2d 821 (1957). In Collier, the Supreme Court held inadmissible evidence related to what the witness had been told by her father and a surveyor over 30 years before about the location or meaning of a certain pin.
The Court's finding in Collier is applicable here, in that
[t]he evidence here offered was not as to the general reputation of the pin in question or as to the witness's knowledge of the pin. What was sought was what [Whelchel] said about a specific pin. It is clear that this type of testimony was all that was ruled out by the trial judge, and that such testimony, being hearsay and inadmissible, was properly ruled out.
Id. See Martin v. Atkinson, 7 Ga. 228, 236 (1849) (ancient boundaries, corners, and station trees cannot, generally be established otherwise than by reputation).
2. The Appellants next contend that the trial court erred in finding that Whelchel could not contend a property line different from the one in Rustin's deed.
While one is the owner of land, what he says and does in respect to fixing the boundary thereof may be proved, and his agreements in respect thereto will bind subsequent purchasers from him; but after an owner of land has parted with his title, his subsequent sayings and acts can not be proved to bind his prior grantee or one holding under him. [Cit.]
Ga. Marble Co. v. Voyles, 74 Ga.App. 312, 314(1), 39 S.E.2d 488 (1946). Thus, the trial court did not err in finding that because Whelchel no longer had title to the property in question, his purported statements could not contend a boundary line different from that in Rustin's deed.
3. The Appellants also contend that the trial court erred in disregarding testimony regarding the "railroad iron." At trial, there was testimony that Whelchel identified a railroad iron sticking out of the ground near Rustin's home as the property marker. Gibson testified that he used the railroad iron as the tie line for his survey. There was also testimony that Rustin told one of the property owners that the iron was a marker. Rustin testified that he put "a little piece of flat iron" in the ground because he "knocked up" a stake that Georgia Power put down when the company replaced a power pole, and that the iron pole had only been there for "seven or eight years." Rustin removed the iron pipe before the trial.
The question of the meaning of the iron pole was for the trier of fact. "Disputed lines between adverse claimants of land, and questions of where [certain monuments] stood in the past, and how long they stood in certain localities, are peculiarly questions of fact for the [factfinder]." Dye v. Dotson, 201 Ga. 1, 3(1), 39 S.E.2d 8 (1946).
4. The Appellants also contend that the trial court erred in finding that the property description in Rustin's deed was unambiguous. Here, the trial court found that the legal description in the deed was "unambiguous except for the plat which indicates the spring upon the Cains' land is not within the property conveyed by Whelchel to Rustin."
"The construction of a contract, if needed, being a question of law for the court, as well as a duty that rests upon the court, there can be no ambiguity ... unless and until an application of the pertinent rules of interpretation leaves it really uncertain *804 which of two or more possible meanings represents the true intention of the parties." Turk v. Jeffreys-McElrath Mfg. Co., 207 Ga. 73, 75(1), 60 S.E.2d 166 (1950). We have also deemed deeds to be "in law unambiguous," when the description in a deed is sufficient in conjunction with undisputed evidence to determine the conveyance. Rackley v. Miller, 200 Ga. 717, 38 S.E.2d 404 (1946), Walker v. Hill, 253 Ga. 126, 130(1), 317 S.E.2d 825 (1984). Moreover,
[w]hen a deed references a plat in describing the land conveyed, the plat will ordinarily be considered as incorporated in the deed itself. However, the plat is not given by way of more particular description, but as a pictorial representation of what has been described. It is not intended to conflict with the written description, and should not be so considered.
Dept. of Transp. v. Meadow Trace, Inc., 274 Ga.App. 267, 269(1), 617 S.E.2d 246 (2005). "`[T]he operative words are found in the deed itself.'" Shepherd v. Henderson, 169 Ga.App. 486, 486-487, 313 S.E.2d 503 (1984).
The deed in question, while having some inconsistencies with the plat, which were explained by a surveyor as transcription mistakes and related to the inaccuracy of the earlier surveying tools, clearly conveyed the lot described in the deed to Rustin. The conflict between the deed description and the plat does not reflect an intent to convey something other than what was specified in the deed.
Thus, the trial court did not err in finding that Rustin's deed was unambiguous.
5. The Appellants also contend the trial court erred in finding no evidence of an act of adverse possession of the disputed line by Whelchel or his successors. Again, we do not agree.
Reeves and Gibson both testified that they kept gardens on the disputed property at various times, and Gibson said that he dug a well near the line. Cain also testified at trial about a spring house he built on the property.
In the case of adjoining landowners, quite a different rule applies as to obtaining prescriptive title by adverse possession. In those cases,
possession and use of land along the boundary line of adjoining owners is construed to be permissive; so much so that this court has held that something must be done to indicate a right of possession on the part of one neighbor, adverse to the claim of his fellow.... [E]ven cultivation along the line, although beyond the boundary of the coterminous proprietor, has been held by this court not to evidence adverse possession.
Godley v. Hinely, 165 Ga. 717, 721, 142 S.E. 86 (1928).
In this case, we agree that the evidence as presented was insufficient, in these circumstances, to show adverse possession.
6. The Appellants also contend that the boundary line was not supported by the evidence. We do not agree.
Here, the southwest and northwest corners were not disputed. In fixing the boundary line, the trial court ran 1,270 feet from the northwest corner to set the northeast corner, and 1,248 feet from the southwest corner to set the southeast corner. Although the figures were disputed, there was some evidence presented at trial from which the trial court could have determined these measurements. Likewise, in connecting the northeastern and southeastern corners, the trial court utilized the calls along the original deed and excluded the spring that Rustin testified that he did not purchase.
Pursuant to OCGA § 44-4-5, with regard to determining disputed boundary lines,
the following rules shall apply: (1) Natural landmarks, being less liable to change and not capable of counterfeiting, shall be the most conclusive evidence; (2) Ancient or genuine landmarks such as corner stations or marked trees shall control the course and distances called for by the survey; (3) If the corners are established and the lines are not marked, a straight line as required by the plat shall be run but an established marked line, though crooked, shall not be overruled; and (4) Courses and distances shall be resorted to in the absence of higher evidence.
*805 Thus, although no natural landmarks established the boundary, it was undisputed that the spring was not on Rustin's property; thus, as there was some evidence from which the factfinder could establish the boundary lines, we affirm. See David v. Crane, 240 Ga. 671, 242 S.E.2d 131 (1978).
Judgment affirmed.
JOHNSON, P.J., and PHIPPS, J., concur.
NOTES
[1] The Cains and Garrett are not parties to this appeal.
[2] Rustin land was described as "[b]eginning to the Southwest corner of and Lot No. 163; thence North 10 deg. 58 min. E. 3270 feet; thence South 88 deg. 20 min. East 1270 feet; thence South 30 deg. 32 min. West 684 feet; thence South 13 deg. 23 min. West 972 feet; thence South 25 deg. 12 min. West 765 feet; thence South 13 deg. 23 min. West 972 feet; thence South 25 deg. 12 min. West 765 feet; thence South 12 deg. 38 min. West 525 feet; thence South 52 deg. 24 min. East 710 feet; thence North 88 deg. 38 min. West 1248 feet; to the original corner and point of beginning." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322482/ | 676 S.E.2d 750 (2009)
SMITH
v.
The STATE.
No. A08A2421.
Court of Appeals of Georgia.
March 16, 2009.
Reconsideration Denied April 3, 2009.
*751 Stephen N. Hollomon, Warner Robins, for appellant.
Denise D. Fachini, Dist. Atty., Cheri L. Nichols, Asst. Dist. Atty., for appellee.
MILLER, Chief Judge.
A Dooly County jury convicted Leonard Smith on three counts of false statements and writings (OCGA § 16-10-20). Smith appeals from the trial court's order denying his motion for a new trial, arguing that the trial court erred in (i) denying his plea in abatement and motion to dismiss indictment filed pursuant to OCGA §§ 17-7-52 and 45-11-4; (ii) admitting irrelevant, inflammatory evidence during cross-examination of a defense witness; and (iii) failing to charge the jury on the meaning of the term "knowingly." Finding that Smith did not receive notice of when the proposed indictment against him would be presented to the grand jury, as required by OCGA §§ 17-7-52 and 45-11-4, we vacate the judgment and remand the case to the trial court.
Viewed in the light most favorable to the verdict, the record shows that in September 2005, Smith was interim chief of police for the City of Unadilla, and in January or February 2006, he became the chief of police. When Smith began working for the Unadilla Police Department ("Unadilla Department") in 1999, he was also employed by the Fort Valley Police Department ("Fort Valley Department"). When he accepted employment with the Unadilla Department, Smith gave the Fort Valley Department written notice of his second job.
John Anderson became chief of police in Fort Valley in January 2006. At the time, Smith held a full-time position as sergeant in the Fort Valley Department. The Fort Valley Department had a policy allowing officers to take part-time jobs elsewhere if the part-time employment was approved in writing by the chief of police. When Anderson became chief, he "grandfathered" in the previously-granted part-time authorizations. When Anderson learned that Smith was serving as chief of police in Unadilla, however, Anderson asked Smith about his second job. Smith assured Anderson that he was serving as chief in an interim capacity and that his employment in Unadilla would not interfere with his job in Fort Valley.
Fort Valley police officers are responsible for filling out the time cards documenting when they work. Smith's pay was dependent on the hours he submitted, and it was unacceptable for Smith to be on the clock at the same time in Fort Valley and Unadilla. In April 2006, Anderson received a complaint about Smith's timekeeping. The complainant turned over photocopies of payroll records from Unadilla, and Anderson compared those *752 records with Fort Valley's records and prepared a spreadsheet to determine whether there were any time overlaps. Anderson discovered several possible irregularities. For example, on December 9, 2005, Smith had a four-hour time entry in Fort Valley that overlapped with a thirteen-hour time entry in Unadilla.[1] Anderson also discovered an overlap on January 20, 2006.[2]
After examining the time records, Anderson sat down with Smith, showed Smith his spreadsheet, and advised Smith that he had discovered some irregularities. Anderson told Smith that the Fort Valley Department was not prepared to take disciplinary action but that he wanted to see if Smith could explain any of the discrepancies. In response, Smith tendered his resignation on the spot.
Thereafter, Special Agent Michael McDaniel of the Georgia Bureau of Investigation ("GBI") began an investigation into the matter. Like Anderson, McDaniel discovered a number of discrepancies in Smith's time cards. McDaniel met with Smith on July 13, 2006 to discuss his findings. When McDaniel asked Smith about a discrepancy in Smith's time cards on October 3, 2005,[3] Smith advised him that the initials on the Unadilla time card were not his and that he had not signed the card. Smith stated that he had not signed or initialed a number of other time cards McDaniel showed him and claimed that they had been "doctored." In light of Smith's claims that he had not signed the time cards, McDaniel asked Smith if he would provide handwriting samples. Smith agreed, and McDaniel arranged to pick up the samples the following day. During their second meeting, Smith inquired about the status of McDaniel's investigation, and McDaniel told Smith that it was not looking good because "[y]ou can't be in two places at one time." Smith began crying and claimed that Unadilla owed him money and that it all "equals out." Smith, however, continued to deny signing a number of time cards. Arthur Anthony, a GBI handwriting expert, analyzed Smith's handwriting samples and the disputed time cards and determined that the signatures in question were Smith's.
On January 11, 2007, an investigator from the Dooly County Sheriff's Office served Smith with a copy of a proposed indictment charging him with seven counts of false statements and writings. The indictment indicated on its face that it was to be presented during the January term. A grand jury returned the indictment on January 29, 2007. On February 23, 2007, Smith filed a plea in abatement and motion to dismiss the indictment on the ground that he was not informed when the proposed indictment would be presented to the grand jury. During the hearing on the motion, Smith's attorney explained that the investigator who served the indictment on Smith told Smith that he should call the district attorney, but "that was the end of the contact as far as the provision of the indictment." Smith's counsel further represented that Smith "had no knowledge of when the grand jury was going to take up the indictment...." The trial court denied the plea in abatement and motion to dismiss indictment.
1. Smith contends that the trial court erred in denying his plea in abatement and motion to dismiss indictment filed pursuant to OCGA §§ 17-7-52 and 45-11-4. We agree.
OCGA § 17-7-52(a) states:
Before an indictment against a present or former peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is returned by a *753 grand jury, the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be afforded the rights provided in Code Section 45-11-4.
OCGA § 45-11-4(f), provides, among other things, that "[a] copy of the proposed bill of indictment shall be served on the accused public officer at least 15 days before it is presented to the grand jury." OCGA § 45-11-4(g) further states:
The accused shall have the right to appear before the grand jury to make such sworn statement as he or she shall desire at the conclusion of the presentation of the state's evidence. The accused shall not be subject to examination, either direct or cross, and shall not have the right individually or through his or her counsel to examine the state's witnesses. The accused and his or her counsel shall have the right to be present during the presentation of all evidence and alleged statements of the accused on the proposed indictment, presentment, or accusation, after which the accused and his or her counsel shall retire instanter from the grand jury room to permit the grand jury to deliberate upon the indictment.
It is undisputed that the State served Smith with a copy of the proposed indictment more than 15 days before it was presented to the grand jury, as required by OCGA § 45-11-4(f). The issue before us is whether Smith was entitled to notice of when the proposed indictment would be presented to the grand jury. We find that he was.
As an initial matter, we note that while our prior cases have not squarely addressed the issue of whether OCGA §§ 17-7-52 and 45-11-4 entitle a police officer to notice of when an indictment will be presented to a grand jury, we recently indicated in dicta that some notice of the grand jury proceedings is required. See Brandeburg v. State, 292 Ga. App. 191, 196(3), 663 S.E.2d 844 (2008) (rights under OCGA §§ 17-7-52 and 45-11-4 include: "notice of the grand jury proceedings, a copy of the indictment, the opportunity to be present during the presentation of evidence, and the right to make a statement to the grand jurors.") (emphasis supplied).[4] Further, several prior cases indicate that, as a practical matter, the State often notifies the defendant of when the indictment will be presented. McWilliams v. State, 177 Ga. App. 447, 451(5), 339 S.E.2d 721 (1985) (notice of indictment "informed [defendant] that the indictment would be presented to the grand jury at 11:00 a.m., February 3, 1984") (defendant not denied rights under OCGA § 45-11-4 despite fact that his counsel withdrew and he retained new counsel just one day before presentment).[5]
*754 We now hold that when an individual is entitled to the protections of OCGA §§ 17-7-52 and 45-11-4, the State must provide notice of when the proposed indictment will be presented to the grand jury. We begin our analysis with the propositions that this Court's "construction [of statutes] must square with common sense and sound reasoning," and we "may decline to give a legislative act such construction as will attribute to the General Assembly an intention to pass an act which is not reasonable, or as will defeat the purpose of the proposed legislation." (Citation and punctuation omitted.) Tuten v. Brunswick, 262 Ga. 399, 404(7)(a), 418 S.E.2d 367 (1992). The State contends that its sole obligation under OCGA § 45-11-4 was to serve Smith with a copy of the proposed indictment at least 15 days before the grand jury met and that it was then incumbent on Smith to appear with counsel, if he chose to do so. We find this position untenable. While OCGA § 45-11-4 does not expressly require the State to notify the accused of when an indictment will be presented to the grand jury, to hold that such a requirement does not exist would lead to unreasonable results and defeat legislative intent.
OCGA § 45-11-4 extends certain due process rights to covered public officials not provided to citizens in general. In re Floyd County Grand Jury eyc., 225 Ga.App. 705, 709-710(3), 484 S.E.2d 769 (1997); see also Thompson v. Macon-Bibb Hosp. Auth., 246 Ga. 777, 778, n. 1, 273 S.E.2d 19 (1980). Specifically, the statute confers on certain public officials,
a right ... of explaining their conduct [to the grand jury], so that if the case [is] one without foundation, they should not be annoyed by being required to defend, and (what is more important) should not be injured in the public estimation, or their public efficiency be impaired, while resting under a baseless charge.
Dyer v. State, 7 Ga.App. 58, 58-59, 65 S.E. 1089 (1909) (discussing predecessor statute); State v. Deason, 259 Ga. 183, 184, 378 S.E.2d 120 (1989) (rationale of OCGA § 45-11-4 is that government officials require protections of statute lest "their reputation and efficiency in office ... be impaired while defending baseless charges") (citations omitted). The intent of OCGA § 17-7-52 is "to afford to police officers the same procedural protection afforded to other public officials" under OCGA § 45-11-4. Mize v. State, 152 Ga. App. 190, 262 S.E.2d 492 (1979). The fundamental goal of OCGA §§ 17-7-52 and 45-11-4, affording police officers and public officials an opportunity to fend off potentially baseless charges prior to indictment, cannot be fulfilled if the accused does not know when the indictment will be presented. While OCGA § 45-11-4 is silent as to how the accused should obtain that information, we find that the burden of providing such notice implicitly and logically falls to the State.
The State does not dispute Smith's contention that the district attorney's office exercises control over its calendar of activities before the grand jury. Nor does the State credibly explain how Smith could have ascertained when the proposed indictment would be presented to the grand jury without obtaining that information from the State.[6] The State argues that pursuant to OCGA § 15-6-3(13)(C), Smith was on notice that the January term of the Dooly County Superior Court began on the fourth Monday of January. The January term, however, extended through April, and the State does not explain how Smith should have known which day he should appear in order to exercise his statutory rights. The State also asserts that Smith, as a police chief, "had access to the court system above and beyond that of an ordinary, uninformed citizen," but this generality does not establish that Smith could have learned the date and time when the proposed indictment would be presented.[7] Under such *755 circumstances, we cannot conclude that the General Assembly intended to absolve the State of any responsibility of informing a public official or police officer when an indictment would be presented. The protections of OCGA §§ 17-7-52 and 45-11-4 would be undermined if the State could simply furnish the accused with a proposed indictment and hope that he or she would not know or be able to discover when the indictment would be presented. Receiving the proposed indictment confers little benefit unless the accused, after reviewing it, has the opportunity to explain his or her position to the grand jury.
Our interpretation of OCGA §§ 17-7-52 and 45-11-4 is consistent with fundamental principles of due process. The "central meaning" of procedural due process is that "[p]arties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified." (Citations and punctuation omitted.) Fuentes v. Shevin, 407 U.S. 67, 80(IV), 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). We agree with Smith that an implied right to notice of when an indictment will be presented is necessary to effectuate a police officer's right to appear and be heard before a grand jury pursuant to OCGA §§ 17-7-52 and 45-11-4. See Cadle v. State, 101 Ga.App. 175, 181-184(2), 113 S.E.2d 180 (1960) (while predecessor to OCGA § 45-11-4 did not expressly provide that official had right to counsel before grand jury, right was implicit and consistent with certain guarantees under Georgia and federal constitutions); see also Robitzsch v. State of Ga., 189 Ga. 637, 7 S.E.2d 387 (1940) (statute provided for notice and hearing by necessary implication). Because the State failed to notify Smith when the proposed indictment would be presented, we conclude that Smith's convictions must be set aside. See Wiggins v. State, 280 Ga. 268, 272(2), 626 S.E.2d 118 (2006).
In view of the fact that Smith may be re-indicted for the offenses of which he was convicted (see OCGA § 17-7-53.1), we address Smith's remaining enumerations of error because they are likely to arise in the event the case proceeds again to trial.
2. Smith claims that the trial court erred in overruling his counsel's relevancy objection to the State's cross-examination of a defense witness, Unadilla City Council member Dexter Whittaker, about certain expenses he submitted to the city for reimbursement following a trip he and other city council members took to Washington D.C. We disagree.
OCGA § 24-9-64 provides that "[t]he right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him." See also Cosby v. State, 234 Ga.App. 723, 724(1), 507 S.E.2d 551 (1998).
The purpose of cross-examination is to provide a searching test of the intelligence, memory, accuracy, and veracity of the witnesses, and it is better for cross-examination to be too free than too much restricted. Wherever the purpose is to impeach or discredit the witness, great latitude should be allowed by the court in cross examinations.
(Citations and punctuation omitted.) Snelling v. State, 215 Ga.App. 263, 265(1)(a), 450 S.E.2d 299 (1994). "The right to a `thorough and sifting cross-examination' ... includes the right to impeach the witness by revealing possible biases or prejudices concerning issues in the case." (Footnotes omitted.) Baird v. State, 260 Ga.App. 661, 665(3), 580 S.E.2d 650 (2003).
Despite admitting that he was due reimbursement for items such as meals and transportation, Whittaker sought reimbursement for, among other things, shirts and a pair of "Hello Kitty" shoes he purchased at South DeKalb Mall and various souvenirs. The State's cross-examination was relevant to challenge the competency and credibility of Whittaker's testimony on direct examination that Smith's dual employment in Unadilla and Fort Valley was not problematic and Whittaker's assertions on cross-examination that he was a careful steward of city money and, further, that he did not believe Smith *756 did anything wrong. The trial court did not abuse its discretion in permitting such cross-examination. Baird, supra, 260 Ga.App. at 665(3), 580 S.E.2d 650
3. Finally, Smith argues that the trial court erred in failing to instruct the jury regarding the definition of the term "knowingly." We disagree.
"The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same." (Punctuation and footnote omitted.) O'Connor v. State, 255 Ga.App. 893, 896(2)(d), 567 S.E.2d 29 (2002). "[I]t is not error to refuse to give a requested charge when the same principles are fairly given to the jury in the general charge of the court." (Punctuation and footnote omitted.) Green v. State, 240 Ga.App. 774, 776-777(1), 525 S.E.2d 154 (1999).
Smith requested that the trial court instruct the jury that "the term `knowingly' as used in the indictment in this case includes knowledge of the falsity of the statement." While the trial court did not give this charge, it defined the offense of false statements and writings as follows:
A person who knowingly and wilfully falsifies, conceals, or covers up by any trick, scheme or device a material fact; makes a false, fictitious or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious or fraudulent statement or entry in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city or other political subdivision.
(Emphasis supplied.) This charge adequately instructed the jury that knowledge of a statement's falsity was an element of the offense the State must prove. Helton v. State, 284 Ga.App. 777, 780(2)(b), 644 S.E.2d 896 (2007).
Further, the trial court instructed the jury on the State's burden of proving that Smith acted with criminal intent. The trial court's charge on criminal intent "was sufficient to inform the jury that in order to convict, it had to find that [Smith] intended to make the false statements," and "[i]mplicit in such intent is knowledge of the falsity." Tidwell v. State, 216 Ga.App. 8, 12(4), 453 S.E.2d 64 (1994); Mitchell v. State, 233 Ga.App. 92, 95(5), 503 S.E.2d 293 (1998).
For the reasons set forth above in Division 1, the trial court's judgment is vacated, and the case is remanded to the trial court for proceedings consistent with this opinion.
Judgment vacated and case remanded with direction.
BLACKBURN, P.J., and ELLINGTON, J., concur.
NOTES
[1] Anderson determined that Smith had been in training that day. The Fort Valley Department pays its officers to go to training, but they are not allowed to be paid by another police department at the same time.
[2] Smith's time cards showed that he was on the clock in Fort Valley from January 19 at 6:00 p.m. until January 20 at 8:00 a.m. The Unadilla time cards, however, showed that Smith clocked in at 5:42 a.m. on January 20 and worked until 5:57 p.m.
[3] The time cards showed that on October 3, 2005, Smith clocked in at the Unadilla Department at 8:00 a.m. and worked until 8:00 p.m. On the same day, Smith clocked in at Fort Valley at 5:45 p.m. and worked until October 4 at 6:00 a.m.
[4] See also State v. Young, 260 Ga.App. 44, 46(1), n. 1, 579 S.E.2d 16 (2003) ("Only peace officers and public officials are entitled to notice and the opportunity to appear before the grand jury. OCGA §§ 17-7-52; 45-11-4(f), (g).") (emphasis supplied); Creamer v. State, 150 Ga.App. 458, 258 S.E.2d 212 (1979) (noting that trial court granted defendant's motion to quash first indictment "because [defendant] was an on-duty police officer at the time of the alleged offense and was not served with a copy of the proposed indictment, given notice of the contemplated action by the district attorney, or given notice and opportunity to appear") (emphasis supplied) (rejecting defendant's argument that he did not receive adequate notice of indictment where indictment was served just two days prior to presentment); but see Popham v. State, 138 Ga.App. 876, 880-881(5), 227 S.E.2d 825 (1976) (stating, "the defendant's motion affirmatively shows that the defendant was served with a copy of the proposed indictment prior to its being laid before the grand jury. This satisfies the notice requirements of the statute," but also noting, "[i]n addition, the defendant was given notice of the time and place of convening the grand jury") (defendant not denied rights under predecessor to OCGA § 45-11-4 by virtue of fact that State failed to advise him whether he would be permitted to appear before the grand jury and when the State's presentation of evidence would conclude).
[5] See also Creamer, supra, 150 Ga.App. at 459, 258 S.E.2d 212 (when proposed second indictment was served on defendant's counsel, counsel agreed that defendant would appear before grand jury two days later); Moore v. State, 64 Ga.App. 171, 171-172, 12 S.E.2d 410 (1940) (notice of proposed indictment stated: "The within and foregoing indictment is to be laid before the grand jury of Clayton County at the November term, 1939, on Tuesday November 28, 1939 at nine o'clock a.m....") (trial court erred in dismissing plea in abatement under predecessor to OCGA § 45-11-4 when State served indictment one day prior to presentment and defendant was physically unable to attend court on date of presentment).
[6] At the hearing on the plea in abatement and motion to dismiss indictment, the prosecutor stated that the assistant chief of the Unadilla Department was subpoenaed to the grand jury but did not assert that Smith had notice of that subpoena.
[7] The prosecutor also represented that the district attorney's office "sends a copy of the Court's calendar to every law enforcement agency within our circuit when it's published, so that the departments have notice as to when all the grand juries and arraignments and court terms are for their scheduling purposes...." This calendar is not in the record, however, and the prosecutor did not state that the calendar indicated when the indictment against Smith would be presented. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322483/ | 382 S.C. 525 (2009)
676 S.E.2d 722
Chad Wyman MEAD, Claimant,
v.
JESSEX, INC., d/b/a Midlands Glass; Uninsured Employers' Fund, Employers, Defendants, of whom the Uninsured Employers' Fund is the Appellant,
and
Chad Wyman Mead is the Respondent.
No. 4525.
Court of Appeals of South Carolina.
Heard February 4, 2009.
Decided April 2, 2009.
Rehearing Denied June 1, 2009.
*526 Robert M. Cook, II, of Batesburg-Leesville, for Appellant.
Ann Mickle, of Rock Hill, and Tom Young, Jr., of Aiken, for Respondent.
*527 GEATHERS, J.:
In this workers' compensation case, the Uninsured Employers' Fund (the Fund) appeals the circuit court's order reversing the Appellate Panel's denial of Chad W. Mead's (Mead) application for a change of condition for the worse to his left hip and leg allegedly caused by his original compensable injury. The Fund asserts the circuit court erred in failing to affirm the Appellate Panel's finding that the claim for a change of condition was barred by res judicata. We agree.
FACTUAL AND PROCEDURAL BACKGROUND
In late January or early February 2000, Mead sustained an on-the-job injury. Mead alleged injuries to his right leg, right hip, and back arising out of and in the course of his employment with Jessex Inc., d/b/a Midlands Glass (Jessex). Initially, Jessex and the Fund denied Mead's claim, contending the injury was not sustained on the job.
The first hearing regarding Mead's compensation occurred on November 7, 2001, before Commissioner Holly Saleeby Atkins. On April 1, 2002, Commissioner Atkins issued her order finding that Mead "sustained an injury by accident to his right hip and right leg arising out of and in the course and scope of his employment," and that the injury was compensable under the South Carolina Workers' Compensation Act. Commissioner Atkins further found that Mead had a preexisting condition of avascular necrosis in his right leg and hip which was aggravated by his compensable injury. However, Commissioner Atkins specifically found Mead did not sustain a compensable back injury.
On March 21, 2003, Commissioner, J. Alan Bass, presided over a second hearing regarding Mead's injuries. Mead sought a final determination of the extent of disability he sustained to his right lower extremity and a determination of disability to his back as a result of the original compensable injury. Mead reached maximum medical improvement after the first hearing and the commissioner determined that he had a sixty percent loss of use of his right lower extremity.
At the March 2003 hearing, Mead testified that he began experiencing pain in his left hip and left leg in December 2002 or January 2003 as a result of having to shift his weight from *528 his right leg to his left leg when standing. Mead contended that he bore "pretty much all" of his weight on his left leg. When Commissioner Bass specifically asked Mead if he believed his left hip and left leg problems arose from shifting his weight from his right to left leg, Mead responded, "I personally do."
Commissioner Bass found that the total right hip replacement Mead underwent following the first hearing caused Mead to have an altered gait. Furthermore, the "altered gait caused [Mead] to develop lower back pain." Commissioner Bass determined the back pain Mead complained of was directly related to his original compensable injury. Thus, the back pain was also a compensable injury.
Further, Commissioner Bass rejected Jessex's and the Fund's contention that Mead's back claim was barred by res judicata; rather, he found that Mead's "back claim is based on an altered gait which was not before the Commissioner at the November 7, 2001 hearing and did not manifest itself until after the November 7, 2001 hearing." However, Commissioner Bass specifically stated in his factual findings and conclusions of law that Mead failed to prove that his left hip symptoms were related to the original compensable right hip and right leg injury that occurred in 2000. Neither party appealed Commissioner Bass' order.
Subsequently, on June 2, 2006, there was a third hearing before Commissioner J. Michelle Childs. At this hearing, Mead alleged a change of condition for the worse, seeking "a finding that his left hip problems are causally related to his original injury such that the left hip problems and the treatment needed for the left hip will be compensable."[1] Mead presented the opinion of Dr. Holford, the authorized treating *529 physician, who based his opinion on a review of the March 21, 2003 hearing transcript, Mead's past medical records, and a physical examination. Commissioner Childs relied on Dr. Holford's opinion during the hearing.
In Dr. Holford's questionnaire responses, dated October 29, 2004, he stated that the pain Mead complained of during the hearing before Commissioner Bass was due to the natural progression of his avascular necrosis. Later in the same report, Dr. Holford opined that, based on his treatment and examination of Mead, Mead's complaints at the time of the 2004 report were "related to an aggravation of his pre-existing avascular necrosis of the left hip caused by his altered gait."
Commissioner Childs stated in her factual determinations that Mead's change of condition claim for his left hip and leg was an entirely new problem that manifested itself after the March 21, 2003 hearing. Additionally, Commissioner Childs found: "The authorized treating physician Dr. Douglas Holford has verified that he read the hearing transcript of March 21, 2003[,] and his opinion to a reasonable degree of medical certainty is that the current left hip complaints are new and different from the left hip symptoms prior to March 21, 2003." (emphasis in original). Commissioner Childs found that Mead's claim was compensable and the Fund's res judicata argument failed.
The Fund appealed Commissioner Childs' findings to the Appellate Panel. The Appellate Panel determined the "order of Commissioner Childs [ ] must be reversed because it [was] based upon legal error in finding that [Mead's] injury to his left hip and left leg were compensable." Further, the Appellate Panel determined that Mead's left hip injury claim was barred by res judicata because the claim was previously ruled on by Commissioner Bass, and because the court in Owenby v. Owens Corning Fiberglas, 313 S.C. 181, 437 S.E.2d 130 (Ct. App.1993) held that a change of condition claim based on an alleged worsening of condition, that was previously ruled on, was barred by res judicata. The Appellate Panel made the following findings:
1. That the claimant raised the issue of the compensability of the alleged injury to his left hip at the hearing on March 21, 2003. This finding of fact is supported by the *530 transcript of that hearing, as well as the claimant's Form 50 and prehearing brief.
2. That the June 3, 2003, order finds, concludes and orders that the alleged injury to the claimant's left leg and left hip were not compensable. This finding of fact is supported by the order in question, including finding of fact number 6 and conclusion of law number 7.
3. That the claimant did not appeal the order of June 3, 2003, at all and specifically not with regard to that part of the order ruling that the alleged injury to the left leg and left hip were not compensable. This finding of fact is not disputed and, in any event, is clearly shown by the absence in the file of the Commission of any Form 30 appealing that order.
4. That the unappealed order of June 3, 2003, bars the claimant's current claim for the compensability of the left hip and left leg under the doctrine of res judicata.
Mead appealed the Appellate Panel's decision to the circuit court. The circuit court reversed the Appellate Panel, finding the Appellate Panel erred as a matter of law when it ruled Mead's application for compensation for his left leg and left hip condition was precluded by res judicata. The circuit court found that the instant case was controlled by Estridge v. Joslyn Clark Controls, Inc., 325 S.C. 532, 482 S.E.2d 577 (Ct.App.1997).[2] In addition, the circuit court stated that the Fund and the Appellate Panel "erroneously assume that [Mead's] left leg and hip symptoms are the same as those existing prior to and following the March 21, 2003 hearing." The court found Mead's post-March 21, 2003 symptoms were compensable because they fell within the definition of a change of condition, as defined by Estridge and recognized in Owenby. In reaching its conclusion, the circuit court relied on Dr. Holford's opinion during the hearing before Commissioner Childs: "The left leg and hip injuries at issue here have not been litigated previously, nor were they introduced in the underlying action, because the change of condition did not yet *531 exist. Dr. Holford has confirmed this with his medical opinionthe only evidence in this record."
Furthermore, the circuit court stated that the Appellate Panel erred by focusing its reasoning on Commissioner Bass' unappealed order. The circuit court ruled that Mead's claim was for a change of conditionnew symptoms manifesting in the same body partand therefore, the claim was not barred by res judicata pursuant to Owenby and Estridge. This appeal followed.
STANDARD OF REVIEW
The South Carolina Administrative Procedures Act establishes the standard of review for decisions by the Appellate Panel of the Workers' Compensation Commission. Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981); Thompson v. S.C. Steel Erectors, 369 S.C. 606, 611, 632 S.E.2d 874, 877 (Ct.App.2006).
S.C.Code Ann. § 1-23-380 (Supp.2008) provides that in judicial review of a decision of an administrative agency,
The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: [ ](d) affected by other error of law; (e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.
In reviewing workers' compensation decisions, the appellate court ascertains "whether the circuit court properly determined whether the [A]ppellate [P]anel's findings of fact are supported by substantial evidence in the record and whether the [P]anel's decision is affected by an error of law." Baxter v. Martin Bros., Inc., 368 S.C. 510, 513, 630 S.E.2d 42, 43 (2006) (citations omitted). "`Substantial evidence' is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached to justify its action." Clark v. Aiken Cty. Gov't, 366 S.C. 102, 107, 620 S.E.2d 99, 101 (Ct.App.2005).
*532 "Under our scope of review, the findings of the commission will not be set aside if they are supported by substantial evidence and not controlled by error of law." Estridge, 325 S.C. at 536, 482 S.E.2d at 579. The circuit court may reverse or modify the decision of the Appellate Panel if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are affected by error of law or are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. Thompson, 369 S.C. at 612, 632 S.E.2d at 878. Accordingly, an appellate court may not "substitute its judgment for that of the [Appellate Panel] as to the weight of the evidence on questions of fact." West v. Alliance Capital, 368 S.C. 246, 251, 628 S.E.2d 279, 282 (Ct.App.2006).
LAW/ANALYSIS
The Fund asserts the circuit court erred in failing to affirm the Appellate Panel's determination that the claim for a change of condition was barred by res judicata. We agree.
The doctrine of res judicata prevents the relitigation of issues previously decided between the same parties, and it is shown if (1) the identities of the parties are the same as in the prior litigation; (2) the subject matter is the same as in the prior litigation; and (3) there was a prior adjudication of the issue by a court of competent jurisdiction. Johnson v. Greenwood Mills, Inc., 317 S.C. 248, 250-51, 452 S.E.2d 832, 833 (1994). All three elements are present in the case at hand.
The Appellate Panel correctly determined that Mead's claim for a change of condition was barred by res judicata because the left hip and leg symptoms alleged to Commissioner Bass and found not compensable, were the same symptoms subsequently brought before Commissioner Childs in the change of condition proceeding. As such, res judicata barred relitigation of the issue of compensability for Mead's left hip and leg symptoms. Mead's initial Form 50, dated August 8, 2002, and amended prior to the hearing before Commissioner Bass, stated that Mead sustained an accidental injury to his back and both legs. At the hearing before Commissioner Bass, Mead complained of left hip and leg pain that resulted from having to shift his weight from his right leg to his left leg. In *533 the order dated June 3, 2003, Commissioner Bass specifically found that "Claimant failed to prove his left leg symptoms, which appeared three years after the original injury, were related to the original injury." He also concluded as a matter of law that "Claimant fails to prove that the left hip symptoms which appeared three years after the original injury are related to the original injury." It is undisputed that Mead did not appeal the order of Commissioner Bass. Therefore, it is the law of the case that Mead's left hip and left leg claim was not compensable. Brunson v. American Koyo Bearings, 367 S.C. 161, 165-66, 623 S.E.2d 870, 872 (Ct.App.2005) (factual findings and conclusions of law of the single commissioner become the law of the case when not challenged on appeal).
After the hearing before Commissioner Bass, Mead filed a second Form 50, dated January 13, 2004, claiming that he sustained a change of condition to his left hip, left leg, and back. The doctrine of res judicata barred this second attempt at a claim for the left hip and left leg symptoms which were initially found not to be compensable.
Moreover, Mead's claim for compensability of his left hip and left leg condition on the basis of a change of condition is controlled by this Court's decision in Owenby v. Owens Corning Fiberglas, 313 S.C. 181, 437 S.E.2d 130 (Ct.App.1993). In that case, this Court held that the doctrine of res judicata barred the award of workers' compensation benefits for Owenby's psychological problems, despite her claim of a change of condition. 313 S.C. at 183, 437 S.E.2d at 131-32. In Owenby, the commissioner awarded compensation for Owenby's injury to her finger but, because he found her evidence not credible, denied compensation for her alleged psychological problems as he found any psychological problems suffered by Owenby were not proximately caused by the injury to her finger. Id. When Owenby later sought an increase in benefits due to the amputation of an additional portion of her finger, she also alleged that her psychological condition had worsened. Id. This Court held that her attempt to obtain compensation for her psychological condition was barred by res judicata. Id. As the commissioner had previously determined that any psychological problems Owenby may have had were not related to the injury to her finger, she could not relitigate the same issue based on a change of condition. Id. This Court also *534 noted that the statute allowing review based on a change of condition applies only to claims that have been previously found compensable. Id.[3]
Likewise, in the instant case, Mead is barred from relitigating the same issue regarding his left hip and left leg. There was a prior finding of non-compensability regarding Mead's left hip and left leg symptoms by Commissioner Bass, which was not appealed, and therefore, under the Owenby standard, the change of condition statute does not apply to his claim.
Thus, we find that the circuit court erred in reversing the Appellate Panel's decision that Mead's claim for a change of condition was barred by res judicata.
CONCLUSION
Accordingly, the circuit court's order is
REVERSED.
SHORT and THOMAS, JJ., concur.
NOTES
[1] S.C.Code Ann. section 42-17-90 (Supp.2008) in the South Carolina Workers' Compensation Act provides a mechanism for reopening an award if there has been a change in condition. That section provides in relevant part:
(A) On its own motion or on the application of a party in interest on the ground of a change in condition, the commission may review an award and on that review may make an award ending, diminishing, or increasing the compensation previously awarded, on proof by a preponderance of the evidence that there has been a change of condition caused by the original injury, after the last payment of compensation.
[2] In Estridge, this Court held that a mental condition that is induced by a compensable physical injury is causally related to that physical injury, and thus may be compensated in a change of condition workers' compensation proceeding as part of the original injury. Id.
[3] See Travelers Ins. Co. v. Edge, 114 Ga.App. 301, 151 S.E.2d 170 (1966) (res judicata barred a subsequent claim for a change of condition involving an injury that was previously found not to be compensable). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322484/ | 676 S.E.2d 173 (2009)
MILLER
v.
The STATE.
No. S08G1952.
Supreme Court of Georgia.
April 28, 2009.
Gerard Bradley Kleinrock, Decatur, for Appellant.
Gwendolyn Keyes Fleming, Dist. Atty., Barbara B. Conroy, Asst. Dist. Atty., for Appellee.
*174 THOMPSON, Justice.
Following his conviction for simple battery, Greg Miller appealed to the Court of Appeals asserting, inter alia, that trial counsel rendered ineffective assistance because he failed to object to hearsay evidence that Miller was inebriated when he committed the crime. The Court of Appeals affirmed. Miller v. State, 292 Ga.App. 636, 665 S.E.2d 692 (2008). In analyzing the ineffective assistance of counsel claim, the court held that even if trial counsel's failure to object to the evidence constituted deficient performance, it was not prejudicial because Miller did not show "how the omission of a passing reference that he was drunk would have somehow resulted in the jury's believing that he was innocent." Id. at 640(2), 665 S.E.2d 692. The court continued, "[c]onsequently, Miller cannot show that but for counsel's error, the outcome of the case would have been different." Id. We granted certiorari to the Court of Appeals and posed this question:
Whether the Court of Appeals erred by applying an incorrect legal standard to determine prejudice under the second prong of the test for constitutionally ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
In Strickland, the Court established a standard by which to measure a claim of ineffective assistance of counsel under the Sixth Amendment. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, supra 466 U.S. at 686, 104 S.Ct. 2052. There are two components to the inquiry:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction. . . resulted from a breakdown in the adversary process that renders the result unreliable.
Id. 466 U.S. at 687, 104 S.Ct. 2052. The Strickland Court set forth the appropriate test for determining prejudice: "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. 466 U.S. at 694, 104 S.Ct. 2052.
This Court first applied the Strickland standards in Smith v. Francis, 253 Ga. 782(1), 325 S.E.2d 362 (1985). To establish the prejudice prong of Strickland, Smith requires a defendant to show "a reasonable probability sufficient to undermine confidence in the outcome that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different." Id. at 784, 325 S.E.2d 362. See also Brogdon v. State, 255 Ga. 64, 68(3), 335 S.E.2d 383 (1985) (a defendant "must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's unprofessional errors").
Over the years, our appellate courts have on occasion deviated from this standard by eliminating the "reasonable probability" language and requiring a defendant to show that but for counsel's error, the outcome of the case would have been different. The Strickland Court specifically noted that "a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Strickland, supra 466 U.S. at 693, 104 S.Ct. 2052. "[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. 466 U.S. at 695, 104 S.Ct. 2052. Cases which have ignored the reasonable probability requirement of Strickland have placed a more stringent burden on the defendant an unconditional showing that the defendant would have been acquitted had counsel not performed deficiently.
The error in Miller is traced back to Turner v. State, 245 Ga.App. 294, 295(4), 536 S.E.2d 814 (2000), in which the Court of *175 Appeals misstated the Strickland standard by omitting the "reasonable probability" language. Compounding the error, the Turner court determined that even if Turner's counsel rendered ineffective assistance, he failed to show that it "prejudiced his cause or resulted in a different outcome at trial." Id. at 298, 536 S.E.2d 814. Our research shows that the incorrect statement of the prejudice prong of Strickland as set forth in Turner and reiterated in Miller has been perpetuated by the Court of Appeals in numerous cases.[1] Our Court as well has been guilty of the omission. See Fargason v. State, 266 Ga. 463(4), 467 S.E.2d 551 (1996) ("To prove an ineffective assistance of counsel claim, the defendant must show that trial counsel performed deficiently and that the result of the trial would have been different but for the deficiency."). And the incomplete statement of law in Fargason has been followed by our Court of Appeals.[2] To the extent that these and any other cases eliminate or dilute the "reasonable probability" standard set forth in Strickland, they are disapproved and will not be followed.[3]
Accordingly, we hereby vacate the opinion of the Court of Appeals and remand the case for consideration of whether Miller was prejudiced by counsel's deficient performance applying the correct Strickland standard.
Judgment vacated and case remanded.
All the Justices concur.
NOTES
[1] See e.g., Jowers v. State, 272 Ga.App. 614(3), 613 S.E.2d 14 (2005); Lemming v. State, 272 Ga.App. 122(2), 612 S.E.2d 495 (2005); Wright v. State, 265 Ga.App. 855(1), 595 S.E.2d 664 (2004); Wiltshire v. State, 191 Ga.App. 426(1), 382 S.E.2d 166 (1989); McAlister v. State, 204 Ga.App. 259(2), 419 S.E.2d 64 (1992); Champion v. State, 238 Ga.App. 48(1), 517 S.E.2d 595 (1999); Glore v. State, 241 Ga.App. 646(3), 526 S.E.2d 630 (1999); Minter v. State, 245 Ga.App. 327(6), 537 S.E.2d 769 (2000); Lewis v. State, 249 Ga.App. 812(5)(b), 549 S.E.2d 732 (2001); Prins v. State, 246 Ga.App. 585(5), 539 S.E.2d 236 (2000); Johnson v. State, 274 Ga.App. 69(2), 616 S.E.2d 848 (2005); In the Interest of F.C., 248 Ga.App. 675(3), 549 S.E.2d 125 (2001); Mahone v. State, 247 Ga.App. 596(2), 544 S.E.2d 514 (2001); Peterson v. State, 253 Ga.App. 390(5), 559 S.E.2d 126 (2002); Cortez v. State, 253 Ga.App. 699(6), 561 S.E.2d 142 (2002).
[2] See Trimble v. State, 274 Ga.App. 536(2)(b), 618 S.E.2d 163 (2005); Taylor v. State, 270 Ga. App. 637(1), 607 S.E.2d 163 (2004); Shelley v. State, 239 Ga.App. 841(4), 521 S.E.2d 855 (1999); Roberts v. State, 229 Ga.App. 783, 494 S.E.2d 689 (1997).
[3] We further note that numerous other Court of Appeals cases have misstated the prejudice prong of Strickland, but have analyzed the issue by determining that counsel was not deficient under the first prong, or have gone on to analyze the prejudice issue correctly. These cases have not been included in our compendium. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322488/ | 676 S.E.2d 791 (2009)
EPPS
v.
The STATE.
No. A08A2264.
Court of Appeals of Georgia.
March 26, 2009.
*792 Virginia W. Tinkler, Decatur, for appellant.
David McDade, Dist. Atty., James A. Dooley, Asst. Dist. Atty., for appellee.
ADAMS, Judge.
Michael Perry Epps was convicted by a jury on one count of kidnapping with bodily injury, one count of robbery, and one count of aggravated assault. He appeals following the denial of his motion for new trial.
Viewed in the light most favorable to the verdict, the evidence showed that on March 15, 2002, Rick Morrow went to a bar in Douglas County to have drinks with a friend. Over the next few hours, Morrow continued drinking and became, in his own words, "very drunk." At around 12:15 a.m., he began to feel sick, so he left the bar and went outside where he sat on a curb to compose himself. Almost immediately, he was approached by a man who identified himself as a policeman, grabbed Morrow's arm and told him he was under arrest. When Morrow noticed the man was not dressed like a police officer, he *793 pulled his arm away. The man then admitted that he was not a policeman and said he was just someone who wanted to help Morrow get home.
The man ushered Morrow off the curb and directed him to a waiting car. Morrow said that he did not get into the car voluntarily, but the man pushed him inside onto the back seat and then got in beside him. Two women were in the front seat. Morrow heard the door slam, and the car began pulling out of the parking lot. Almost immediately, Morrow felt a hand go into his pocket, and he reflexively grabbed at his pants. The man then began hitting him repeatedly, but Morrow said he was not able to put up any resistance. Morrow said this beating, which he described as brutal, continued for about five minutes. The man then put Morrow in a headlock and took his wallet, watch, car keys and cash from his pocket. Morrow subsequently identified Epps from a photographic lineup as the man who shoved him in the car, beat him and took the items from his pocket. The charges of robbery and assault against Epps arise from these incidents.
Morrow was later driven to a bank in Cobb County, where Epps took him to an automated teller machine (ATM) and directed him to withdraw money. He said he felt compelled to comply. They returned to the car and rode around for a time, but Morrow was again taken to the ATM where he withdrew additional funds. By this time, however, Morrow had composed himself sufficiently to run away when the man turned his back. He hid in some bushes for a while before calling police. The evidence showed that the first of these ATM withdrawals occurred at approximately 2:50 a.m. and the last successful transaction was completed shortly after 3:00 a.m. Because the robberies at the ATM occurred in a different county, they were not at issue at trial and are not a part of this appeal.
Epps was indicted in connection with this incident, along with Lisa Ellen Roddy and Mary Elizabeth Austin. Roddy and Austin both pled guilty and testified for the State at Epps' trial. Austin stated that she was at the bar that night with Epps and Roddy. When they left the building, Roddy and Austin got into Roddy's car, and Epps came to the car with Morrow. Austin understood that they were going to give Morrow a ride home. As they drove away, however, Austin began to hear the sounds of Epps hitting Morrow coming from the back seat. She turned around and screamed at him to stop.
Roddy testified that at the time of these incidents, she was Epps' girlfriend. She went with Epps and Austin to the bar that night. When they came outside, she got in her car and started the engine. Epps, Austin and Morrow then got in the car, although she did not know who Morrow was at the time. As she drove away, Austin told her that Epps was hitting Morrow, and they both began yelling at him to stop. Someone from the back seat told her to drive to an ATM, so she did. She then nodded off and did not wake up until she heard Austin screaming at Morrow to run. She also testified that Epps later gave her a letter exonerating her from any illegal activity, and stating that he did everything on his own without her knowledge.
Sergeant Jamie Harrell of the Douglas County Sheriff's Office testified that after Epps was arrested, he admitted that he was at the bar that night with Roddy and Austin. Harrell said that the bar and all its surrounding buildings are in Douglas County.
1. Epps first asserts that the evidence was insufficient to support his conviction for kidnapping as that offense was re-formulated by the Supreme Court of Georgia in Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008). In addition, Epps asserts that the State failed to prove that Douglas County was the proper venue in which to try him for that offense, arguing instead that any kidnapping would have been consummated in Cobb County.
"A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will." OCGA § 16-5-40(a). To prove abduction, the State must prove the element of asportation, but our Supreme Court recently redefined that element in Garza. Under the new definition, a finding of asportation requires *794 an assessment of the following four factors:
(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.
Garza v. State, 284 Ga. at 702(1), 670 S.E.2d 73. Slight movement no longer suffices. Id.
Epps argues that the evidence does not support his conviction for kidnapping when these factors are applied. He asserts that there was some evidence that Morrow got into the car voluntarily; that the evidence did not show how long he was in the vehicle; that the kidnapping occurred during and was an inherent part of the robbery and assault; and that there was no evidence that he was in any danger apart from those offenses.
We disagree. The evidence supported a finding that Morrow left the bar at 12:15 a.m. Almost immediately, he was forced or, at the very least, tricked into Roddy's car by Epps. Once in the car, Morrow stated that he felt a hand in his pocket as the car began to move. When he resisted, Epps beat him for around five minutes, then put him in a headlock and stole his wallet and cash. Although these incidents occurred shortly after Morrow was placed in the car, the first of the ATM withdrawals was not until 2:50 a.m., more than two and one-half hours after Epps first approached Morrow. Even if Epps initially abducted Morrow in order to facilitate robbing him, the evidence would support a finding that Epps held Morrow for a significant period after the initial assault and robbery were completed. Although Morrow was again robbed and beaten at the ATM, those crimes occurred after he had been detained for a period of time.
Moreover, this detention subjected Morrow to a danger separate and apart from the dangers inherent in the robbery and assault. Roddy testified that before she got to the bar that night she had ingested a quantity of Xanax. When they got to the bar, she continued to take Xanax and to consume alcohol to the point that she was "stoned." Despite this, she drove the car that night. When they got to the bank, Roddy nodded off and did not wake up until she heard Austin screaming. And at some point during the night, Roddy wrecked the car. She explained, "I don't know when I wrecked it. I don't even remember hitting the wall. I guess I hit a wall because that's what they told me, that I hit a wall." Not only did Morrow's detention in the car make it easier for Epps to commit the assault and robbery, it also placed him at risk of physical harm from the driver's intoxicated state. This danger was independent of any assault or robbery. Applying the Garza test, we find the evidence sufficient to establish the offense of kidnapping as a separate and independent crime. See generally People v. Lurks, 241 Ill.App.3d 819, 826, 182 Ill.Dec. 360, 609 N.E.2d 894 (1993) (applying same factors adopted in Garza).
Epps also asserts, however, that the State failed to establish that Douglas County was the proper venue for the prosecution of that crime. Sergeant Harrell testified that the bar and all the buildings surrounding it were in Douglas County, although the bar was situated near the county line with Cobb County. While Roddy eventually drove the car to an ATM in Cobb County, there was no evidence of the route taken between the bar and that ATM.
But under OCGA § 17-2-2(e) where, as here, a crime is committed in a moving vehicle, "and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the . . . vehicle . . . has traveled." That statute also provides that "[i]f in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed." OCGA § 17-2-2(h).
Accordingly, although the precise moment when Morrow's abduction became kidnapping under the Garza analysis cannot be *795 determined with certainty, "venue may be proved by circumstantial evidence and it was a question for the jury." Pruitt v. State, 279 Ga. 140, 143(4), 611 S.E.2d 47 (2005). The trial court here instructed the jury as to venue and specifically charged them as to provisions of OCGA § 17-2-2(e) and (h). Accordingly, because the evidence was sufficient to support a finding that the kidnapping might have been committed in Douglas County, we find no ground for reversal. Id.
2. Epps next asserts that the trial court erred in charging the jury on venue using the "shall be considered" language from OCGA § 17-2-2(e) and (h) quoted in Division 1 above. Epps asserts that this created a mandatory presumption impermissibly shifting the burden of persuasion on venue to him. He notes that the Supreme Court of Georgia has held that the better practice is to charge the jury on this point using the language "may consider" rather than "shall consider." Napier v. State, 276 Ga. 769, 772-773(2), 583 S.E.2d 825 (2003). But the Supreme Court addressed this same argument in a subsequent case, and it found that no improper burden shifting occurred where the trial court also charged the jury "that each element of a crime must be proved beyond a reasonable doubt; that venue is an element of any crime; that the State has the burden of proof on each element; and that such burden never shifts to the defendant." Edmond v. State, 283 Ga. 507, 509(4), 661 S.E.2d 520 (2008). The trial court in this case also charged on these factors. We find, therefore, that the charge in this case, when considered as a whole, was not misleading or confusing, nor did it impermissibly shift the burden to Epps on the element of venue. Id.
3. Epps also contends that his conviction for aggravated assault merged as a matter of fact into his conviction for robbery and/or into his conviction for kidnapping with bodily injury based upon the indictment and evidence at trial. He argues that the same facts were required to prove each crime. Epps also asserts that his conviction for robbery merged into his conviction for kidnapping for the same reason. "Under OCGA § 16-1-6(1), two offenses will merge as a matter of fact if one of them is established by proof of the same or less than all the facts required to prove the other." (Citation omitted.) Keown v. State, 275 Ga.App. 166, 169(2), 620 S.E.2d 428 (2005). Here, the State concedes that the assault and robbery charges merge as a matter of fact, and that each merged into the conviction for kidnapping. Accordingly, the aggravated assault and the robbery convictions are hereby vacated.
Judgment affirmed in part and vacated in part.
SMITH, P.J., and MIKELL, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322490/ | 676 S.E.2d 262 (2009)
UNDERWOOD et al.
v.
SELECT TIRE, INC. et al.
Byers Well Drilling
v.
Select Tire, Inc. et al.
Bridgestone Firestone North American Tire, LLC
v.
Select Tire, Inc. et al.
Nos. A08A2163, A08A2164, A08A2165.
Court of Appeals of Georgia.
March 20, 2009.
Certiorari Denied May 18, 2009.
*264 Steven L. Beard, Marietta, Charles M. Cork III, Macon, for appellant (case no. A08A2163).
Hawkins & Parnell, Warner S. Fox, Christopher S. Keith, Atlanta, for appellant (case no. A08A2164).
Holland & Knight, Alfred B. Adams III, Caroline J. Tanner, Atlanta, for appellant (case no. A08A2165).
Temple, Strickland, Dinges & Schwartz, William D. Strickland, Doraville, Cruser & Mitchell, William T. Mitchell, Norcross, Jennifer G. Cowart, for appellees.
BARNES, Judge.
Trennis Elliot was driving a well-drilling support truck owned by Byers Well Drilling ("Byers") when he experienced a catastrophic blowout of the truck's right front tire. The explosion knocked the hood open, blocking Elliot's vision. He lost control of the vehicle and struck a van, injuring two passengers and killing Roberta Underwood. Individually and as the administrator of her estate, Gregory Underwood sued Elliot and Byers, as well as the company that sold the tire to Byers (Pro-Formance Carriers, Inc.), the company that installed the tire (Select Tire, Inc.), and the tire manufacturer (Bridgestone Firestone North American Tire).[1]
After extensive discovery, Underwood moved for partial summary judgment in his negligence claim against Select Tire and Pro-Formance, who then moved for summary judgment against him. Pro-Formance *265 and Select Tire argued they had no legal duty to Underwood and that any breach of their alleged duty was not the proximate cause of the collision. The trial court denied Underwood's motion but granted summary judgment to Pro-Formance and Select Tire. Underwood appeals that order in Case No. A08A2163; Byers and Elliot appeal it in Case No. A08A2164; and Bridgestone appeals it in Case No. A08A2165.
On appeal we review the trial court's grant of summary judgment de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Ford v. Bank of Am. Corp., 277 Ga.App. 708, 627 S.E.2d 376 (2006).
1. The facts. The record shows that Johnny Thomas owns Pro-Formance, a company that manufactures truck beds and trailers, and Thomas Truck Sales, which are located in the same facility. He also co-owns Select Tire, which is located across the street. Select Tire sells and installs tires and after-market wheels, and Pro-Formance buys tires and wheels from Select Tire for its trailers. Pro-Formance sells the tires attached to the trailers it manufactures and occasionally sells spare tires to customers.
The tires involved in this litigation were originally on a truck Thomas owned and traded to a customer who wanted different wheels and tires, so Thomas took them off and had them placed in one of Select Tire's bays. When asked if he put the tires at Select Tire to sell, Thomas first testified, "Probably not, I did not think they were worth anything. They were just two big ol' rough tires," but then said he did not know why they were there.
Select Tire put all its used truck tires in one bay. Some of the tires were sold as scrap and some were recapped, according to the customer's preference. Some customers, including Byers, left their used tires at Select Tire to be recapped and put back on their trucks later. Select Tire's co-owner Tommy Lovell testified that Byers' president Lon Dillard asked him about these wheels and tires and Lovell told him to talk to Thomas because the tires belonged to him. Lovell would not have scrapped these tires because they were still usable.
Thomas testified that he accepted Dillard's offer of $500 for the two wheels and tires, called "flotation tires," which were wider than normal and therefore provided better traction off-road. He did not discuss Dillard's plans for the tires.
Dillard testified that he was at Select Tire looking for new tires when he asked Lovell about these tires, which were leaning up against the wall. He knew they were used but they still had "a good bit of tread left" and did not appear to be regrooved.[2] Dillard had regrooved a motorcycle tire once and thought it was very obvious, but at a later deposition he admitted he had no experience inspecting tires, regrooved or not, and he did not really know whether these tires had been regrooved; he just "felt they were not."[3] He knew regrooved tires should not be put on the front axle. He asked Lovell whether the wheels and tires would work on his truck and Lovell said they would as long as they had sufficient clearance. Dillard did not know how a tire expert would inspect a used tire or whether an inspection would require dismounting the tire from the wheel. He told Thomas at Pro-Formance that he wanted the wheels and tires for the front of his 1994 Kenworth water truck, and Thomas asked for $500. Dillard spoke with his partner and then bought them from Thomas.
No one expressed any concern to Dillard about putting these tires on the front end of the truck, and Dillard relied on the expertise of the seller and installer to select the right tires and to follow any applicable federal *266 regulations. He would have expected them to advise him if the tires had been regrooved and should not have been placed on the front axle, although in his opinion no one could tell by looking that the tires had been regrooved.
After paying Thomas, Dillard asked Lovell to exchange the wheels and tires for the existing front tires on the water truck. Lovell visually inspected the tires, looking for cracks in the tread, checked the air pressure, then bolted them on. He could not tell if they had been patched without taking the tires off the wheels, which he did not do. He was not concerned about putting these tires on the front because he could see they had not been recapped and testified they had not been regrooved. Lovell knew from experience these were the right size and type of tire for this type of truck and use, being made for vehicles with a heavy front end to use in mud and soft ground, and also knew that it was illegal to put recapped or regrooved tires on the front axle. He would not have scrapped these tires because they were usable, and he had plenty of room so it would not have mattered to him if they remained in the shop for years. Select Tire charged Byers $10 to exchange the wheels.
Byers' co-owner Timmy Odom testified that he looked at the tires after they were put on the truck, and while he was no tire expert he thought these looked like good tires. The wheels and tires remained on the water truck without change until the collision more than five months and a few thousand miles later. The driver inspected the truck's air, oil, and lights daily, and never reported any problems with the truck.
Driver Elliot testified that he was the only employee who drove this water truck before the collision. He looked at the tires before he drove the truck that morning and saw they were not low or damaged, checked the oil, then securely latched the hood shut. After working a full day, he and a co-worker were on their way back to Byers on a four-lane highway driving about 60 mph when he heard a loud explosion and the hood flew up. The hood, which tilted up toward the front of the vehicle, blocked the windshield entirely. The truck "jerked real hard" to the right and Elliot was unable to hold the wheel straight. He veered off the road and struck a van waiting at an intersection, then both vehicles slid into an embankment. When he got out he could see where the wheel hit the pavement after the tire blew out, and the tire was shredded.
The parties' expert witnesses have widely divergent opinions, although all those who examined the tires said they had been regrooved and should not have been installed on the front axle. Additionally, expert Joseph Grant testified that the failed tire had been regrooved excessively and blew due to a localized impact injury late in the tire's life. Expert witnesses Troy Cottles, Jon Crate, and Gary Derien testified that the tire failed because it was defectively manufactured. Expert Christopher Shapley testified that the failure of the right front tire should not have caused the driver to lose control, which was caused in this case by the truck's poor mechanical condition. Expert E. Blake Wood testified that the condition of the truck's steering mechanism did not contribute to the driver's loss of control.
Expert Wade Bartlett testified he found no mechanical basis for the driver's inability to steer straight, and that a vehicle commonly moved laterally after a blowout. Finally, expert James Gardner testified that the tire failed because it had been regrooved excessively and blew because it sustained an injury that damaged the internal wires, not because it was defectively manufactured.
The trial court held that, pretermitting whether Pro-Formance and Select Tire represented that the tire was safe, Pro-Formance was not a tire dealer and therefore owed no duty to Byers to inspect the tire. The court also found that "Select Tire, as the installer, did not owe a duty to any party to inspect the tire for suitability for its intended use because the court cannot find and plaintiff has not cited to authority to the contrary," and therefore granted summary judgment to both parties on Underwood's ordinary negligence claim. As to Underwood's claim of negligence per se, the trial court found that the claim failed because the federal regulation Underwood relied on only prohibited using regrooved tires on the front wheels of any truck or truck tractor, and *267 neither Pro-Formance nor Select Tire used the regrooved tires. None of the appellants enumerates as error the grant of summary judgment on plaintiff's claim of per se negligence.
2. Duty as seller and installer. Plaintiff Underwood and co-defendants Byers Well Drilling and Bridgestone contend that the trial court erred in holding that Pro-Formance owed no duty to Byers as a matter of law, because the law does not limit the duty to inspect only to retailers who sell a high percentage of a particular product. Likewise, they argue, the trial court erred in finding that Select Tire, as an installer, had no duty to inspect a tire for suitability and recognize a patent defect.
The elements of a negligence cause of action are: "(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm"; (2) a breach of this standard; (3) a causal connection between the conduct and the injury; and (4) damages from the breach of duty. Lee Street Auto Sales v. Warren, 102 Ga.App. 345, 347(1), 116 S.E.2d 243 (1960). This legal duty may arise from "the general duty one owes to all the world not to subject them to an unreasonable risk of harm.... [N]egligence is conduct which falls below the standard established by law for the protection of others" against this risk. Bradley Center v. Wessner, 250 Ga. 199, 201, 296 S.E.2d 693 (1982).
Federal regulations prescribe conditions under which regrooved tires may be sold for introduction into interstate commerce, including the width of the new grooves, the amount of tread material that should remain above the cord material after regrooving, and the absence of cracking or separation. 49 CFR §§ 569.1, 569.7(a)(2). Industry standards echo the federal regulations. While the tires at issue here were designed and labeled by Bridgestone as regroovable, federal regulations and industry standards prohibit using a regrooved tire of this capacity on the front wheels of any truck or truck tractor. 49 CFR § 393.75(e). Regrooved tires are not mounted on the steering axle because, as several experts explained, they are more susceptible to damage and the "disablement" of one of two front tires on a large truck may cause loss of steering control, whereas the loss of one of eight back tires is not as critical.
(a) Seller. Pro-Formance argues that it had no duty to Underwood because it was not in the business of selling tires and this was simply a "yard sale transaction" by a "mom and pop company that customizes pickup trucks and builds trailers." The record does not support that conclusion as a matter of law, however. The company makes and sells trailers, which come with the wheels and tires Pro-Formance selects and installs, along with a spare if the customer wants one.
The trial court relied on an Ohio case for the proposition that Pro-Formance had no duty to Byers because it was not a tire dealer but merely the tire's former owner. But the facts in that case do not mirror those here; in that case, the court held that the defendant, which sold a used car as is to a car dealer, owed no duty to the customer who bought it from the dealer, and here we have no similar intervening party. Thrash v. U-Drive-It Co., 110 N.E.2d 419, 423, 158 Ohio St. 465 (1953). Additionally, nothing in our law requires a company to sell only or mostly one product before it incurs a duty toward its customers, and the evidence establishes that Pro-Formance did sell tires and was in a business that required an appreciation of the importance of having the right tires for the right application.
[N]either duty nor negligence exists in a vacuumthey are entirely dependent upon circumstances involving others or their property.... The most common test of negligence is whether the consequences of the alleged wrongful act are reasonably to be foreseen as injurious to others coming within the range of such acts.
Sims v. American Cas. Co., 131 Ga.App. 461, 468(4), 206 S.E.2d 121 (1974), aff'd sub nom. Providence Washington Ins. Co. v. Sims, 232 Ga. 787, 209 S.E.2d 61 (1974).
[I]f a common danger connected with the general use of a product exists, then ... there may arise a duty to warn. See generally Ogletree v. Navistar Intl. Transp. Corp., [269 Ga. 443, 446, 500 *268 S.E.2d 570 (1998)]; Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994) (defective design case which involves warning).
(Punctuation omitted.) Boyce v. Gregory Poole Equip. Co., 269 Ga.App. 891, 895(1)(c)(1), 605 S.E.2d 384 (2004).
Pro-Formance president and Select Tire co-owner Thomas testified he knew recapped tires should not be mounted on the front axle, although he did not know the difference between recapped and regrooved tires. In contrast, Byers' president Dillard testified he had no experience or education regarding tires or wheels and did not know how a tire person should inspect a used tire. He asked Select Tire co-owner Lovell if the tires would work on his truck and Lovell said yes. No one at Pro-Formance or Select Tire expressed concern about putting the tires on the front axle. He relied on the expertise of the seller and installer, expected them to know more about tires than he did, and thought they should have advised him the tires had been regrooved and should not be put on the front axle.
Select Tire was in the business of mounting and installing tires and should have known the tires were regrooved, he thought; likewise Pro-Formance should have known they were regrooved because its owner Thomas attended many vehicle auctions and bought and sold trucks. The co-owner of Byers Well Drilling looked at the wheels and tires after Select Tire put them on and said that while he was no tire expert, to him the tires looked good.
Although disputed, the evidence is sufficient to create a question of fact as to whether Pro-Formance's line of goods is sufficiently related to the tire business to conclude that Pro-Formance sells tires, and the trial court erred in holding otherwise. See Holman Motor Co. v. Evans, 169 Ga.App. 610, 613-614(2)(c), 314 S.E.2d 453 (1984) (evidence sufficient to raise question whether dealer who inspected car was negligent in failing to discover defect in suspension).
Further, while Pro-Formance contends that it had basically thrown this tire away, its president Thomas testified he did not know why the tire was taken to Select Tire. Select Tire's co-owner Lovell testified that the bay in which the tire was located contained both tires to be scrapped and tires to be recapped and reclaimed. He personally would not have scrapped these tires because they still had value, and they could have remained in the shop for years without being discarded. According to Byers' president, the wheels and tires were visible to customers in the front of the shop. Despite Thomas's testimony that he did not know the tires had any value, that he did not think they were worth anything, and that Byers offered him $500, he also testified that he did not remember the tires at all. Byers' president testified that Pro-Formance set the price at $500, contradicting Thomas's recollection that the tires were worthless and that Byers named the price.
"Whether there has been negligence and whether there was a causal relation and proximate cause to the alleged injuries are questions of fact for jury resolution, except where the circumstances are such that they will support but one result. [Cit.] Such was not the case here." Wade v. Mitchell, 206 Ga.App. 265, 269-270(4)(a), 424 S.E.2d 810 (1992). While a retailer generally has no duty to disclose a latent product defect of which it has no knowledge, Federal Ins. Co. v. Farmer's Supply Store, 252 Ga.App. 17, 19, 555 S.E.2d 238 (2001), in this case, the "defect"the regroovingwas not latent, but patent. Viewing the evidence in the light most favorable to the non-movant, this retailer knew or should have known the tire had a patent condition, not obvious to the buyer, that limited its use. The trial court erred in granting summary judgment to Pro-Formance on the ground that it was not a tire dealer.
(b) Installer. As to Select Tire, whether it breached a legal duty and whether that breach was a proximate cause of Underwood's damages are also jury questions. See Wade v. Mitchell, supra, 206 Ga. App. at 269-270, 424 S.E.2d 810. Select Tire's co-owner and installer Lovell knew it was "not legal" to put regrooved tires on the front axle. Byers' president Dillard testified that he relied on Select Tire's expertise in identifying whether these tires were appropriate *269 for its vehicle, and the record contains expert testimony that a person in the tire business should have known that these tires were regrooved.
The record contains other evidence that Select Tire should have known the tires were regrooved and should have advised Byers not to put them on the front axle. Expert Grant thought the tire should have been inspected closely before being installed on the truck. A person who serviced tires could have looked at it and known it was regrooved because the edge of the original groove was visible, as was the irregular width of the new grooves. Expert Derien also thought someone in the tire business should have known this tire was regrooved because that fact was "quite clear just by looking at the tread." Another expert testified that upon casual observation it was "obvious" the tire had been regrooved and should not have been placed on the front axle, and also testified it was "not unreasonable" for a buyer going into a tire shop to rely on the shop's expertise to ensure a tire was safe. Finally, one expert testified that it was the installer's responsibility to put the right tire on the truck, and to know that these tires were regrooved and should not be put on the front.
This evidence is sufficient to create a question of fact as to whether Select Tire had a duty to know and advise Byers about the suitability of the tire.
3. Duty undertaken. Additionally, having undertaken the duty to inspect the tires upon which Byers relied, Pro-Formance and Select Tire had to perform that duty with care.
[U]se by a third person of a defective instrumentality, whether it be a vehicle, an elevator, a machine or an air hose, in the manner in which such instrumentality is customarily used, where the fact of inspection is known to the third person but the defect is unknown, demonstrates reliance by the third person upon the defendant's safety inspection of the defective instrumentality.
Universal Underwriters Ins. Co. v. Smith, 253 Ga. 588, 591, 322 S.E.2d 269 (1984).
The evidence establishes that both Pro-Formance and Select Tire were aware the tire was well-used when they sold and installed it. Further, some evidence in the record indicates Pro-Formance represented that these tires were appropriate for the use Byers intended. Byers' president Dillard testified that he asked Pro-Formance president Thomas if he thought the tires were good and told him he planned to put them on the front axle of his water truck. Thomas replied yes. Other evidence establishes that Select Tire represented to Byers that these tires would work on the water truck and inspected the wheels and tires before putting them on Byers' truck.
"If a person is without knowledge as to whether a particular thing is true or not, he ordinarily will act at his peril in representing it to be true." King Hardware Co. v. Ennis, 39 Ga.App. 355, 363, 147 S.E. 119 (1929).
Representations imply knowledge, and if a tradesman sells or furnishes an article representing it to be safe for the uses for which it was designed ... and if it turns out that the article was defective, then, in a suit against him for injuries occasioned thereby, an allegation that he either knew or ought to have known of the defects will be sufficient as a charge of negligence in his failure to know.
(Citations omitted.) Floyd v. Morgan, 106 Ga.App. 332, 335(2), 127 S.E.2d 31 (1962). By making representations regarding the tire's quality and fitness for use on Byers' truck, Pro-Formance and Select Tire assumed the duty of discovery and warning. Pro-Formance's argumentthat it had no duty to Byers because it is a simple operation, in contrast to Byers, which is a "sophisticated user" that "runs a fleet of huge well-drilling rigs"raises a factual issue, not a legal one demanding summary judgment as a matter of law.
4. State of tire when sold. Pro-Formance and Select Tire argue that, regardless of their duty, Underwood produced no evidence that the tire was regrooved when Byers bought it. To the contrary, the evidence in this regard reveals a dispute. The *270 experts testified the tire was regrooved when inspected after the accident.[4] While Select Tire's co-owner Lovell testified the tires were not regrooved when he put them on, Byers' president Dillard testified that the wheels and tires remained on the truck unchanged from the time Select Tire put them on until the collision. Although Dillard initially testified that the tires were not regrooved when he bought them, in a subsequent deposition as the corporation's representative, under OCGA § 9-11-30(b)(6) he explained that he testified to that effect "just because [he] felt they were not," not because he knew they were not; he had no experience inspecting tires, regrooved or not, and was surprised when the experts said the tires had been regrooved.
"Circumstantial evidence may be sufficient to create a jury issue in the face of direct evidence to the contrary[,]" if it is inconsistent with the defendant's evidence or demands a finding of fact on the issue in favor of the plaintiff. Jones v. Bd. of Regents etc. of Ga., 262 Ga.App. 75, 81(4), 585 S.E.2d 138 (2003). The circumstantial evidence that the tire was regrooved when Byers bought it is inconsistent with the direct evidence it was not, thus creating a factual issue for the jury to decide.
5. Proximate cause. Finally, the appellees argue that even if they had a duty and the tire was regrooved when sold, no evidence showed the regrooved tire proximately caused the collision. They contend that Underwood failed to present evidence the regrooving caused the tire to fail or that the truck crashed because the tire failed, and therefore the causal connection between their conduct and the injury is too remote to be the basis of a recovery.
Even if a defendant is negligent, if other circumstances "preponderate in causing the injurious effect, such damages are generally deemed too remote and contingent to justify a recovery." Wright v. Ashe, 220 Ga.App. 91, 94, 469 S.E.2d 268 (1996). On the other hand, the fact that other causes may have contributed to an injury does not absolve a negligent defendant. A negligent act may have more than one proximate cause. Ballenger Paving Co. v. Gaines, 231 Ga.App. 565, 569(1)(a)(2), 499 S.E.2d 722 (1998).
"[I]f the original negligent actor reasonably could have anticipated or foreseen the intervening act and its consequences, then the intervening act of negligence will not relieve the original actor from liability for the consequences resulting from the intervening act." Smith v. Commercial Transp., 220 Ga.App. 866, 867(1), 470 S.E.2d 446 (1996). Questions of negligence and proximate cause are usually not proper for summary adjudication and instead must be resolved by a jury except in the most plain and palpable cases. See North v. Toco Hills, Inc., 160 Ga.App. 116, 119, 286 S.E.2d 346 (1981).
Here, the evidence is disputed as to whether the tire failed because it was regrooved, defective, or struck an object, and whether the driver lost control because the tire blew, the truck's steering mechanism was in disrepair, or he was incompetent. The issue is not whether the regrooving caused the wreck, but whether the wreck would have occurred if the regrooved tire had not been mounted on the steering axle.
Accordingly, the trial court's grant of summary judgment to Pro-Formance and Select Tire is reversed.
Judgment reversed in Case Nos. A08A2163, A08A2164, and A08A2165.
JOHNSON, P.J., and PHIPPS, J., concur.
NOTES
[1] The passengers filed separate suits.
[2] A regrooved tire is one "with new tread produced by cutting into the tread of a worn tire." 49 USCS § 30123(a)(1); 49 CFR § 569.3(d).
[3] Although Pro-Formance argues that Dillard's later testimony was contradictory and should be construed against him under the Prophecy rule, that rule is inapplicable because Dillard is not a party. Thompson v. Ezor, 272 Ga. 849, 851(2), 536 S.E.2d 749 (2000).
[4] While Select Tire contends that a man who inspected the truck after the wreck said the tires were not regrooved, that deposition is not contained in the record on appeal and cannot be considered. "Statements of fact in the briefs of the parties unsupported by evidence in the record cannot be considered on appeal." McGonagil v. Treadwell, 216 Ga.App. 850, 853(1), 456 S.E.2d 260 (1995). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322506/ | 676 S.E.2d 594 (2009)
Lennie and Bonnie HAMBY, Plaintiffs,
v.
PROFILE PRODUCTS, LLC, Terra-Mulch Products, LLC, Roy D. Hoffman, and Electric Service Group, Inc., Defendants.
No. COA08-942.
Court of Appeals of North Carolina.
May 19, 2009.
*596 Jones Martin Parris & Tessener Law Offices, P.L.L.C, by John Alan Jones & G. Christopher Olson, Raleigh, for plaintiffs.
Forman Rossabi Black, P.A., by Amiel J. Rossabi & William F. Patterson, Jr., Greensboro, for defendant Terra-Mulch Products, LLC.
WYNN, Judge.
This is the second appeal arising from an action brought by Plaintiffs Lennie and Bonnie Hamby against defendants Roy Hoffman; Terra-Mulch, L.L.C. ("Terra-Mulch"); Profile Products, L.L.C. ("Profile"); and Electric Service Group, Inc.("ESG"), for personal injuries sustained in a workplace accident. Though this matter has been the subject of opinions from this Court and the Supreme Court, to appreciate the procedural posture of this case, we first describe the roles of each of the parties involved in this litigation.
Plaintiff Lennie Hamby ("Hamby") worked as a truck-dump operator for Terra-Mulch at its Conover, North Carolina plant. While descending an elevated platform to clear accumulated wood chips in an auger pit, he slipped and entangled his left leg in the augers, which failed to deactivate because the emergency switch was inoperable. The incident resulted in the amputation of his left leg above the knee. Lennie and Bonnie Hamby ("Plaintiffs") brought a civil action describing Terra-Mulch as a wholly-owned subsidiary of Profile; Profile as the alter ego of Terra-Mulch; Roy Hoffman as an Assistant Plant Manager for Terra-Mulch; and ESG as a corporation hired to perform electrical work at Terra-Mulch's Conover plant.
Plaintiffs "allege that Profile and Terra-Mulch collectively failed to provide a safe work site for the inherently dangerous work Hamby performed and that they thus `engaged in conduct which was grossly negligent, willful and wanton, and substantially certain to lead to death or serious injury. ...'" Hamby v. Profile Prods., L.L.C., 361 N.C. 630, 632, 652 S.E.2d 231, 233 (2007). Though Plaintiffs asserted joint claims against Profile and Terra-Mulch, Plaintiffs argued (and our Supreme Court so interpreted) that they were asserting a claim against Terra-Mulch pursuant to Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), and an ordinary negligence claim against Profile. Hamby, 361 N.C. at 634, 652 S.E.2d at 234. Plaintiffs also asserted a claim against Terra-Mulch's Assistant Plant Manager, Roy Hoffman, pursuant to Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985), alleging that he "engaged in misconduct which was willful and wanton." Finally, Plaintiffs alleged that ESG negligently performed electrical work causing an emergency stop button to become inoperable, resulting in serious injury to Hamby.
In May 2005, all Defendants moved for summary judgment. On 1 June 2005, Plaintiffs moved to compel discovery, requesting relief pursuant to Rule 56(f) of the North Carolina Rules of Civil Procedure 56(f). On 6 June 2005, without ruling on Plaintiffs' motion to compel discovery, the trial court granted summary judgment to Terra-Mulch and Hoffman, but denied summary judgment to Profile and ESG. Profile immediately appealed the denial of summary judgment to this Court, which in a divided opinion dismissed that appeal as interlocutory. Hamby v. Profile Prods., L.L.C., 179 N.C.App. 151, 158, 632 S.E.2d 804, 809 (2006).
Based on the dissenting opinion, Profile appealed as a matter of right to our Supreme Court, which found the denial of summary judgment to Profile immediately appealable. *597 Hamby, 361 N.C. at 639, 652 S.E.2d at 237. To reach that result, the Supreme Court first agreed that Profile's appeal from the denial of summary judgment was interlocutory because the trial court's order "does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Id. at 633, 652 S.E.2d at 233 (citations and quotation marks omitted). The Court further noted that the trial court did not certify the matter for appeal under Rule 54(b); so, to merit review, the interlocutory order had to affect a substantial right. Id. at 634, 652 S.E.2d at 233-34. The Court next focused on Plaintiffs' allegations and evidence that "Profile is [Terra-Mulch's] sole member[-manager]," id. at 636-37, 652 S.E.2d at 235, and that under the pertinent statutes, "when a member-manager is managing the LLC's business, its liability is inseparable from that of the LLC."[1]Id. at 638, 652 S.E.2d at 236. Because Plaintiffs' allegations and forecast of evidence tended to show that Profile was conducting Terra-Mulch's business when Hamby was injured, the Supreme Court concluded that "Profile's liability for actions taken while managing Terra-Mulch is inseparable from the liability of Terra-Mulch...." Id. at 639, 652 S.E.2d at 237. It followed that the grant of summary judgment to Terra-Mulch, while denying summary judgment to Profile, created the risk of inconsistent verdicts and made the denial of summary judgment to Profile immediately appealable. Id. The Court further concluded that,
the trial court erred in denying Profile's motion for summary judgment because the denial was premised on Plaintiffs' assertion of a third-party ordinary negligence claim against Profile, a claim that, as a matter of law, plaintiffs could not bring against Profile. Therefore, we remand this case to the Court of Appeals for further remand to the trial court for entry of summary judgment in favor of Profile.
Id.
After the Supreme Court's decision, on 9 January and 3 March 2009, Plaintiffs filed a Motion for Reconsideration regarding the granting of summary judgment in favor of Terra-Mulch, contending that,
When the summary judgment arguments were heard ..., the parties' arguments were premised on Profile's status as a separate legal entity apart from the employer, Terra-Mulch. As such, the misconduct on the part of Defendant Profile was not attributed to Defendant Terra-Mulch. The Supreme Court Opinion in this matter materially changed the substantive law governing issues involved in this case and compels a different result with respect to the summary judgment ruling in favor of Defendant Terra-Mulch. Under the Supreme Court's ruling, the actions, misconduct, and knowledge of Profile is properly attributable to Defendant Terra-Mulch.
The trial court denied Plaintiff's Motion for Reconsideration on 8 May 2008 but certified "the judgment and all rulings in favor of Defendant Terra-Mulch Products, LLC" to this Court for immediate review. Thereafter, Plaintiffs gave "notice of appeal from the following Orders, rulings, and actions of the trial court:"
(1) The Order by the Honorable Nathanial J. Poovey entered on 21 June 2005, granting Defendant Terra-Mulch Products, LLC's and Defendant Roy D. Hoffman's Motions for Summary Judgment;
(2) The decision by the Honorable Nathanial J. Poovey to proceed with the hearing of Defendant Terra-Mulch Products, LLC's Motion for Summary Judgment without addressing Plaintiff's pending Motion to Compel and request for relief pursuant to Rule 56(f) of the North Carolina Rules of Civil Procedure;
(3) The Order of the Honorable Robert P. Johnston entered 27 July 2005, staying discovery pending Defendant Profile Products, LLC's appeal;
(4) The decision by the Honorable Robert P. Johnston to proceed with the hearing *598 of Defendant Profile Products, LLC's Motion to Stay without addressing Plaintiffs' pending Motion to Compel;
(5) The 8 May 2008 Order by the Honorable Timothy L. Patti denying Plaintiffs' Motion for Reconsideration in Light of Subsequently-Decided Authority pursuant to N.C.R. Civ.P.60(b)(6); and
(6) The decision of the Honorable Timothy L. Patti to proceed with the hearing of Plaintiffs' Motion for Reconsideration without addressing Plaintiffs' pending Motion to Compel and request for relief pursuant to Rule 56(f) of the North Carolina Rules of Civil Procedure.
Plaintiffs also filed a petition for writ of certiorari, asking this Court to review the grant of summary judgment to Hoffman contemporaneously with the motion to reconsider the grant of summary judgment to Terra-Mulch. Defendants Terra-Mulch and Hoffman opposed Plaintiffs' petition for writ of certiorari; Terra-Mulch also moved to dismiss this appeal.
From the outset, we observe that our Supreme Court, in mandating the entry of summary judgment in favor of Profile, found it significant to note preliminarily "that plaintiffs did not cross-assign error to the trial court's grant of summary judgment for Terra-Mulch on grounds that the exclusive remedy plaintiffs have against Terra-Mulch is under the Workers' Compensation Act." Id. at 634, 652 S.E.2d at 234. The Supreme Court pointed out that,
Plaintiffs' complaint, amended three times, asserts all claims against Terra-Mulch and Profile jointly, and none of these claims allege ordinary negligence as to those defendants. Before the trial court, the Court of Appeals, and this Court, plaintiffs have argued that Profile's liability is based on ordinary negligence, not gross negligence. The pivotal question presented by this case is whether, as a matter of law, plaintiffs are able to assert an ordinary negligence claim in civil court against Profile, the member-manager of the employer Terra-Mulch. To answer that question and, in so doing, determine whether the trial court's order creates the risk of inconsistent verdicts, we must decide whether Profile, like Terra-Mulch, is entitled to the protection of the exclusivity provision of Chapter 97.
Id.
The Court's statement that the Plaintiffs failed to "cross-assign error to the trial court's grant of summary judgment for Terra-Mulch on grounds that the exclusive remedy plaintiffs have against Terra-Mulch is under the Workers' Compensation Act," when read alone, appears to indicate that the trial court's order of summary judgment in favor of Terra-Mulch was a final order. However, in mandating that summary judgment be granted for Profile, the Supreme Court did not reach the issue of whether the trial court properly determined that Plaintiffs could not establish a viable Woodson claim against Terra-Mulch. Instead, the Court held that "the trial court erred in denying Profile's motion for summary judgment because the denial was premised on Plaintiffs' assertion of a third-party ordinary negligence claim against Profile, a claim that, as a matter of law, plaintiffs could not bring against Profile." Id. at 639, 652 S.E.2d at 237. Thus, we now address the issues arising from the granting of summary judgment for Terra-Mulch.
On appeal, Plaintiffs argue the trial court erred by (I) granting summary judgment in favor of Terra-Mulch on the ground that Plaintiffs failed to establish a Woodson claim; (II) denying their motion to reconsider because our Supreme Court's opinion in this case changed the law regarding evidence that could be attributed to Terra-Mulch at summary judgment; and (III) failing to consider discoverable evidence by not ruling on Plaintiffs' motion to compel discovery.
I.
Plaintiffs first contend that the trial court erred by granting summary judgment for Terra-Mulch on the ground that Plaintiffs failed to establish a Woodson claim; and thus, their exclusive remedy was under the Worker's Compensation Act. We uphold the trial court's grant of summary judgment in favor of Terra-Mulch.
"Summary judgment is proper `if the pleadings, depositions, answers to interrogatories, *599 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.'" Draughon v. Harnett County Bd. of Educ., 158 N.C.App. 208, 212, 580 S.E.2d 732, 735 (2003) (quoting N.C. Gen.Stat. § 1A-1, Rule 56(c) (2001)), aff'd per curiam, 358 N.C. 381, 591 S.E.2d 521 (2004). "A defendant may show entitlement to summary judgment by `(1) proving that an essential element of the plaintiff's case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense.'" Id. (citations omitted). "When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party." In re Will of Jones, 362 N.C. 569, 573-74, 669 S.E.2d 572, 576 (2008) (citation and quotation marks omitted).
The burden of establishing a Woodson claim is akin to a showing of culpability required to establish an intentional tort:
[W]hen an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer. Such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the [Worker's Compensation] Act.
Woodson v. Rowland, 329 N.C. 330, 340-41, 407 S.E.2d 222, 228 (1991). "The elements of a Woodson claim are: (1) misconduct by the employer; (2) intentionally engaged in; (3) with the knowledge that the misconduct is substantially certain to cause serious injury or death to an employee; and (4) that employee is injured as a consequence of the misconduct." Pastva v. Naegele Outdoor Adver., Inc., 121 N.C.App. 656, 659, 468 S.E.2d 491, 494 (1996) (citing Woodson, 329 N.C. at 340-41, 407 S.E.2d at 228). "Such circumstances exist where there is uncontroverted evidence of the employer's intentional misconduct and where such misconduct is substantially certain to lead to the employee's serious injury or death." Whitaker v. Town of Scotland Neck, 357 N.C. 552, 557, 597 S.E.2d 665, 668 (2003). Woodson created "a narrow exception to the exclusivity provisions of the North Carolina Workers' Compensation Act," applicable "only in the most egregious cases of employer misconduct." Id.
Woodson's facts are unquestionably the benchmark for a plaintiff seeking to escape the exclusivity provision of this State's Worker's Compensation Act.
In Woodson, the defendant-employer's president was on the job site and observed first-hand the obvious hazards of the deep trench in which he directed the decedent-employee to work. Knowing that safety regulations and common trade practice mandated the use of precautionary shoring, the defendant-employer's president nonetheless disregarded all safety measures and intentionally placed his employee into a hazardous situation in which experts concluded that only one outcome was substantially certain to follow: an injurious, if not fatal, cave-in of the trench.
Whitaker, 357 N.C. at 557-58, 597 S.E.2d at 668 (citing Woodson, 329 N.C. at 335, 345-46, 407 S.E.2d at 225, 231-32).
In sharp contrast to Woodson's singular circumstances, in this case, Plaintiffs relied on the following forecast of evidence at summary judgment: deposition testimony of employees acknowledging injuries and dangerous conditions at Terra-Mulch's Conover plant; an affidavit from a certified safety professional opining that documented OSHA violations at Terra-Mulch's Conover plant created "an extremely dangerous" work environment and made it "virtually inevitable that an employee would be killed or seriously injured"; Hoffman's agreement during his deposition that conditions documented by the Risk Assessment Report indicated a "virtual inevitability that somebody would be seriously injured unless safety changes were implemented"; and post-incident OSHA citations for safety violations at the Conover plant, including the lack of a stairway from the *600 loading dock to the truck-dump operator platform and inadequate guarding. There was also evidence that it was customary for workers to complete their tasks in a manner that exposed them to the safety violations. The trial court granted summary judgment for Terra-Mulch despite Plaintiffs' pending discovery requests. We agree that Plaintiffs' forecast of evidence was insufficient.
Plaintiffs' forecast of evidence in this case is not unlike the plaintiff-employee's insufficient allegations in Pendergrass v. Card Care, Inc., 333 N.C. 233, 424 S.E.2d 391 (1993). In Pendergrass, the plaintiff-employee asserted Pleasant claims against his co-employee-defendants and a Woodson claim against his employer-defendant. Id. at 237, 424 S.E.2d at 394. The plaintiff-employee alleged that the co-employee and employer defendants proximately caused his injuries because they were "grossly and wantonly negligent" in designing and permitting the use of a machine with inadequate guards in violation of OSHA standards, and further directing him to work at the inadequately guarded machine. Id. at 238, 424 S.E.2d at 394. The Court held that the plaintiff-employee did not state a Pleasant claim because, while the co-employee-defendants "may have known certain dangerous parts of the machine were unguarded when they instructed [the plaintiff-employee] to work at the machine, we do not believe this supports an inference that they intended that [the plaintiff-employee] be injured or that they were manifestly indifferent to the consequences of his doing so." Id. at 238, 424 S.E.2d at 394. Nor were the plaintiff-employee's allegations sufficient to meet "the higher level of negligence as defined in Woodson of substantial certainty of injury." Id. at 239-40, 424 S.E.2d at 395.
Similar to the plaintiff-employee's allegations in Pendergrass, Plaintiffs' forecast of evidence here shows that Hamby was injured by Terra-Mulch's inadequately guarded machinery the rotating augers in violation of OSHA standards. Our Supreme Court, however, found this circumstance insufficient to establish a Woodson claim, even when coupled with an allegation that supervisors specifically directed the employee to work in the face of the hazard. Id. at 235, 424 S.E.2d at 393. Plaintiffs' allegations and forecast of evidence in this case did not demonstrate that Hamby was specifically instructed to descend from the truck-dump operator platform in the manner that exposed him to the hazardous augers, or that Terra-Mulch was otherwise "substantially certain" he would be seriously injured. But cf. Woodson, 329 N.C. at 346, 407 S.E.2d at 231-32 ("[The employer's president's] knowledge and prior disregard of dangers associated with trenching; his presence at the site and opportunity to observe the hazards; his direction to proceed without the required safety procedures; [and evidence showing the trench's inherent danger] ... converge to make plaintiff's evidentiary forecast sufficient to survive [the employer]'s motion for summary judgment."). Accordingly, we agree with the trial court that Plaintiffs' forecast of evidence at summary judgment was insufficient to establish their Woodson claim against Terra-Mulch.
II.
Next, Plaintiffs argue the trial court erred by denying their motion to reconsider its grant of summary judgment for Terra-Mulch because the Supreme Court's opinion changed the applicable law. Plaintiffs seek relief under North Carolina Rule of Civil Procedure 60(b)(6) contending that the Supreme Court's holding that Profile's knowledge and misconduct can be imputed to Terra-Mulch changed the governing law that was applied in the summary judgment hearing, at which Profile and Terra-Mulch were treated as separate entities. We hold that the trial court was within its discretion to deny Plaintiffs' motion to reconsider.
Plaintiffs argue that in light of the Supreme Court's opinion, the trial court should further consider their evidence against Profile-a Risk Assessment Report prepared prior to Hamby's injury-as being attributable to Terra-Mulch. The Risk Assessment Report memorializes a risk control consultant's safety inspection of Terra-Mulch's Conover plant on 7 February 2002 for purposes of insuring the plant. The consultant generally found safety conditions at the Conover Terra-Mulch *601 plant unsatisfactory, and also made the following specific findings, which Plaintiffs deem particularly relevant to their Woodson claim:
[The Conover Terra-Mulch plant] has all the red flags of an uncontrolled high hazard account. High risk operation with frequency, severity and catastrophic worker compensation exposures, new management (acting plant manager and most experience on site manager has been there less than a year) (sic), high turn over, low paying jobs, basic OSHA controls not in place, no safety program, no accountabilities, no safety culture. Corporate pressure is work 24/7 and get production out.
. . .
Basically no [risk management programs] in place. There may be a sign here and there; safety glasses are worn and emergency exit maps, but that is it.
. . .
Physical ExposuresMachinery (caught in/amputations); Exposure: High; Control: Needs Improvement; Comments: Choppers, chippers & augers needs improvement. There are some jury-rigged interlock controls but I would want to rely on them if I fell onto a conveyor and was moving toward a chipper. (sic)
. . .
Worker's Compensation Comments: No foreign travel or aircraft. The acct has a turnover rate of between 30 and 70 employees a month. Most of these are temps but they also loose (sic) permanent employees each year (not sure how many, contact would not say). This provides a situation where employees are never really informally trained on jobs and we don't know the losses that have occurred to the temp. The acct keeps their OSHA log on their employees only and tell me the Temp agency takes care of the temps. The account has not addressed their basic OSHA requirements and basically I was told production is the only real concern.... The only accountability is budgetary and production.
. . .
This is the poorest worker's comp account I have seen in a long time. Without very strong guidance and leadership from the corporate office, it will never change (and based on used (sic) of temps and turnover, I don't think it will change even with corporate guidance). My opinion is that we should not insure this account.
. . .
Likelihood of Compliance: My contact stated the emphasis is production. Also he feels that the turn over is so great, why train, people who are gone tomorrow.... Right now this location is overwhelmed and corporate just isn't providing guidance....
Following the inspection, the safety consultant sent a letter, containing specific safety recommendations reflecting the unsatisfactory conditions, to Jim Cebulski, Profile's Vice President and Controller.
Rule 60(b)(6) authorizes a trial court to relieve a party from a final order or judgment for "[a]ny other reason justifying relief from the operation of the judgment." N.C. Gen.Stat. § 1A-1, Rule 60(b)(6) (2007). Accordingly, "the Rule has been described as a `grand reservoir of equitable power' by which a court may grant relief from a judgment whenever extraordinary circumstances exist and there is a showing that justice demands it." Barnes v. Taylor, 148 N.C.App. 397, 400, 559 S.E.2d 246, 248-49 (2002) (quoting Dollar v. Tapp, 103 N.C.App. 162, 163-64, 404 S.E.2d 482, 483 (1991)). Rule 60(b)(6) is properly employed to revisit a judgment affected by a subsequent change in the law. See id.; McNeil v. Hicks, 119 N.C.App. 579, 580-81, 459 S.E.2d 47, 48 (1995). However, this Court reviews a trial court's decision whether to grant relief from judgment under Rule 60(b)(6) for an abuse of discretion. Barnes, 148 N.C.App. at 399, 559 S.E.2d at 248.
Here, we find no abuse of discretion in the trial court's denial of Plaintiffs' motion to reconsider because their forecast of evidence is insufficient to establish a Woodson claim even when the Risk Assessment Report is attributed to Terra-Mulch. First, we deem it significant that the trial court heard evidence and arguments on all Defendants' summary judgment motions in the same *602 hearing. We also observe that Plaintiffs in fact attributed the Risk Assessment Report to Terra-Mulch, with the same level of detail with which they cite the Report to this Court in this appeal, in their Memorandum in Opposition to Defendants' Motion for Summary Judgment. Thus, even if we assume, as Plaintiffs contend, that the trial court did not consider the Risk Assessment Report for its probative value against Terra-Mulch, we hold that the consideration of the additional evidence would still not establish a prima facie Woodson claim against Terra-Mulch.
To reiterate, "[t]he elements of a Woodson claim are: (1) misconduct by the employer; (2) intentionally engaged in; (3) with the knowledge that the misconduct is substantially certain to cause serious injury or death to an employee; and (4) that employee is injured as a consequence of the misconduct." Pastva, 121 N.C.App. at 659, 468 S.E.2d at 494. Here, even though evidence in the record raises the suspicion that conditions at the Conover Terra-Mulch plant failed to comply with OSHA mandates, the evidence hardly shows that Terra-Mulch's noncompliance or other actions or omissions were substantially certain to cause serious injury or death. See Whitaker, 357 N.C. at 558, 597 S.E.2d at 669 (reinstating grant of summary judgment to municipal employer because plaintiff's evidence was insufficient to establish Woodson claim); see also Maraman v. Cooper Steel Fabricators, 146 N.C.App. 613, 555 S.E.2d 309 (2001) (reversing directed verdict on Woodson claim for defendant-employer), rev'd in part, 355 N.C. 482, 562 S.E.2d 420 (2002) (per curiam). Rather, the most favorable view of Plaintiffs' evidence demonstrates that the auger pit was inadequately guarded prior to Hamby's injury, in violation of OSHA regulations; the Risk Assessment Report tends to show that Terra-Mulch was aware of the inadequately guarded augers before Hamby was injured. As in Pendergrass, the Risk Assessment Report, even when cumulated with Plaintiffs' original forecast of evidence, does not sufficiently show that Terra-Mulch was substantially certain that serious injury or death would result. Accordingly, we reject Plaintiffs' contention that the trial court erred by denying their motion to reconsider.
III.
In their final argument, Plaintiffs contend that the trial court erred by granting summary judgment to Terra-Mulch before ruling on their outstanding motion to compel discovery.
After Terra-Mulch moved for summary judgment, Plaintiffs filed a motion to compel discovery against Profile and Terra-Mulch. The motion specifically requested an order compelling discovery pursuant to North Carolina Rule of Civil Procedure 37(a)(2), and stated further: "Additionally and out of an abundance of caution, Plaintiffs request relief pursuant to Rule 56(f) ... insofar as [Profile and Terra-Mulch] are refusing to produce materials which would bolster Plaintiffs' opposition to [Profile's and Terra-Mulch's] motion for summary judgment." The motion identified "information regarding other workplace injuries, workplace safety and OSHA compliance issues, and documents related to investigation of workplace safety incidents," including Reports of Injury.
The trial court heard all pending motions, including Plaintiffs' motion to compel and outstanding summary judgment motions, in a single hearing that occurred on 6 and 8 June 2005. At the hearing, the trial court heard argument from all counsel regarding the evidence and claims, and subsequently the court requested argument on Plaintiffs' motion to compel. Plaintiffs' counsel identified the Reports of Injury as the most important information sought in their motion to compel. Ultimately, after further argument on the discovery issue from counsel for Plaintiffs and Defendants, the following exchange occurred:
[Terra-Mulch's counsel]: There's nothing that they've asked for that would have any effect upon our argument as stated in our brief. If you'll look at them, nothing they're asking for has anything to do with it.
The Court: I haven't heard anything either, but, obviously, depending on how I rule on those other motions, it might take care of the motion to compel or a motion for protective order.
*603 [Plaintiffs' counsel]: Judge, as we stated in our brief, we think, based on the prior safety audit and the testimony of Mr. Hoffman that an injury, serious injury, was virtually inevitable, we think we meet the Woodson standard. I filedI have filed a motion to compel and noticed their motion for protective order out of an abundance of caution to make sure I don't have to defend a motion without having documents that will bolster my case, but I think we have sufficient evidence in the record now to defeat the pending motions for summary judgment, but if there's any doubt with the Court, then I think I'm entitled to those documents, because I think they might further bolster our case.
The remaining argument went to the merits of the pending motions for summary judgment with no further mention from either side of the discovery issues.
It is ordinarily error for a trial court to rule on a summary judgment motion without addressing a pending motion to compel discovery that "might lead to the production of evidence relevant to the motion ... and the party seeking discovery has not been dilatory in doing so." Conover v. Newton, 297 N.C. 506, 512, 256 S.E.2d 216, 220-21 (1979). However, the court "is not barred in every case from granting summary judgment before discovery is completed." Patrick v. Wake County Dept. of Human Servs., 188 N.C.App. 592, 597, 655 S.E.2d 920, 924 (2008) (quoting N.C. Council of Churches v. State, 120 N.C.App. 84, 92, 461 S.E.2d 354, 360 (1995), aff'd, 343 N.C. 117, 468 S.E.2d 58 (1996)). A trial court's granting summary judgment before discovery is complete may not be reversible error if the party opposing summary judgment is not prejudiced. See Conover, 297 N.C. at 512-13, 256 S.E.2d at 220-21 (holding that trial court's grant of summary judgment before completion of discovery did not prejudice party opposing summary judgment because information sought by pending discovery requests emerged at the hearing). But see Ussery v. Taylor, 156 N.C.App. 684, 686, 577 S.E.2d 159, 161 (2003) (stating that "plaintiff did not have adequate time to develop his case" where trial court granted summary judgment while plaintiff had pending discovery requests and had not been dilatory); Burge v. Integon Gen. Ins. Co., 104 N.C.App. 628, 630-31, 410 S.E.2d 396, 398 (1991) (holding the trial court erred by granting summary judgment a short time after initial discovery requests, and the plaintiff detrimentally relied on the defendant's promise to provide additional discovery). Moreover, this Court has stated that, generally, "motions for summary judgment should not be decided until all parties are prepared to present their contentions on all the issues raised and determinable under Rule 56." Am. Travel Corp. v. Cent. Carolina Bank & Tr. Co., 57 N.C.App. 437, 441, 291 S.E.2d 892, 895, disc. rev. denied, 306 N.C. 555, 294 S.E.2d 369 (1982).
Plaintiffs here argue the trial court erred by granting summary judgment without compelling production of Reports of Injury that allegedly would have "bolstered" their opposition to summary judgment. Plaintiffs characterized, at the summary judgment hearing and in their brief before this Court, the Reports of Injury as "bolstering" their opposition to summary judgment because they acknowledge receiving OSHA logs documenting the same injuries as the unproduced Reports of Injury. They also contend the Reports of Injury "could have proven the total number of workplace injuries at the [Conover Terra-Mulch] plant" and "the occurrence of similar incidents." Before this Court, Plaintiffs depict the OSHA logs as insufficient because they "contain only the vaguest description of an injury such as `left eye' or `mashed left thumb.'"
In contrast, Plaintiffs' position before the trial court was that they produced sufficient evidence to establish their Woodson claim against Terra-Mulch without the Reports of Injury, and their motion to compel was a mere "abundance of caution" a figurative "just-in-case" the trial court finds our evidence insufficient. Consistently with that position, Plaintiffs' counsel spent the remainder of the summary judgment hearing, on 8 June 2005, arguing the merits of the pending claims with no further insistence upon obtaining any additional discovery. Plaintiffs may not now argue the trial court erred by granting summary judgment for Terra-Mulch before ruling on their motion to compel *604 when Plaintiffs manifestly acquiesced in that course of events at the summary judgment hearing. Cf. Belcher v. Fleetwood Enters., Inc., 162 N.C.App. 80, 84, 590 S.E.2d 15, 18 (2004) (holding that plaintiffs could not complain that they had insufficient time to produce evidence where the trial court transformed defendants' Rule 12(b)(6) motion into a motion for summary judgment because plaintiffs "fully participated in the hearing" and did not request a continuance at the hearing).
Moreover, the trial court was required to give Plaintiffs, as the nonmoving party, the most favorable view of the evidence at summary judgment. Jones, 362 N.C. at 573-74, 669 S.E.2d at 576. Considering Plaintiffs' acknowledgment that the OSHA logs document most, if not all, of the same injuries documented by the Reports of Injury, we cannot conclude that any additional information in the Reports of Injury would have produced a different outcome. Nor are we moved by Plaintiffs' argument that any additional information in the Reports of Injury regarding "the total number of workplace injuries" or "the occurrence of similar incidents" would have assisted them any more than the OSHA logs in establishing their Woodson claim. Again, Plaintiffs were entitled to the most favorable view of the evidence in the OSHA logs, which show injuries over the span of at least three years at the Conover Terra-Mulch plant, including, by Plaintiffs' own admission, "numerous incidents that appear to be the same type injury as Hamby suffered...." Thus, the OSHA logs, when viewed most favorably to Plaintiffs, sufficed to show the record of previous injuries at the Conover Terra-Mulch plant, and the similarity of those injuries to Hamby's.
Accordingly, we find no error in the trial court's granting summary judgment to Terra-Mulch while discovery requests were pending because: Plaintiffs expressed a preparedness to oppose summary judgment without the Reports of Injury; argued the merits of the summary judgment motions without requesting further discovery; did not object during the trial court's rulings; and the OSHA logs, when viewed most favorably to Plaintiffs, provided a sufficient forecast of any additional evidence Plaintiffs allege to exist in the Reports of Injury. Indeed, our Supreme Court in Whitaker emphasized that Woodson "represents a narrow holding in a fact-specific case." Id. at 557, 597 S.E.2d at 668. Here, as in the majority of Woodson cases, Plaintiffs' evidence is insufficient even if Terra-Mulch had pre-incident knowledge of the Risk Assessment Report and the unproduced Reports of Injury.
In sum, we affirm the trial court's denial of Plaintiffs' motion to reconsider; deny Plaintiffs' petition for writ of certiorari; and deny Terra-Mulch's motion to dismiss.
Affirmed.
Chief Judge MARTIN and Judge ERVIN concur.
NOTES
[1] The Court conspicuously noted that Plaintiffs "did not cross-assign error to the trial court's grant of summary judgment for Terra-Mulch on grounds that the exclusive remedy plaintiffs have against Terra-Mulch is under the Worker's Compensation Act." Hamby, 361 N.C. at 634, 652 S.E.2d at 234. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261648/ | 428 A.2d 381 (1981)
STATE of Maine
v.
Nelson SPEARIN.
Supreme Judicial Court of Maine.
Argued March 3, 1981.
Decided April 10, 1981.
David M. Cox, Dist. Atty., Gary F. Thorne (orally), Asst. Dist. Atty., Bangor, for plaintiff.
Francis M. Jackson, South Portland (orally), for defendant.
Before McKUSICK, C.J., and WERNICK, GODFREY, NICHOLS, GLASSMAN and CARTER, JJ.
PER CURIAM.
After a jury trial, the defendant, Nelson Spearin, was convicted on two counts of theft by unauthorized taking or transfer. 17-A M.R.S.A. § 353 (Supp. 1980). On appeal, the defendant argues: 1) that the presiding justice erred in allowing the State to question the defendant about a prior conviction for cheating by false pretenses; and 2) that the presiding justice erred by adjudging the defendant guilty of Class C theft, rather than of Class D theft.
We affirm the judgment.
The following facts were undisputed at trial. On February 16, 1980, the defendant *382 paid Kennebeck Equipment Rental Company one day's rental for a welder and other tools. On the same day, the defendant approached Emery Lee and sold him these items for $700.00.[1] On February 18, the defendant paid Taylor Rental Company one day's rental for a wood splitter. The following day, February 19, the defendant sold the wood splitter to Jay McLaughlin for $300.00.[2] That evening, State Trooper Ronald Graves received an anonymous telephone call which informed him that Lee had purchased a stolen welder from the defendant. Trooper Graves investigated, and recovered all of the above described items.
The defendant testified that he told both Lee and McLaughlin that the items he sold to them were stolen[3] and that he placed the anonymous telephone call to Trooper Graves. The defendant alleged that in the past Lee had cheated him out of $750.00, and that McLaughlin had stolen wood from the defendant's cousin; by selling them the rented items and then informing the police, the defendant stated that he intended to "make up" for those past wrongs, insuring that the items would be returned to their rightful owners by the police and thus causing the loss to fall upon Lee and McLaughlin.
Upon cross-examination, the State received permission, over the defendant's objections, from the presiding justice to question the defendant about his 1975 conviction for cheating by false pretenses.
The defendant was convicted and sentenced to three years imprisonment.
I.
The defendant first argues that in admitting evidence of the defendant's prior conviction, the presiding justice erred by failing to specifically state that the conviction's probative value with regard to the defendant's credibility outweighed its prejudicial effect to the defendant. We disagree.
Admissibility of a prior conviction for impeachment of a witness is governed by M.R.Evid. 609(a).[4] Under the Rule, before such evidence is admitted, the trial court must determine that its probative value as establishing lack of veracity outweighs its prejudicial effect to the defendant. State v. Pinkham, Me., 383 A.2d 1355, 1357 (1978). However, there are no "magic words" which must be spoken by the presiding justice, nor is he expected, during a trial, to give a complete analysis of the factors involved in making the required determination. Cf. State v. Poland, Me., 426 A.2d 896, 900 (1981) (Trial judge not expected to give complete analysis of why he is excluding evidence under M.R.Evid. 403). It is sufficient that the record reveal that the determination was in fact made. We then examine the record to insure that the presiding justice neither misinterpreted M.R.Evid. 609(a), thereby applying an erroneous standard of law, nor abused his discretion in admitting or excluding evidence of a prior conviction.
In the instant case, after noting that the defendant had already cast doubt upon his veracity by admitting that he had cheated Lee and McLaughlin, the presiding justice stated:
I think counsel know that ordinarily I don't allow impeachment except where the defendant is trying to take advantage of the situation or something and in this *383 case, it's so unusual that I think the probative value of this evidence outweighs any possible prejudicial effect.
There is no indication that the presiding justice misunderstood the standard which M.R.Evid. 609(a) required him to apply. He did not determine that the prior conviction was probative because of its tendency to persuade jurors that if the defendant "did it before he probably did so this time." Pinkham, 383 A.2d at 1358 quoting Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 940 (1967). The potentially negative impact of defendant's admissions at trial upon his veracity was correctly observed by the justice to lessen the danger of prejudice resulting from such tendency of the evidence. Therefore, the probative value for impeachment purposes outweighed any possible prejudicial effect. We are satisfied that the presiding justice applied the proper standard of balancing the probative value, as establishing lack of veracity, against the prior conviction's prejudicial effect to the defendant. See Pinkham, 383 A.2d at 1357.
We also find that the trial court did not abuse its discretion by admitting evidence of the prior conviction. The case most similar on its facts to the instant case, in which we found an abuse of discretion, is State v. Roy, Me., 385 A.2d 795 (1978). There, Roy was convicted of taking indecent liberties with the fifteen-and-a-half-year-old daughter of a woman with whom he had been living for several years. The State cross-examined Roy about a prior conviction for incest, during which the State elicited testimony that the incest conviction involved Roy's fifteen-year-old daughter and resulted in a three year prison sentence. In vacating the conviction, we noted that the crime of incest was similar to the crime charged, and did not involve dishonesty; thus its bearing on Roy's veracity was so tenuous that the jury was likely to have difficulty in focusing on the limited purpose for which the evidence was offered. That difficulty was compounded by the State's improper probing into the factual details underlying the prior conviction. Id., 385 A.2d at 798. Roy can be distinguished from the case before us. Here, the prior conviction for cheating by false pretenses has more than a minimal bearing on general credibility. See State v. Gervais, Me., 394 A.2d 1183, 1186 (1978). The State did not elicit testimony revealing prejudicial factual details underlying the prior conviction.[5] We further note that the defendant's credibility was the crucial issue for determining whether the State had proved the defendant's culpable state of mind. Finally, the presiding justice gave carefully stated limiting instructions to the jury on their use of the prior conviction as evidence. In these circumstances, we find no error in the presiding justice's actions. Id., 394 A.2d at 1186-87; accord, State v. Chubbuck, Me., 406 A.2d 282, 283 (1979).
II.
The defendant next argues that the presiding justice erred by classifying his convictions as Class C crimes. Under the Maine Criminal Code, theft is a single crime which may be committed in several manners. 17-A M.R.S.A. § 351 (Supp.1980). Classification of theft convictions for sentencing purposes is governed by 17-A M.R. S.A. § 362 (Supp.1980), which reads in pertinent part:
3. Theft is a Class C crime if:
A. The value of the property ... is more than $1,000 but not more than $5,000; ....
4. Theft is a Class D crime if:
A. It is a violation of section 360, regardless of the value involved; ....
The defendant was convicted of theft by unauthorized taking or transfer (17-A M.R. S.A. § 353) of property valued at more than $1,000, but not more than $5,000. The defendant does not argue that there is insufficient *384 evidence to support those convictions; rather he contends that the evidence also supports theft convictions by the manner specified in 17-A M.R.S.A. § 360(1)(C). Therefore, regardless of the value of the property involved, for sentencing purposes the Court should have classified his offenses as Class D crimes.[6]
We find that the evidence in this case would not support a conviction under 17-A M.R.S.A. § 360(1)(C), which reads as follows:
Unauthorized use of property
1. A person is guilty of theft if:
...
C. Having custody of property pursuant to a rental or lease agreement with the owner thereof whereby such property is to be returned to the owner at a specified time and place, he knowingly fails to comply with the agreed terms concerning return of such property without the consent of the owner, for so lengthy a period beyond the specified time for return as to render his retention or possession or other failure to return a gross deviation from the agreement.
The evil at which this statute is aimed appears to be the knowing failure to return in a timely manner rented property of which the defendant has custody. The language of the statute supports this interpretation: the "having custody of property" clause modifies "he knowingly fails to comply with the agreed terms concerning return of such property . . ., for so lengthy a period beyond the specified time for return as to render his retention or possession or other failure to return a gross deviation from the agreement." We read this as requiring the defendant to have custody of the property during the lengthy period of time in which he knowingly fails to comply with the agreed terms concerning return. This interpretation is consistent with subsections A and B of § 360(1). Those sections deal with joyriding and with unauthorized personal use of a vehicle by a person hired to maintain, repair or use the vehicle. In all three subsections, the unlawful conduct relates to unauthorized use of property within the defendant's custody.
Further support can be found in 17-A M.R.S.A. § 362. The major element in sentence classification for theft is the value of the property or services taken. But with regard to § 360, the emphasis is clearly upon the manner in which the theft occurs; the conduct described in § 360 is singled out for special treatment regardless of the value of the property taken.
In the instant case, the defendant did not have custody of the rental property for a lengthy period beyond the time for return. He sold the welder to Lee before the time for its return, and he sold the wood splitter to McLaughlin just one day after the time for its return. The defendant did not violate 17-A M.R.S.A. § 360; therefore the presiding justice did not err in classifying the defendant's convictions as Class C crimes.
The entry is:
Judgments of conviction affirmed.
All concurring.
NOTES
[1] Evidence was presented to show that the value of the welder at the time was around $1,200.
[2] Evidence was presented to show that the value of the wood splitter at that time was approximately $1,700.
[3] Lee and McLaughlin each testified that the defendant stated that he owned the items he sold.
[4] M.R.Evid. 609(a) states:
For the purposes of attacking the credibility of a witness, evidence that he had been convicted of a crime is admissible but only if the crime (1) was punishable by death or imprisonment for one year or more under the law under which he was convicted, or (2) involved dishonesty or false statement, regardless of the punishment. In either case admissibility shall depend upon a determination by the court that the probative value of this evidence outweighs the prejudicial effect to the defendant.
[5] The jury heard only the following testimony concerning the prior conviction:
Q. Mr. Spearin, you're the same Nelson Spearin who was convicted on the 28th day of October 1975, Somerset County Superior Court, for cheating by false pretenses, is that correct?
A. Yes.
[6] The maximum prison sentence for a Class D crime is less than one year. 17-A M.R.S.A. § 1252(2)(D). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261660/ | 121 N.H. 233 (1981)
ELIZABETH M. LOURIE
v.
KEENE STATE COLLEGE & a.
No. 80-138.
Supreme Court of New Hampshire.
April 3, 1981.
*234 R. J. Shortlidge, Jr., of Keene, by brief and orally, for the plaintiff.
Bell, Falk & Norton, of Keene (Ernest L. Bell, III, on the brief and orally), for the defendant.
KING, J.
The plaintiff, Elizabeth M. Lourie, appeals from the granting of the defendants' motion for summary judgment. RSA 491:8-a (Supp. 1979). She argues that because there were issues of material fact to be resolved, it was error for the trial court to grant the defendants' motion and that this error deprived her of her constitutional right to a trial by jury. The plaintiff also asserts that it was error for the court to deny her request for findings. For the reasons herein stated, we reject the plaintiff's arguments and affirm the trial court.
For several years prior to the 1973-74 academic year, the plaintiff worked as a lecturer in physical education at Keene State College, a unit of the University of New Hampshire. In 1973, she received a notice of short-term or special appointment to teach art at the Wheelock Elementary School, a laboratory school operated by Keene State College as part of its teacher education program.
The appointment was for the 1973-74 academic year and called for a salary of $1,800. The notice of appointment bore facsimile signatures of the president of the University of New Hampshire and the defendant Leo F. Redfern, president of Keene State College. Although the notice of appointment required the plaintiff to sign the notice and return it, she failed to do so. She did perform the duties of an art teacher and cashed the checks which she received for her services.
After the close of the 1973-74 academic year, the college decided not to rehire the plaintiff and hired another person instead. This person had a "prospective" master's degree in art whereas the plaintiff had a master's degree with an emphasis in physical education.
*235 On February 8, 1977, the plaintiff brought an action against Keene State College, Clarence G. Davis, a former dean of the college, and Leo F. Redfern, president of the college. The writ alleged that: (1) the plaintiff was not paid a sufficient salary during the 1973-74 academic year; (2) the defendants had actually hired the plaintiff for the 1974-75 academic year and that she was improperly discharged; (3) the individual defendants had interfered with the plaintiff's right to receive adequate compensation during the 1973-74 academic year and with her continued employment during the subsequent academic year; (4) the individual defendants had maliciously interfered with the plaintiff's employment because of their feelings toward her husband; and (5) the individual defendants had interfered with her employment in violation of the official oppression statute, RSA 643:1, making it a misdemeanor for a public servant to commit an unauthorized act which purports to be an act of his office or knowingly refrain from performing a duty imposed on him by law with a purpose to benefit himself or another, or to harm another.
The defendants filed a motion for summary judgment supported by an affidavit of Redfern. The plaintiff filed an answer to this motion supported by her affidavit. The Trial Court (Randall, J.) denied the motion without prejudice and with the right to renew after taking of depositions. The plaintiff conducted considerable discovery, deposing both the individual defendants and an independent witness. On February 27, 1980, after a hearing at which the court had all the outstanding motions and the depositions before it, the Court (DiClerico, J.) granted the defendants' motion for summary judgment. On March 7, 1980, the plaintiff filed a motion for findings of fact and rulings of law which the court denied.
[1] The first issue which we address is whether the trial court erroneously granted the defendants' motion for summary judgment thereby denying the plaintiff her right to a trial by jury. "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." RSA 491:8-a (Supp. 1979). The salutary purpose behind the summary judgment statute is to save the time, effort, and expense of a trial when there is no genuine issue of material fact. See Armand Engineering Co., Inc. v. Labrie, Inc., 121 N.H. 107, 110, 427 A.2d 15, 16 (1981); Settle v. Keene Savings Bank, *236 120 N.H. 827, 829, 423 A.2d 986, 987 (1980); Soujanen v. Tardif, 120 N.H. 574, 576, 419 A.2d 1088, 1089 (1980); Arsenault v. Willis, 117 N.H. 980, 983, 380 A.2d 264, 266 (1977).
[2, 3] A review of the affidavits and depositions discloses that the plaintiff failed to present any specific facts which would support a verdict in her favor on any of the five counts contained in her pleadings. General and bare allegations of expected proof are insufficient to raise genuine issues of fact. Arsenault v. Willis, supra at 983, 380 A.2d at 266; see RSA 491:8-a (Supp. 1979). We hold, therefore, that the court properly granted the defendants' motion for summary judgment.
The plaintiff argues that because her appointment to the staff of the Wheelock School was as an "instructor," rather than a "lecturer," the provisions of the faculty handbook entitled her to notice by March 1, 1973, if she was not going to be rehired for the 1974-75 academic year, and that because the defendants failed to notify her by that date, she was, in effect, rehired for the following year. Consequently, she argues that she is entitled to compensation for the 1974-75 academic year despite the fact that her employment terminated in July 1974.
[4] The notice of appointment specifically instructed the plaintiff that if she wanted to accept the appointment she should sign the acceptance form and return it. We assume that the defendants' standard notice of appointment form required this procedure in order to avoid the one-year provision of the Statute of Frauds in those cases in which the actual employment agreement for a particular academic year is reached during the prior academic year. See RSA 506:2. Thus the requirement of written acceptances serves a substantial interest of the college by assuring that it may enforce its employment agreements against its staff. Whether the Statute of Frauds would have prevented the defendants from enforcing the agreement with the plaintiff in this particular case is immaterial because the college had chosen to make written acceptance a requirement generally and specifically included this requirement in its offer to the plaintiff. Because the plaintiff failed to comply with the terms of the defendants' offer, she did not accept the offer and is not entitled to the protection of the termination provisions of the contract, as contained in the faculty handbook, regardless of whether her appointment was as an instructor or as a lecturer. The plaintiff's assertion that her performance of the duties of an instructor for the 1973-74 academic year constitutes *237 a valid acceptance is not persuasive because it failed to give the defendants a commitment that could be enforced against her had she decided to leave Wheelock during the academic year. The plaintiff cannot by not signing the acceptance deny the defendants their right to enforce the contract against her and at the same time claim its benefits against them.
[5] The plaintiff next argues that the court's failure to make findings of fact and rulings of law was unconstitutional. The whole point of summary judgment is that there are no facts to be found.
Accordingly, the court's granting of the defendants' motion for summary judgment is affirmed.
Affirmed.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261662/ | 286 Pa. Superior Ct. 126 (1981)
428 A.2d 604
Robert C. PRUSER, Appellant,
v.
STATE FARM FIRE & CASUALTY CO.
Superior Court of Pennsylvania.
Submitted September 11, 1980.
Filed April 10, 1981.
Petition for Allowance of Appeal Denied July 10, 1981.
*127 Lee H. Roberts, Lock Haven, for appellant.
Larry E. Coploff, Lock Haven, for appellee.
Before SPAETH, HESTER and CAVANAUGH, JJ.
HESTER, Judge:
This is an appeal from an order of the Court of Common Pleas of Clinton County granting appellee's motion for a *128 compulsory nonsuit. The procedural history and facts relevant to the issues on appeal are as follows:
On July 10, 1978, appellant purchased an insurance policy from appellee covering unscheduled personal property in the sum of $15,000 and additional living expenses in the sum of $3,000. This coverage is known as a "tenant's policy" for the reason that the coverage extends only to the contents of the insured's residence. The premium in the sum of $61.00 was tendered the same day. At that time, the personal property being insured was located at a residence in Wayne Township, which was being leased from a Charles Corcelius.
In September, 1978, appellant vacated that residence and placed his furniture in a steel building owned by a Mr. and Mrs. Haagen located in Lamar Township. Later, appellant moved on January 15, 1979, to a residence owned by a Mabel Macklem situate in Wayne Township, and the unscheduled personal property was moved to that residence.
On February 10, 1979, a fire occurred which totally destroyed the personal property in question. Although appellant testified that he attempted on several occasions to notify the insurance agent of his change in address, he never did actually notify the company.
Upon notification of the loss, appellee offered to pay appellant the sum of $1,500.00. Appellant filed suit, proceeded to trial, and after presenting the liability portion of his case, the trial court granted appellee's motion for compulsory nonsuit. This timely appeal followed.
Appellant contends the trial court abused its discretion by finding that the insurance policy did not cover the personal property loss under its terms. The relevant portions of the policy are as follows:
Coverage B Unscheduled Personal Property
This policy covers unscheduled personal property usual or incidental to occupancy of the premises or a dwelling and owned or used by Insured, while on the described premises. . .
*129 This coverage also includes such unscheduled personal property while elsewhere than on the described premises, anywhere in the world;
* * * * * *
(3) but the limit of this Company's liability for unscheduled personal property away from the premises shall be an additional amount of insurance EQUAL TO 10% of the amount specified for Coverage B, but in no event LESS THAN $1,000.00.
* * * * * *
Supplemental Coverages
* * * * * *
1. Automatic Removal: If during the term of this policy, the Named Insured removes unscheduled personal property covered under Coverage B from the premises to another location within the Continental United States or the State of Hawaii, to be occupied as his principal residence, the limit of liability for Coverage B shall apply at each location in the proportion that the value at each location bears to the total value of all such property covered under Coverage B.
Property in transit shall be subject to the limit of liability for unscheduled personal property away from the premises.
This coverage shall apply only for a period of 30 days from the date removal commences and shall then cease. (R. 10a)
Two types of coverage are provided. The main coverage is provided when the property is located on the premises described in the policy. The secondary and lesser amount of coverage is provided when the property is located somewhere other than the described premises. Appellee has paid the $1,500.00 pursuant to the secondary coverage provision.
Appellant argues that this insurance policy should be construed by reference to the reasonable expectations of the insured, relying upon Collister v. Nationwide Life Insurance Company, 479 Pa. 579, 388 A.2d 1346 (1978).
*130 Collister dealt with the question of the existence of a temporary life insurance policy where the insured had submitted his application accompanied by a premium payment. The issue was whether or not a temporary contract of life insurance existed where the insured had failed to comply with a condition precedent to liability under the terms of the policy. Our Supreme Court held in Collister that there was no legitimate reason for the insurer to accept a premium without providing temporary coverage. The insurer in that instance could avoid covering an uninsurable risk by not collecting a premium until after reviewing the risk.
Appellant's reliance upon Collister is misplaced. The issue here is not the existence of the policy, but rather the scope of its coverage.
Furthermore, it is a general rule of fire insurance law that the specified location of the insured property is all important to an insurer in determining not only the rate, but also whether to accept the risk at all. Coverage ordinarily does not extend to casualty occurring at a different location. Morgan Smith Automotive Products, Inc. v. Continental Insurance Company, 418 Pa. 190, 210 A.2d 273 (1965). Thus, the appellee had a legitimate interest in limiting its coverage where the insured's property had been moved from the original premises. This is the only manner in which an insurer can protect itself from the actions of an insured who relocates personal property. Appellant's testimony concerning his attempts to notify appellee of his change of address is not significant in view of the fact that this policy has no provision which automatically extends coverage upon the giving of notice of a change in address.
We therefore find no abuse of discretion on the part of the trial court in granting the motion for compulsory nonsuit. In view of this conclusion, we need not reach the other issue raised by appellant which relates to proof of damages.
Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261677/ | 59 Pa. Commonwealth Ct. 156 (1981)
James G. White, Appellant
v.
Commonwealth of Pennsylvania, Appellee.
No. 808 C.D. 1980.
Commonwealth Court of Pennsylvania.
Argued April 10, 1981.
May 4, 1981.
Argued April 10, 1981, before Judges ROGERS, CRAIG and PALLADINO, sitting as a panel of three.
Frederick O. Brubaker, for appellant.
Harold H. Cramer, Assistant Counsel, with him Ward T. Williams, Chief Counsel, Transportation, and Jay C. Waldman, General Counsel, for appellee.
OPINION BY JUDGE CRAIG, May 4, 1981:
James G. White appeals from an order of the Secretary of Transportation suspending his motor vehicle operating privileges for six months because of *157 his refusal to submit to a breathalyzer test;[1] the Court of Common Pleas of Berks County upheld the order on appeal, but granted a supersedeas pending our decision of the case.
The events leading to appellant's arrest on November 26, 1979 for driving under the influence began when an off-duty police officer observed a green pickup truck driving across his mother-in-law's lawn in Chester County. After notifying the State Police, the officer and his brother-in-law gave chase; they found the truck parked in a driveway three miles down the road. The record indicates that the pursuers did not actually see the appellant driving the vehicle; as they pulled up behind the parked truck, appellant was standing on the porch of the house.
When the arresting officer, a state trooper, arrived shortly thereafter, appellant was leaning against the truck; the trooper testified that he smelled alcohol on appellant's breath, that appellant's eyes were bloodshot and glassy and he was unable to stand on his own. When asked to estimate the time, appellant replied that it was approximately 4:30 in the morning when, in fact, it was 8:00 in the evening. The trooper also observed the appellant get down on his hands and knees, pull up handfuls of grass, and put them in his mouth.[2]
The trooper placed appellant under arrest, took him to the police barracks and prepared to administer the breathalyzer test. Despite the trooper's warning that refusal to submit to the test would result in a six-month license suspension, appellant would not take the test.
*158 Appellant appealed the suspension of his license to the court below, contending that the arresting officer did not have reasonable grounds to believe that he was driving under the influence, and that he had not refused to submit to the breath test.
At that hearing, the Commonwealth called the appellant to the stand to ask if he had been driving the truck at 8:00 p.m. on November 26, 1979. The appellant refused to reply, claiming the privilege against self-incrimination.
Two weeks before the hearing, the criminal charge of driving under the influence had been dismissed when the jury failed to reach a verdict.
Citing that dismissal, the judge ordered appellant to answer the question, statting:
Inasmuch as all the criminal charges have been disposed of and you cannot be charged with any of these events again, you must answer.
Appellant then admitted that he had been driving the vehicle, which was registered in the name of Riverside Auto Sales.
The court dismissed the license suspension appeal, concluding that the trooper had probable cause to believe the appellant had been driving while intoxicated.
Appellant now asks us to sustain his appeal from the license suspension because the court erred in compelling him to testify against himself after he claimed the privilege against self-incrimination.
In order to justify the suspension of a motorist's operating privilege for refusal to submit to a breathalyzer test, it is necessary for the arresting officer to have "reasonable grounds" to believe the person charged with the violation had been driving while intoxicated. 75 Pa. C.S. § 1537(b) (1), Bureau of Traffic Safety v. Schultz, 25 Pa. Commonwealth Ct. 598, 360 A.2d 754 (1976). If a reasonable person in the position *159 of the trooper, viewing the facts and circumstances as they appeared at the trial, could have concluded that the motorist had operated the vehicle while under the influence of alcohol, such reasonable grounds are established. Bruno v. Commonwealth of Pennsylvania, Department of Transportation, 54 Pa. Commonwealth Ct. 353, 422 A.2d 217 (1980). We note that an officer's reasonable belief is not rendered ineffective even if later discovery might disclose that the motorist was not in fact driving. Bureau of Traffic Safety v. Dreisbach, 26 Pa. Commonwealth Ct. 201, 363 A.2d 870 (1976).
In Haklits v. Commonwealth, 44 Pa. Commonwealth Ct. 198, 418 A.2d 772 (1979), the arresting officer found the appellant standing on the sidewalk near a car matching a dispatched description of a vehicle involved in a hit and run accident. Judge (now Justice) WILKINSON, in holding that the officer had reasonable grounds to believe that person had been driving the car, stated: "it is not necessary that any witness see the appellant operating the vehicle." Id. at 200, 418 A.2d at 773. See also Dreisbach, supra; Wilson v. Commonwealth, 53 Pa. Commonwealth Ct. 343, 417 A.2d 867 (1980).
Our review[3] of the record supports the court's conclusion that the trooper had reasonable grounds to believe that appellant was the driver of the truck and that he was doing so while intoxicated. The circumstances surrounding the arrest and the events culminating in it would clearly lead a reasonable person to *160 believe that the appellant had been driving the truck. This conclusion is further supported by the trooper's testimony that, when he arrived on the scene, the off-duty policeman told him that the appellant was the driver of the truck.[4]
Because the Commonwealth met its burden of proving the requisite elements for a Section 1547 license suspension,[5] appellant's refusal to submit to the test justified the six-month loss of privilege.
Accordingly, finding no error below,[6] we affirm.
*161 ORDER
Now, May 4, 1981, the order of the Court of Common Pleas of Berks County, No. 94 February, 1980, dated March 24, 1980, dismissing appellant's appeal, is affirmed.
NOTES
[1] Section 1547(b) (1) of the Vehicle Code, Act of June 17, 1976, P.L. 162, as amended, 75 Pa. C.S. § 1547(b) (1).
[2] Appellant later explained this unusual behavior by stating that he customarily chewed grass when he was out of chewing tobacco.
[3] Where an operator's license has been suspended under 75 Pa. C.S. § 1547(b) (1), our function on review is to determine whether the findings of the lower court are supported by competent evidence, whether an error of law was committed, or whether a manifest abuse of discretion occurred. Bruno v. Commonwealth of Pennsylvania, Department of Transportation, 54 Pa. Commonwealth Ct. 353, 422 A.2d 217 (1980).
[4] This statement was later contradicted by the off-duty policeman's testimony at the criminal trial, where he apparently denied that he saw appellant operating the truck. However, the truth of the statement does not affect its legitimacy as a basis for the trooper's belief.
[5] The Secretary properly suspends a motor vehicle operator's license when the Commonwealth proves that an arresting officer had reasonable grounds to believe the licensee had been driving while intoxicated, that the licensee was arrested and so charged, that the licensee was requested to submit to a breath test and that he refused to submit to such test. Wilson v. Commonwealth, supra.
[6] Moreover, the compulsion of appellant to testify does not appear to warrant disturbance of the court's conclusion. The privilege against self-incrimination embodied in Article I, § 9 of our Constitution is confined to instances where a witness has reasonable cause to apprehend danger of criminal prosecution from a direct answer U.S. ex rel. Yates v. Rundle, 326 F. Supp. 344 (E.D. Pa. 1971). The court's function is to determine whether silence is justified and, if not, to require the witness to answer.
Some confusion appeared to exist as to certain undisclosed summary offenses, also arising out of the incident, with which appellant was charged. Appellant argues that the dismissal of the drunken driving charge did not bar criminal punishment for those summary offenses, but he cites no authority for this proposition.
The Superior Court has held that, where evidence to be presented on a indictable offense applies equally to, and is dispositive of, the summary offense, both may be decided in the same hearing. Commonwealth v. Dawkins, 216 Pa. Super. 198, 264 A.2d 722 (1970).
In the Dawkins case, although the jury returned a not guilty verdict on the indictable offense, the judge found the defendants guilty of the summary offense.
Here, appellant introduced no evidence to indicate any conclusion but that the judge dismissed the summary offenses along with the drunken driving charge at the conclusion of the jury trial. Therefore, we cannot sustain his claim that he still may be subject to punishment for those offenses as the result of his compelled testimony in the civil proceeding.
Thus, the court's ruling here was based on a rational assessment of the status of the criminal charges against the appellant. The dismissal of those charges effectively freed appellant from any threat of further prosecution barred by the proscription against double jeopardy in Article I, § 10. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261609/ | 109 Cal.Rptr.2d 790 (2001)
91 Cal.App.4th 112
Royce FORD, Jr., Petitioner,
v.
The SUPERIOR COURT of Alameda County, Respondent; The People, Real Party in Interest.
No. A094667.
Court of Appeal, First District, Division Four.
July 31, 2001.
As Modified on Denial of Rehearing August 28, 2001.
Review Denied November 14, 2001.[*]
*791 Diane A. Bellas, Oakland, Public Defender, Andrew A. Steckler, San Francisco, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Bill Lockyer, Attorney General, Ann P. Wathen, Deputy Attorney General, for Real Party in Interest.
*792 KAY, J.
Petitioner Royce Ford, Jr., is charged with the murder of April Matlock. (Pen. Code, § 187.) The information alleges that petitioner personally used a deadly weapon (Pen.Code, § 12022, subd. (b)) and inflicted great bodily injury (Pen.Code, § 1203.075) in committing the offense, and that he had previously been convicted of welfare fraud (Welf. & InstCode, § 10980, subd. (c)(2)).
Petitioner gave a taped statement to the police confessing to the murder. He moved to suppress the confession on the ground that it was the fruit of an illegal arrest, and to suppress physical evidence obtained as a result of the arrest. (Pen. Code, § 1538.5.) The motion was denied.
Petitioner has filed a petition for a writ of mandate and/or prohibition directing that the motion to suppress be granted, and that the information be dismissed. We have issued an order to show cause as to the ruling on the suppression motion, along with a stay of proceedings in the case, and have heard oral argument on the matter. We conclude that suppression of the evidence is not required, and therefore deny the petition for writ of mandate and/or prohibition.
I.
Petitioner called 911 in Oakland at 3:23 p.m. on November 24, 1999, identified himself, and reported that someone had broken into a house on Hayes Street. He said that one of the doors had been broken off in the bedroom, and that the back window had been opened.
Petitioner placed a second 911 call at 3:37 p.m., identified himself again, and said that he had called a few minutes ago about a break-in. He said that he had gone into the house and "there's blood all over" the second bedroom in the middle of the house. "How long have you been gone from there?" the operator asked. "How long have I been gone?" petitioner responded. "Um-hmm," said the operator. "I was gone all day," said petitioner.
In response to questions from the operator, petitioner said that his sister, her son, her daughter April, and his nephew David lived at the house. He said that his sister had gone into the house, told him she saw blood, and left crying. He said that he did not know where April was, but added, "I think that's her in the room. I think. I don't know." "So you didn't actually go all the way in the room?" the operator asked. "No," petitioner answered, "I didn't, un, because she said cuz' the blood was there. So I just looked. The blood every where."[1] The operator confirmed with petitioner that April was his niece, and was the only one in the household who was "unaccounted for." The operator asked whether April was having problems with anyone or was suicidal; petitioner said he did not know.
Officer Bellusa testified that petitioner was standing near the doorway of the house when Bellusa arrived there around 3:40 p.m. Petitioner chained the pit bull dog that was roaming around the yard, and said that he had not looked around the house. Bellusa asked petitioner to follow him into the house and point out things that were missing. Bellusa drew his gun and began walking through the house. He passed through the living room and saw that the door to the first bedroom off to the right had been broken down. It appeared *793 that someone had rifled through the bedroom. Drawers had been removed from cabinets, and clothes and papers were scattered. When Bellusa came out of the bedroom he noticed that appellant had stayed behind in the living room, pacing and rubbing his head.
Bellusa walked into the kitchen, and then to the second bedroom, where he saw blood spattered on the wall. The room had a window, but Bellusa recalled that the curtains were only slightly parted and that it was dark inside. He looked down and saw a woman lying on her back on a mattress. She was covered by a sheet up to her neck. Her head was black and blue and part of it had been "caved-in." She appeared to be dead.
Bellusa called for assistance as he backed out of the house. When he got to the living room he put his gun away, turned to petitioner, and asked if he would mind going outside with him. He did not tell petitioner what he had seen. Petitioner "walked out on the steps with [Bellusa] real quick" and asked if anything was wrong. Bellusa said, "no, everything's fine."
Bellusa asked petitioner if he would mind sitting in his patrol car. Bellusa testified that petitioner was very cooperative and "just jumped right in" the back seat of the patrol car, where he was locked in. About ten minutes later, Bellusa asked petitioner if he would mind going to the police station, where there were people "trained in these type of things that would like to talk to you." Petitioner said that would be fine, and Bellusa drove him to the station. Bellusa testified that petitioner was not handcuffed or under arrest, and remained cooperative at the station.
Bellusa took petitioner into interview room 202 in the homicide department of the criminal investigation division at 5:15 p.m., and told him to knock on the door if he wanted water or needed to use the bathroom. Bellusa testified that "[y]ou could tell at that point he was a little down, but he justhe said okay, that's fine." Bellusa said that petitioner's demeanor changed when they went into the criminal investigation division, and he "kind of started to look a little pale at that time." The lead investigator in the case, Sergeant Joyner, testified that petitioner could have seen the words "homicide section" as he was being led to the interview room. Joyner said that the room in which petitioner was placed was eight-by-eight feet, with a table, three chairs, no window, and one door. The door locked automatically and could not be opened from the inside without a key.
Joyner arrived at the house around 5:00 p.m., observed that it was surrounded by a six-foot-high chain link fence, and saw the van in the backyard where petitioner lived. The front and rear doors to the house had security gates and appeared undisturbed. Neighbors did not see or hear anything happen at the house that day. However, there was a bucket turned upside down outside a window to a back bedroom, the screen to the window had been pulled off, and the window was open four-to-six inches and appeared to have been pried; Joyner could not tell if the pry marks were fresh.
In the bedroom with the broken-down door, jewelry had been left on top of a dresser, and drawers were open but their contents were undisturbed. In the bedroom with the open window, clothes had been taken down from a rod and piled on the bed, but a computer, computer disks and computer games were undisturbed. There were pry marks on the lock of the door to that bedroom. In the bedroom where the body of April Matlock was found, the mattress was soaked in blood, and there was blood on all four walls. *794 Matlock was wearing a short mini skirt which was pulled up exposing her vaginal area, and there was fluid between her legs. She had sustained severe blunt trauma to the head.
Joyner spoke with Matlock's grandfather, Royce Ford, Sr., at the scene. Mr. Ford told Joyner that his daughter, Julia Ford, had come to his place of business "hysterical." Joyner returned to the station around 8:00 p.m. to interview Julia and other residents of the house. Records showed that Joyner interviewed Julia from 8:20 to 9:24 p.m.; Charles King, Julia's son and Matlock's brother, from 9:43 to 10:06 p.m.; and David Dogens, King's cousin, from 10:35 to 11:09 p.m. All three signed forms consenting to a search of the house.
Joyner testified that nothing Julia Ford, King or Dogens said cast any suspicion on petitioner. King said that Matlock was working as a prostitute and had been using illegal drugs, including heroin. King said that Matlock had an argument with some people on the porch of the house the night before she was killed, and that those people had threatened her with bodily harm. King and Dogens gave Joyner a description of the people who had threatened Matlock.
Julia Ford told Joyner that she had never heard petitioner even raise his voice to Matlock, although Matlock had called petitioner a "looser (sic) or a smoker or something along those lines." Julia said that she and King left the house early in the morning, and always locked the gate so no one could come into the yard. She said that her dog had bitten mailmen and neighbors who tried to enter the yard. She said that when she returned to the house that day, she noticed that her bedroom door had been kicked open and called to petitioner. When she and petitioner went back in the house, she told him to call the police because there was blood in Matlock's bedroom. She said she saw blood when she looked in Matlock's bedroom, but not a body.
Joyner began questioning petitioner at 12:07 a.m. By that point, in addition to conducting the other interviews, Joyner had listened to tapes of petitioner's 911 calls, and reviewed the notes he had taken at the scene, as well as the reports of Bellusa and another officer. Interviewers want "to have as much knowledge as [they] possibly can," Joyner explained, so as to "operate from a position of strength." Joyner had investigated petitioner's criminal record,[2] and spoken with Bellusa, as well as Officers Petty and Yoell, about petitioner's demeanor. Bellusa told Joyner several times, "Something's not right with that guy. I just got a bad feeling about him and he just wasn't acting right."
Petitioner had been in room 202 for almost seven hours before the interrogation started. At 7:31 p.m., Bellusa observed petitioner through the peephole to the room. Petitioner was bent over a table with his head down in his hands, and it sounded like he was crying. At 7:47 p.m., petitioner was asked by another officer to consent to a search of the house, and provided that consent. At 9:41 p.m., petitioner asked to use the restroom; Joyner took him to the bathroom and for a drink of water. Joyner said he told petitioner *795 that he was talking to other family members at the station. Joyner testified that "I apologized to him and told him I was sorry it was taking so long, but we had to talk to other individuals before we got to him and he said he understood."[3] Petitioner asked how his sister Julia was doing; Joyner told him that she was crying, and had gone to Royce Ford, Sr.'s home.
Joyner did not tell petitioner that Matlock was dead, or suggest that he was suspect in her murder, until later when he began questioning him. Joyner said that successful interrogations depended on the assertion of control as well as the building of rapport, and acknowledged that he took petitioner to the bathroom to show him that he was in charge. Joyner brought petitioner back to room 202 and told him to knock if he needed anything.
Petitioner was moved from room 202 to an identical room, 201, for his interrogation. Joyner said they moved only because of petitioner's flatulence; he denied that there was urine on the floor of room 202.
Petitioner was interrogated by Sergeants Joyner and Longmire. Joyner read petitioner his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) five minutes into the interview after a few preliminary questions on matters such as date of birth, living arrangements, and work history. Petitioner signed a form confirming that he understood his rights, and said, "Yeah, I can answer."
Petitioner was questioned for about an hour about the events of the day. Petitioner said that he had not seen Matlock that day, and "emphatically" denied going into the house before the time of the 911 calls. Petitioner said he went back into the house after the first 911 call because his sister told him she had seen blood. He said he saw blood, but not Matlock's body.
Toward the end of the hour, petitioner was asked whether he had any type of sexual contact with Matlock, and was "really adamant" that no such activity had occurred. Joyner told petitioner that one way to prove that he was being truthful would be to give a blood specimen at a hospital, and petitioner agreed to do so. Petitioner signed a consent at 1:04 a.m. to have his blood examined, and was taken by Joyner and Longmire to Highland Hospital to give blood. Joyner drove the unmarked car, Longmire sat in the passenger seat, and petitioner sat in the back seat. Petitioner was not handcuffed, and the doors to the car were not locked. On the way to the hospital, they went to a Jack-In-The-Box drive-through and Joyner bought dinner for the three of them. Joyner and Longmire talked to petitioner about sports and relationships with women, to try to build a rapport with him. Joyner testified that petitioner was "totally cooperative" while giving blood at the hospital. Joyner thought petitioner "probably felt disrespected" when it was suggested that he might have sexually assaulted his niece, and was "anxious" to prove that his denial was honest.
When they returned to the station at 2:22 a.m., Joyner and Longmire put petitioner back in the interview room and then conferred for 15 minutes about their strategy for the next stage of the interrogation. *796 By this time Joyner strongly suspected that petitioner had gone into the house and murdered Matlock.
Joyner testified that his suspicions began with the 911 calls. Joyner thought it inconsistent that petitioner did not mention blood in the first 911 call, and unusual that he did not request medical aid in either call. Joyner was struck by the exchange in the second 911 call when petitioner was asked how long he had been gone from the house, and responded with what Joyner regarded as a "stalling question" before stating that he had been gone all day. Joyner thought that petitioner might have been trying to establish the foundation for an alibi with this statement. Joyner also noticed the "nonchalant way that [petitioner] talked to the dispatcher." In Joyner's view, petitioner did not "display[ ] the correct emotions" in the 911 calls.
This latter observation coincided with those of officers on the scene, who "for whatever reason, maybe from [petitioner's] demeanor, thought something wasn't right with him." As for petitioner's report of a break-in, it appeared that property in the house had been rifled but that nothing had been taken. Any stranger would have had to negotiate the chain link fence around the house, as well as the locked gates to the property. Also, King and Julia Ford said that the pit bull on the premises would have been "raised up" if any intruder had entered the yard, but the neighbors heard nothing at all at the house that day.
Joyner was also suspicious of petitioner's claim that he had not been in the house that day, because "other family members had informed me it was a common practice for [petitioner] to wake up in the morning and come into the house, brush his teeth, use the rest room and kind of freshen up, things of that nature." Joyner added: "Whenever we approached that subject, [petitioner] was back pedaling and made up excuses why he hadn't any reason to go into the house that particular morning, as well as without [my] even asking, giving information that he wasn't around, type answers."
Based on these suspicions, Joyner resolved to "turn[ ] on the interview techniques to see ... what might turn up." Joyner taught and used methods described in the police department's Advanced Interviewing Techniques manual. The officers decided to emphasize two themes in their questioning: the victim "can rub people the wrong way" theme; and the "there [are] two sides to every story, let's hear your side" theme. This was the technique of giving the suspect two guilty options to explain what happened. In addition to the "rapport and control" and "guilty options" techniques, the officers began to employ "anchoring," the "highly manipulative tool" of touching petitioner in a positive or negative manner depending on whether they thought he was being truthful, and "invasion of space," which meant moving to within a foot of petitioner when he appeared to be lying, and moving back when he appeared to be telling the truth.
When the questioning resumed at 2:39 a.m., Joyner began by confronting petitioner with inconsistencies in his statements. Joyner finally got petitioner to admit that he had gone into the house on the day of the murder by using the "nosy neighbor ploy": suggesting that a neighbor might have seen him in the house, when in fact no neighbor had reported that observation. This admission, in Joyner's view, was the turning point in the interrogation.
At some point petitioner said, "I don't like the situation," and Joyner said that when he heard this, he "knew" petitioner had murdered Matlock. Joyner explained: "It wasn't just that simple phrase. It wasn't just him saying that statement in *797 any different tone or anything like that. [¶] It was the totality of the whole investigation, everything put together, his actions verbally and nonverbally. Him saying things that basically a normal person would be sad over, [petitioner] didn't exhibit any type of sadness or for lack of a better word emotion. And when he said that, I just got that feeling, that this is it and he's the one who did it."
Petitioner said that Matlock approached him when he went into the house and was verbally abusive toward him. Joyner testified that this conduct on Matlock's part was consistent with the descriptions other family members had given of her. Petitioner said that Matlock threw something at him and physically attacked him, and that in response he hit her with a hammer. He initially said that he did not remember how many times, or where, he hit Matlock. He eventually admitted hitting Matlock several times in the head. He also admitted kicking in the door to the first bedroom and breaking into the back bedroom.
Petitioner provided a tape-recorded statement at 3:50 a.m. Petitioner confirmed at the outset of the statement that he had been informed of his Miranda rights and agreed to answer questions. He said that when he got up in the morning the day before and went into the house to clean up, Matlock started screaming and cussing at him. She threw things at him and then started hitting him; he did not know why she was upset. He hit her with his hand but she would not quit, so he hit her with a hammer he had brought in to do some work on the porch. He struck her with a motion "like I was throwin' a fastball overhand."[4] He first said that he did not know how many times he hit her, but in response to further questions said that he hit her once in the chest, and then four times in the face. When she stopped moving, he put the hammer away in a toolbox underneath the back stairs to the house.
Petitioner said he kicked in the door to his sister's room because he was scared and did not know what to do. He was asked if he was trying to make it appear that there had been a burglary at the house, and he said, "Yeah, I think I was tryin' to do that." In the back bedroom, he forced the door open, opened the window and pushed out the screen to make it look like someone had left through the window.
Matlock had fallen onto her bed. Petitioner said he put a blanket over her and a pillow over her head and left her there on her stomach. He did not go back into the house until his sister came home. He said he thought Matlock had left the house by that point.
Petitioner said that he smoked a little crack after his fight with Matlock, but that he had been sober during their encounter, and that he was sober when he gave his statement. He confirmed that he had given his statement freely, that he had been fed, and that the officers had been cordial to him. Petitioner was placed under arrest after providing the statement.
Joyner said he thought when he arrived at the crime scene that he had "reasonable suspicion for detention" of petitioner, but "[i]nstead of going that route, as far as arresting him under probable cause or detaining him, I appealed to his goodness and heart and asked if he would cooperate and come down to the police station and asked him to cooperate and take [sic] a statement, which he agreed to do."[5] "At *798 that point," Joyner continued, he was not "worrying about if [petitioner] was under arrest or probable cause wasn't even anything of an issue to me due to the fact that [petitioner] agreed to come to the police department."
Joyner testified that, at various points in the ensuing investigation, he believed that he had grounds for suspicion that petitioner was involved in the crime, as opposed to probable cause to arrest him. When Joyner was asked at the hearing, "In your mind, what time was [petitioner] arrested?" he replied, "I can't really answer that. I was in the process of processing all the information, gathering witness statements and looking at all the inconsistencies. Obviously, when [petitioner] ended up telling me he was responsible for hitting Ms. Matlock in the head with a hammer, obviously in my mind he was under arrest."
Joyner said that petitioner never asked to leave the station, and was never told before he furnished the statement that he was not free to leave. Joyner testified that petitioner was in fact never free to "just stand up and walk out," but explained that he would have had to decide whether to keep petitioner at the station if petitioner had ever asked to leave.
II.
The trial court found that petitioner was under "de facto arrest" when the police began questioning him shortly after midnight on November 25. At that point, the court concluded, the police had sufficient cause to detain petitioner, but not probable cause to arrest him. The court observed that Joyner had essentially admitted the lack of probable cause. The court then applied the standards set forth in Brown v. Illinois (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, for admission of a confession obtained after an illegal arrest. "Those factors are: [1] the giving of a Miranda warning, [2] the temporal proximity of the arrest and confession, [3] the presence of intervening circumstances and [4] the purpose and flagrancy of the official misconduct." (People v. Gonzalez (1998) 64 Cal.App.4th 432, 442, 75 Cal.Rptr.2d 272.) The court found that neither the passage of time nor any intervening circumstances broke "the causal chain" (Brown v. Illinois, supra, at p. 602, 95 S.Ct. 2254) between the arrest and the confession. However, the court declined to suppress the confession because a Miranda warning had been given, and the court found no flagrant police misconduct.
III.
The threshold issue is whether petitioner was "seized" before he made his incriminating statements. The People argue that the confession was preceded by a consensual encounter between petitioner and the police. The court below implicitly rejected this argument when it concluded that petitioner was under arrest by the time his interrogation began.
"Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual's liberty. [Citations.] Consensual encounters do not trigger Fourth Amendment scrutiny. [Citations.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime." (In re Manuel G. (1997) 16 Cal.4th 805, 821, 66 Cal.Rptr.2d 701, 941 P.2d 880.)
"Although there is no `brightline' distinction between a consensual encounter *799 and a detention ... `the police can be said to have seized an individual "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."'" (People v. Venn (1990) 220 Cal.App.3d 551, 556, 269 Cal.Rptr. 573; see also Florida v. Bostick (1991) 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 ["`reasonable person' test presupposes an innocent person"].) "`The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.'" (People v. Verin, supra, at p. 556, 269 Cal.Rptr. 573.) "The officer's uncommunicated state of mind and the individual citizen's subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred." (In re Manuel G, supra, 16 Cal.4th at p. 821, 66 Cal.Rptr.2d 701, 941 P.2d 880.)
The standards for appellate review of suppression motion rulings are well settled. (People v. Coulombe (2000) 86 Cal.App.4th 52, 55-56, 102 Cal.Rptr.2d 798.) "We defer to the trial court's factual findings, express or implied, where supported by substantial evidence." (People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729.) However, "`it is "the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness."'" (People v. Laewen (1983) 35 Cal.3d 117, 123, 196 Cal.Rptr. 846, 672 P.2d 436.)
These settled standards have not been uniformly applied in distinguishing between seizures and consensual encounters. (Compare, e.g., In re Gilbert R. (1994) 25 Cal.App.4th 1121, 1126, 30 Cal.Rptr.2d 676 [treating issue as one of fact]; People v. Meredith (1992) 11 Cal.App.4th 1548, 1561, fn. 8, 15 Cal.Rptr.2d 285 [same]; People v. Shields (1988) 205 Cal.App.3d 1065, 1073, 252 Cal.Rptr. 849 [same]; with People v. Franklin (1987) 192 Cal.App.3d 935, 940, 237 Cal.Rptr. 840 [treating issue as one of law]; People v. Bailey (1985) 176 Cal. App.3d 402, 406, 222 Cal.Rptr. 235 [same]; see also U.S. v. Valdiosera-Godinez (5th Cir.1991) 932 F.2d 1093, 1098, fn. 1 [federal circuits are split on the point].) The issue was treated as one of fact in In re Manuel G., supra, 16 Cal.4th at pp. 822, 823, 825, 66 Cal.Rptr.2d 701, 941 P.2d 880; in that case, however, the issue was not presented in connection with a motion to suppress. The minor in Manuel G. was found to have threatened a peace officer to deter the performance of his duties. (Pen.Code, § 69.) The minor argued that he was illegally detained by the officer when he made the threats, but the court held that substantial evidence supported an implied finding that the encounter was consensual. (In re Manuel G, supra, at p. 823, 66 Cal.Rptr.2d 701, 941 P.2d 880.) In so concluding, the court applied the rules of appellate review for judgments (id. at p. 822, 66 Cal.Rptr.2d 701, 941 P.2d 880), rather than those for suppression rulings.
In any event, even if the seizure issue were ordinarily one of fact, we would be called upon to exercise our independent judgment in this instance because the evidence on petitioner's motion was undisputed. (People v. Aldridge (1984) 35 Cal.3d 473, 477, 198 Cal.Rptr. 538, 674 P.2d 240 [where evidence is undisputed "there is no factual issue entitled to a substantial evidence standard of review"]; People v. Leyba (1981) 29 Cal.3d 591, 597, fn. 1, 174 Cal.Rptr. 867, 629 P.2d 961; People v. Verin, supra, 220 Cal.App.3d at p. 555, 269 Cal.Rptr. 573; People v. Capps (1989) 215 Cal.App.3d 1112, 1119, 263 Cal.Rptr. 791; People v. Perez (1989) 211 Cal.App.3d 1492, 1494, 260 Cal.Rptr. 172.) There is *800 no basis to suspect that the trial court may have disbelieved any of the officers' uncontradicted testimony about how they treated petitioner, or what petitioner said or did. To the contrary, the court found that the police were, as they said, polite to petitioner, not threatening or intimidating, and it "was at least clear to [the court] throughout the testimony that was presented ... that [petitioner] had cooperated the whole time with the police."
The Fourth Amendment does not prevent a person from agreeing to accompany officers to the police station and remain there for interrogation. (See In re Gilbert R., supra, 25 Cal.App.4th at pp. 1125-1126, 30 Cal.Rptr.2d 676 [no seizure where minor agreed to go to station for questioning]; Craig v. Singletary (11th Cir.1997) 127 F.3d 1030, 1032-1034, 1040-1042 [no seizure where defendant went with police to station and stayed there five hours before probable cause developed for his arrest].) "[A] suspect's appearance at the station for some period of time might be by consent and thus no arrest nor any type of seizure whatsoever." (3 LaFave, Search and Seizure (3d ed.1996) [hereafter LaFave] § 5.1(a), p. 4.) The question is whether the consent was voluntary. (Id., at pp. 4-5.)
The issue has been presented in at least two California cases. In In re Gilbert R., supra, 25 Cal.App.4th 1121, 30 Cal.Rptr.2d 676, the police went to the home of a minor to investigate an assault. They obtained the minor's permission and that of his mother to take the minor to the police station for questioning. The minor confessed at the station after being advised of his constitutional rights. The confession was admissible because "substantial evidence supported the implied finding of the juvenile court that when all of the circumstances are viewed objectively, a reasonable person would have believed that he or she did not have to accompany the detectives to the [ ] station." (Id. at p. 1126, 30 Cal.Rptr.2d 676.)
In People v. Boyer (1989) 48 Cal.3d 247, 267, 256 Cal.Rptr. 96, 768 P.2d 610, however, the court rejected a claim that an encounter between the defendant and the police "was consensual, and thus not a detention," and concluded that the defendant's interrogation occurred "during an illegal, prolonged detention amounting to arrest."[6] Four officers went to the defendant's house one evening to seek what they called a "voluntary interview" about his possible involvement in two homicides. (Boyer at p. 263, 256 Cal.Rptr. 96, 768 P.2d 610.) Two officers knocked on the front door while the other two covered the rear of the house; the defendant was stopped when he emerged from the back door after the knock. The defendant was asked to step into the driveway and told that "two gentlemen in front would like to speak to him." (Ibid.) The officers may have held the defendant as they walked him to the front of the house. The defendant was then asked if he would "voluntarily come" to the station for an interview, and agreed to do so. (Id. at p. 264, 256 Cal.Rptr. 96, 768 P.2d 610.)
The court agreed with the defendant that "many of the formal indicia of detention or arrest were present during the initial encounter with the officers.... The manner in which the police arrived at defendant's home, accosted him, and secured his `consent' to accompany them suggested they did not intend to take `no' for an answer." (People v. Boyer, supra, 48 Cal.3d at pp. 267-268, 256 Cal.Rptr. 96, 768 P.2d 610.) And "[whatever defendant's status before arriving at the [ ] station ... the situation quickly ripened into a full-blown arrest inside the station house." (Id. at p. 268, 256 Cal.Rptr. 96, *801 768 P.2d 610.) At the station, the defendant was confronted by two officers in a small interrogation room, informed of his Miranda rights, and subjected to over an hour of "directly accusatory questioning" while the officers evaded his questions about whether he was under arrest. (Ibid.)
The situation in petitioner's case is distinguishable from those in Gilbert R. and Boyer. In Gilbert R., it was dispositive that the initial agreement to go to the station was voluntary. Insofar as it appears from the opinion, the interrogation began as soon as the minor arrived. The opinion noted that at one point, after the minor said he was hungry and the officers went to buy him breakfast, he was left in an office with the door open, and told to direct any questions to investigators in a nearby room. The court did not need to address whether this unremarkable development caused the encounter to "`lose[ ] its consensual nature.'" (In re Gilbert R., supra, 25 Cal.App.4th at p. 1125, 30 Cal.Rptr.2d 676.) Unlike the minor in Gilbert R., petitioner remained at the station for an extended period before he was questioned. Thus, we must consider whether, even if petitioner's initial consent to accompany the police was voluntary, the encounter remained consensual at the station. We note also that, unlike petitioner, the suspects in Gilbert R. and Boyer did not initiate contact with the police.[7]Boyer is further distinguished by the coercive manner in which the police obtained the defendant's consent to go to the station, and here, unlike Boyer, the police were never evasive about petitioner's custodial status (he never asked).
The unique facts of petitioner's case must therefore be examined in light of the governing general principles. It is "[o]nly when the [police], by means of physical force or show of authority, in some manner restraint ] the individual's liberty [that] a seizure occur[s]." (In re Manuel G., supra, 16 Cal.4th at p. 821, 66 Cal.Rptr.2d 701, 941 P.2d 880.) Other factors include, on one hand, whether "the police specifically advised the suspect that he was not under arrest or that he was free to leave if he wished" (3 LaFave, supra, § 5.1(a), p. 5), and, on the other hand, whether "the police put the matter to the suspect only in terms of a request, or did not in any way indicate to him that he was a suspect" (id. at p. 6). "Courts also take into account facts tending to show that the suspect `deliberately chose a stance of eager cooperation in the hopes of persuading the police of his innocence.'" (Id. at p. 8.)
According to undisputed evidence, petitioner exhibited a desire to cooperate at regular intervals throughout the entire time before he confessed. This cooperation began before petitioner arrived at the station: around 3:30 p.m. he initiated contact with the police through the 911 calls; at 3:40 p.m. he agreed to follow the responding officer into the house to point out missing items; shortly thereafter he agreed to leave the house, and wait in the officer's patrol car; about 10 minutes later he agreed to accompany the officer to the station. This cooperation continued after petitioner arrived at the station: at 5:15 p.m. he said "okay, that's fine" when he was put in the locked room and told to knock if he needed anything; at 7:47 p.m. he consented to a search of the house; at 9:41 p.m. he said he "understood" when *802 the sergeant apologized for the time it was taking to interview other witnesses. This cooperation continued when petitioner was interrogated: at 12:07 a.m. he waived his Miranda rights and said he could answer questions; at 1:04 a.m. he agreed to provide a blood specimen; and finally, before the questioning resumed at 2:39 a.m., he accompanied the police to a hospital, where he remained "totally cooperative" while giving blood and seemed "anxious" to prove his innocence.
It thus appears that petitioner, from the moment he summoned the police to the scene, "`deliberately chose a stance of eager cooperation in the hopes of persuading the police of his innocence.'" (3 LaFave, supra, § 5.1(a), p. 8.) The record establishes that petitioner was unfailingly cooperative and remained eager to prove his veracity even after the interrogation began. In these circumstances the police could reasonably rely on petitioner's apparent consent. (See id., supra, § 8.1(b), pp. 609-610.)
Other relevant considerations do not dictate a contrary conclusion. Petitioner's movement was impeded in the back seat of the police car on the way to the station and in the locked room at the station, but he was not restrained by any physical force or show of authority. He was never handcuffed, and was left in the unlocked backseat of the police car on the trip to the hospital. Petitioner's cooperation was requested not demanded, and he was not told that he was a suspect before he was questioned. Although petitioner was never told in so many words that he was not under arrest or that he was free to leave, that advice was implicit in the sergeant's apology for the time it was taking to interview other witnesses. Petitioner was advised of his Miranda rights before he was questioned about the crime.
Under the totality of the circumstances, we conclude that petitioner was not seized before he confessed. Accordingly, petitioner's claim that his confession was the fruit of an illegal arrest is without merit, and the court was correct to deny his motion to suppress.
IV.
The petition for writ of mandate and/or prohibition is denied, and the order staying further proceedings is vacated.
REARDON, Acting P.J., and SEPULVEDA, J., concur.
NOTES
[*] Kennard, J., dissented.
[1] A tape recording of the 911 calls was introduced into evidence and played at the hearing on the motion to suppress; a transcript of the calls was also admitted into evidence. The quotations herein are from the transcript, which appears on the whole to be very accurate, but we have listened to the tape itself.
[2] Records indicating that petitioner was on felony probation, with a search condition, were admitted into evidence at the suppression hearing over petitioner's objections on hearsay, relevance, and foundational grounds. The search condition stated that petitioner "shall submit his person, real property, place of residence, vehicle and/or other belongings to search and seizure at any time of the day or night, with or without a search warrant by a probation officer or law enforcement officer."
[3] According to police records, Dogens and King waited at the station over five hours and three hours, respectively, before they were interviewed. Joyner explained that witnesses are interviewed separately to prevent them from being influenced by each others' statements. Joyner said that he interviewed Julia Ford first because she was crying and traumatized. He said that he interviewed Dogens and King before petitioner because he understood that they were not at the home when the crime occurred, and their interviews would likely be shorter than that of petitioner.
[4] A tape recording of the statement was introduced into evidence and played at the hearing on the motion to suppress; a transcript of the statement was also admitted into evidence. The quotations herein are from the transcript, but we have listened to the tape itself.
[5] In view of Joyner's other testimony that he did not speak with petitioner at the crime scene, it is apparent that these requests were conveyed to petitioner through Officer Bellusa.
[6] Boyer was disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830 fn. 1, 38 Cal.Rptr.2d 394, 889 P.2d 588.
[7] This fact, and the continuing indicia of consent from petitioner, also distinguish the situations in Green v. Superior Court (1985) 40 Cal.3d 126, 219 Cal.Rptr. 186, 707 P.2d 248, and People v. Aguilera (1996) 51 Cal.App.4th 1151, 59 Cal.Rptr.2d 587, cases cited in the petition for rehearing that involved Miranda issues. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261621/ | 290 Md. 245 (1981)
428 A.2d 1224
JAMES ERNEST STANTON
v.
STATE OF MARYLAND
[No. 72, September Term, 1980.]
Court of Appeals of Maryland.
Decided May 4, 1981.
The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
John W. Sause, Jr., District Public Defender, for appellant.
Submitted on brief by Stephen H. Sachs, Attorney General, and Stephen Rosenbaum, Assistant Attorney General, for appellee.
MURPHY, C.J., delivered the opinion of the Court.
We granted certiorari in this case to consider whether, upon a criminal conviction in a circuit court, the trial judge *246 may legally impose a sentence to run consecutively to an earlier imposed District Court sentence in an unrelated case which is then pending de novo review in the circuit court.
On April 30, 1979, the appellant pleaded guilty in the Circuit Court for Cecil County to forgery. Judge H. Kenneth Mackey accepted the guilty plea and deferred sentence pending receipt of a presentence report. On July 11, 1979, prior to imposition of sentence for the forgery offense, the appellant was convicted of assault in the District Court of Maryland and was sentenced to five years' imprisonment. He appealed that conviction to the circuit court, pursuant to Maryland Code (1974, 1980 Repl. Vol.), § 12-401 of the Courts and Judicial Proceedings Article, thereby entitling him to be tried de novo.[1] On August 16, 1979, prior to disposition of the de novo appeal, Judge Mackey sentenced the appellant to a five-year term for the forgery conviction to run consecutively to the five-year sentence imposed on the assault charge in the District Court. The consecutive sentence was imposed over appellant's objection that the entry of the de novo appeal of the District Court conviction nullified the District Court judgment and consequently no sentence then existed to which the circuit court sentence could consecutively run.
On appeal, the Court of Special Appeals, in an opinion by Judge Melvin, said:
"While the execution of a District Court sentence may or may not be stayed when an appeal has been taken, an appeal does not alter the fact that it has been imposed and is still in existence. It remains in existence unless duly changed by the sentencing judge or until such time as the defendant, upon his de novo trial, is either acquitted or found guilty. If he is found guilty at the de novo trial and is sentenced anew, the District Court sentence then no longer exists.
*247 * * *
"In the case at bar, at the moment the circuit court imposed its sentence, the District Court sentence was in existence. It was therefore not improper for the sentencing judge to make his sentence consecutive to that then existent sentence."
Stanton v. State, 45 Md. App. 662, 665-66, 415 A.2d 305 (1980) (emphasis in original, footnotes omitted).
The Court of Special Appeals pointed out that even though appellant had appealed the assault conviction, and would be afforded a trial de novo in the circuit court, nevertheless he was incarcerated on a commitment pursuant to the District Court sentence.[2] The court observed that the record did not disclose the disposition of the de novo appeal of the assault charge but that any sentence imposed by the circuit court would be a new sentence "and would, as of the date of imposition of the new sentence, completely displace the original District Court sentence"; that the District Court sentence "would then be non-existent just as if it had completely expired"; and that the result would be that the circuit court sentence for the forgery offense would then be subject to immediate execution and would not await the expiration of the new sentence that might have been imposed after the de novo hearing on the assault charge. 45 Md. App. at 666 (n. 2). The court affirmed the judgment of the Circuit Court for Cecil County.
Before us the appellant agrees that a guilty finding at his de novo trial will result in a circuit court sentence which completely displaces the earlier District Court sentence. He restates his position: because the District Court judgment "was clinically if not legally dead" at the time of Judge Mackey's sentence on the forgery charge, and because a new circuit court sentence on the assault conviction was *248 inevitable, it was impossible for Judge Mackey's sentence to run consecutively to the defunct District Court sentence. Appellant therefore urges that the judgment of the Court of Special Appeals be reversed and the case remanded with instructions that Judge Mackey's five-year consecutive sentence be reversed and he be instructed to enter a sentence "without reference to the de novo appeal heard in the Circuit Court."
The Attorney General, referring to the case as an "academic legal battle," states that the Court of Special Appeals granted appellant essentially the relief he requested, namely, that the sentence for the forgery offense would be served without regard to the sentence imposed after the de novo appeal.
In Hardy v. State, 279 Md. 489, 369 A.2d 1043 (1977), we considered whether a defendant has a right to a jury trial in the circuit court upon a de novo appeal from a District Court criminal conviction. In the course of the opinion in that case, we observed that "de novo" means "afresh" or "anew." We said that the statute authorizing de novo criminal appeals from District Court judgments, § 12-401 of the Courts Article, requires that the appeal "be treated as if it were entirely an original proceeding, thus including a right to a trial by jury." Id. at 492-93. In response to a contention advanced by the State that the right of de novo appeal applied only to the necessity to present the evidence a second time, we said that the suggested construction of the statutory term "de novo" was too narrow. It was in this context that we said:
"This Court has consistently treated de novo appeals as wholly original proceedings, that is, as if no judgment had been entered in the lower court." Id. at 493.
Nothing in Hardy suggests, even remotely, that the mere entry or perfecting of a de novo appeal under § 12-401 of the Courts Article nullifies the District Court sentence prior to adjudication by the circuit court of the defendant's appeal. Indeed, M.D.R. 776 a (see n. 2, supra) contemplates that the *249 defendant may be incarcerated under the District Court sentence pending determination of the de novo appeal unless he is released by the district judge.
In a similar vein, Briggs v. State, 289 Md. 23, 421 A.2d 1369 (1980), indicates that a District Court judgment in a criminal case is not extinguished for all purposes by the entry of a de novo appeal to the circuit court. In that case, the appellant was convicted of assault in the District Court of Maryland and appealed. At his de novo trial, he received a more severe sentence because subsequent to his trial in the District Court, but prior to his de novo trial, he was convicted of several other assaults in the circuit court. These assaults had actually occurred prior to the assault offense then under consideration. Briggs had been originally convicted of these offenses in the District Court and had appealed. Although we were faced only with the issue of whether the circuit court judge improperly increased Briggs' sentence, we noted at 289 Md. 34, n. 11, 421 A.2d 1376:
"In Henry [v. State, 273 Md. 131, 328 A.2d 293 (1974)], we recognized that whereas bald accusations of prior criminal conduct are not to be considered by a sentencing judge, reliable evidence concerning the details or surrounding circumstances of such conduct ordinarily may be taken into account; while there may be exceptions, this is generally permitted even if the defendant at the time of sentencing remained untried for the prior conduct or had been acquitted of the charges involving that conduct. Id. at 147-48, 328 A.2d at 303. Manifestly, this would encompass conduct resulting in a conviction from which, at the time of sentencing in the case involving later criminal conduct, there was an appeal pending from a conviction involving earlier misconduct." (Emphasis supplied.)
Briggs indicates that an appeal of a District Court criminal conviction does not "wipe the slate clean," as appellant suggests, because the sentencing judge may consider the *250 prior District Court conviction, even though it is pending on appeal.
We conclude, as the Court of Special Appeals concluded, that appellant's sentence for the District Court assault remained in effect pending determination of the de novo appeal. Thus, at the time Judge Mackey sentenced the appellant for the forgery offense, the five-year sentence imposed upon him, to run consecutively to the District Court sentence, was not unlawful, even though at a later time, the District Court sentence would be superseded by a new sentence imposed by the circuit court.[3]
Judgment affirmed, with costs.
NOTES
[1] Section 12-401 (d) provides that, in a criminal case on appeal from a judgment of the District Court, the appeal "shall be tried de novo."
[2] Maryland District Rule (M.D.R.) 776 a provides that after conviction, pending an appeal, a defendant may be released in the discretion of the district judge upon compliance with certain conditions.
[3] Of course, if the defendant was acquitted at the de novo trial, there would be no underlying conviction to which the forgery sentence could be made consecutive. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261622/ | 111 Cal.Rptr.2d 395 (2001)
91 Cal.App.4th 1179
Jose E. CRUZ et al., Plaintiffs and Respondents,
v.
PACIFICARE HEALTH SYSTEMS, INC., et al., Defendants and Appellants.
No. A093002.
Court of Appeal, First District, Division Two.
August 28, 2001.
Review Granted October 31, 2001.
*396 Cooley, Godward, Martin S. Schenker, San Francisco, William E. Grauer, Christopher R.J. Pace, James V. Fazio, San Diego, for Defendants and Appellants.
The Furth Firm, Frederick P. Furth, Michael P. Lehmann, San Francisco, Ben Furth, for Plaintiffs and Respondents.
KLINE, P.J.
PacifiCare Health Systems, Inc., and its subsidiary, PacifiCare of California (collectively PacifiCare), appeal from an order denying their motion to compel arbitration of the claims asserted in Jose E. Cruz's unfair business practices complaint. PacifiCare contends that all Cruz's claims are subject to arbitration and, in the alternative, if some are not, that judicial proceedings should be stayed pending arbitration of those that are.
FACTUAL AND PROCEDURAL BACKGROUND
Cruz filed a class action against PacifiCare alleging violations of Business and Professions Code sections 17200 (unfair competition) and 17500 (false advertising) and the Consumer Legal Remedies Act (CLRA; Civ.Code, § 1750 et seq.), as well as unjust enrichment. The gravamen of his complaint is that undisclosed financial incentives to PacifiCare's providers significantly reduce the quality of health care its patients receive.
PacifiCare moved to compel arbitration of Cruz's claims pursuant to the arbitration clause in its health plan agreement with his employer[1] and the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.). *397 After a hearing, the trial court denied the motion to compel arbitration. PacifiCare filed a timely notice of appeal (Code Civ. Proc., § 1294, subd. (a)).
DISCUSSION
A. Arbitrability of Claims for Injunctive Relief.
"In enacting § 2 of the [Federal Arbitration] Act,[2] Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration." (Southland Corp. v. Keating (1984) 465 U.S. 1, 10, 104 S.Ct. 852, 79 L.Ed.2d 1.) The United States Supreme Court "has repeatedly made clear that arbitration may resolve statutory claims as well as those purely contractual if the parties so intend, and that in doing so, the parties do not forego substantive rights, but merely agree to resolve them in a different forum. [Citations.]" (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1075, 90 Cal. Rptr.2d 334, 988 P.2d 67. (hereafter Broughton).) However, "That is not to say that all controversies implicating statutory rights are suitable for arbitration." (Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc. (1985) 473 U.S. 614, 627, 105 S.Ct. 3346, 87 L.Ed.2d 444 (hereafter Mitsubishi).) For example, "the United States Supreme Court recognizes an `inherent conflict' exception to the arbitrability of federal statutory claims. [Citation.]" (Broughton, supra, 21 Cal.4th at pp. 1082-1083, 90 Cal.Rptr.2d 334, 988 P.2d 67.) That is, if Congress intended to prohibit waiver of a judicial forum for a particular statutory claim, such an intent will be deducible "from an inherent conflict between arbitration and the statute's underlying purposes." (Shearson/American Express, Inc. v. McMahon (1987) 482 U.S. 220, 227, 107 S.Ct. 2332, 96 L.Ed.2d 185.)
In Broughton, supra, 21 Cal.4th at page 1083, 90 Cal.Rptr.2d 334, 988 P.2d 67, our Supreme Court recognized that the United States Supreme Court's "inherent conflict" cases all concerned federal statutory claims, and thus the inquiry was into the Congressional intent behind those statutes. "But although the court has stated generally that the capacity to withdraw statutory rights from the scope of arbitration agreements is the prerogative solely of Congress, not state courts or legislatures [citation], it has never directly decided whether a legislature may restrict a private arbitration agreement when it inherently conflicts with a public statutory purpose that transcends private interests." (Ibid.) Accordingly, the Broughton court asked whether there is an inherent conflict between arbitration and the statute at issue there, California's Consumer Legal Remedies Act (id. at p. 1077, 90 Cal. Rptr.2d 334, 988 P.2d 67), and concluded that such a conflict does exist, under certain circumstances, between arbitration and the CLRA's injunctive relief provision (Civ.Code, § 1780, subd. (a)(2)). Specifically, the court held that where a CLRA plaintiff functions as a private attorney general, seeking to enjoin future deceptive practices on behalf of the general public, "arbitration is not a suitable forum, and the Legislature did not intend this type of *398 injunctive relief to be arbitrated." (Broughton, supra, 21 Cal.4th at pp. 1079-1080, 90 Cal.Rptr.2d 334, 988 P.2d 67.) Furthermore, Congress did not contemplate FAA enforcement of public injunction arbitration. (Id. at pp. 1083-1084, 90 Cal.Rptr.2d 334, 988 P.2d 67.) Two factors, taken together, convinced the Broughton court of the inherent conflict between arbitration and the underlying purpose of the CLRA's injunctive relief remedy: First, the relief is for the benefit of the general public rather than the party bringing the action, and second, the judicial forum has significant institutional advantages over arbitration in administering a public injunctive remedy. (21 Cal.4th at p. 1082, 90 Cal.Rptr.2d 334, 988 P.2d 67.)
The Broughton rationale has since been extended to claims for injunctive relief brought under Business and Professions Code section 17200 (Groom v. Health Net (2000) 82 Cal.App.4th 1189, 1199, 98 Cal. Rptr.2d 836 (hereafter Groom), Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 691-692, 99 Cal.Rptr.2d 809 (hereafter Coast Plaza ), Warren-Guthrie v. Health Net (2000) 84 Cal.App.4th 804, 817, 101 Cal.Rptr.2d 260 (hereafter Warren-Guthrie)), and PacifiCare does not dispute that it extends to section 17500 injunctive claims as well.
In this case, the trial court ruled that all Cruz's claims for injunctive relief were inarbitrable under Broughton and Coast Plaza. On appeal, PacifiCare contends that Broughton has been abrogated by the recent United States Supreme Court opinion in Green Tree Financial Corp.-Ala. v. Randolph (2000) 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (hereafter Randolph ). In that case, the court held that an arbitration agreement's silence with respect to payment of arbitration expenses, challenged under the Truth in Lending Act (15 U.S.C. § 1601) and the Equal Credit Opportunity Act (15 U.S.C. §§ 1691-1691f), did not render it unenforceable, because the plaintiff had not met her burden of establishing the likelihood that prohibitive arbitration costs would undermine her ability to vindicate her statutory rights. Thus, the Randolph court considered and resolved an issue entirely different from the one raised here and in Broughton. But PacifiCare focuses on the Randolph court's general statement, "In determining whether statutory claims may be arbitrated, we first ask whether the parties agreed to submit their claims to arbitration, and then ask whether Congress has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue. [Citations.]" (Randolph supra, 531 U.S. at p. 90, 121 S.Ct. 513, italics added; see also id., at pp. 90-91, 121 S.Ct. at p. 522.)
As indicated by the Randolph court's citation to Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (hereafter Gilmer), and Mitsubishi supra, 473 U.S. at page 628, 105 S.Ct. 3346 (and as PacifiCare expressly acknowledges), the quoted language does not constitute a new rule of law, but rather reiterates the established rule from which the Broughton court began its analysis. (See, e.g., Broughton, supra, 21 Cal.4th at pp. 1075, 1083, 90 Cal.Rptr.2d 334, 988 P.2d 67, citing Gilmer, Mitsubishi and the "Congressional intent" rule.) The high court, once again considering federal statutory claims, did nothing in Randolph to abrogate either its own "inherent conflict" method for determining Congressional intent, nor the Broughton court's application of that rationale to state statutory claims. (Cf. Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1264-1265, 1274-1275, 275 Cal.Rptr. 684 [California courts bound by state Supreme Court's rejection of federal constitutional challenges to state law absent *399 subsequent United States Supreme Court decision "directly on point"].)[3]
The trial court properly determined that Cruz's claims for public injunctive relief are inarbitrable under Broughton.
B. Arbitrability of Equitable Monetary Relief.
In addition to injunctive relief, Cruz requested disgorgement (Bus. & Prof.Code, §§ 17203, 17535), restitution (Civ.Code, § 1780, subd. (a)(3)), and disgorgement, restitution, refund, or reimbursement, as a remedy for alleged unjust enrichment.[4] While "statutory damages claims are fully arbitrable" (Broughton, supra, 21 Cal.4th at p. 1084, 90 Cal. Rptr.2d 334, 988 P.2d 67), the trial court found Cruz's claims for equitable monetary relief were not.
The CLRA expressly distinguishes between damages and restitution. (Civ. Code, § 1780, subds.(a)Q) & (3).) By their terms, Business and Professions Code sections 17203 and 17535 provide for restoration of money acquired by unfair competition and/or false advertising, but damages are not available under either section. (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173, 96 Cal.Rptr.2d 518, 999 P.2d 706). What is properly sought in a claim labeled "unjust enrichment" is restitution. (Lauriedale Associates, Ltd. v. Wilson (1992) 7 Cal. App.4th 1439, 1448, 9 Cal.Rptr.2d 774.) The trial court found the distinction between damages and restitution determinative, but PacifiCare maintains that under Broughton and its progeny, all claims except those for public interest injunctive relief are arbitrable, that is, only requests for public injunctions are exempt from arbitration. PacifiCare reads too much into the Broughton line of cases.
The Broughton plaintiffs sought medical malpractice damages and, under the CLRA, both damages and an injunction. (Broughton, supra, 21 Cal.4th at p. 1072, 90 Cal.Rptr.2d 334, 988 P.2d 67.) The court held that "the injunctive relief portion of a CLRA claim is inarbitrable, . . . [but] an action for damages under the CLRA is fully arbitrable. . . ." (Broughton, supra, 21 Cal.4th at p. 1072, 90 Cal. Rptr.2d 334, 988 P.2d 67; see also p. 1084, distinguishing injunctive relief from statutory damages). When it concluded that "the injunctive relief action alone should be decided in a judicial forum" (id. at p. 1088, 90 Cal.Rptr.2d 334, 988 P.2d 67, italics *400 added), the Broughton court did not have before it a claim for restitution.[5]
Similarly, in the cases following Broughton, the courts did not squarely address or resolve the issue of the arbitrability of equitable monetary relief. In Groom, supra, the plaintiff alleged several causes of action sounding in contract and/or tort, "and (9) injunctive and equitable relief on behalf of the general public pursuant to Business and Professions Code section 17200 to enjoin unlawful business practices in the future." (82 Cal.App.4th at p. 1193, 98 Cal.Rptr.2d 836.) The court reversed the trial court's ruling that defendant Health Net had waived its right to compel arbitration, but held that Broughton's reasoning applied to "Groom's cause of action on behalf of the general public to enjoin Health Net's allegedly unfair business practices pursuant to Business and Professions Code section 17200." (Id. at p. 1199, 98 Cal.Rptr.2d 836.) "Groom's claims for injunctive relief on behalf of the general public pursuant to Business and Professions Code section 17200 must therefore be severed from disposition of the arbitrable claims." (Ibid.) To the extent the court's reference to a cause of action for "injunctive and equitable relief (italics added) might suggest that Groom had requested some unspecified non injunctive equitable relief, e.g., restitution and/or disgorgement, which the court impliedly relegated to arbitration, that inference is undermined by the factual basis of her complaint: "[A]s a result of Health Net's refusal or failure to timely provide a neurological examination, a prescription drug, and an MR angiogram and cardiac workup, Groom suffered a disabling stroke." (Id at p. 1191, 98 Cal.Rptr.2d 836) This allegation supports a simple damages claim, and contrary to PacifiCare's suggestion, there is no indication the Groom court considered or decided the arbitrability of equitable monetary relief.
In Coast Plaza, supra, plaintiff hospital alleged violations of Business and Professions Code sections 17020 et sequitur (unfair trade practices) and 17200 (unfair competition) in addition to three nonstatutory causes of action (83 Cal.App.4th at pp. 681, 691, 99 Cal.Rptr.2d 809), seeking "both compensatory and punitive damages as well as injunctive relief." (Id at p. 682, 99 Cal.Rptr.2d 809; see also p. 692, 99 Cal.Rptr.2d 809, quoting prayer for monetary damages and, to remedy statutory violations, an injunction.) The court held, "Coast Plaza's requests for injunctive relief for the benefit of the public at large as a remedy under the two statutory schemes are the only requests for relief that are inarbitrable. Applying Broughton here, Coast Plaza must arbitrate the remainder of its causes of action and noninjunctive *401 remedies, including its purported entitlement to monetary damages. [Citations.]" (Id. at p. 692, 99 Cal.Rptr.2d 809, italics in original; see also p. 693, 99 Cal.Rptr.2d 809 ["all (Coast Plaza's) claims, save those seeking public injunctive relief, must be severed and resolved in arbitration"].) The court noted that under the Unfair Competition Act (Bus. & Prof.Code, § 17200 et seq.), a private litigant is entitled to "disgorgement of profits made by the defendant through unfair or deceptive practices in violation of the statutory scheme or restitution to victims of the unfair competition" (Coast Plaza, supra, 83 Cal.App.4th at pp. 691-692, 99 Cal. Rptr.2d 809, citations omitted), but since there is no indication that Coast Plaza in fact sought disgorgement or restitution, the case does not stand for the proposition that entitlement to such equitable monetary remedies must be arbitrated.
Finally, in Warren-Guthrie, supra, the plaintiff alleged four causes of action which would support recovery of damages, and a fifth for "injunctive relief under Business and Professions Code section 17200. (84 Cal.App.4th at pp. 808, 817, 101 Cal. Rptr.2d 260.) Citing Broughton and Groom, the court reversed the trial court's denial of a motion to compel arbitration, "with the exception of the cause of action for public injunctive relief, which shall be severed from the arbitrable claims and adjudicated in a judicial forum." (Id. at pp. 817-818,101 Cal.Rptr.2d 260.)
In the absence of authority directly on point, Cruz asserts the trial court properly viewed his claims for restitution and/or disgorgement as "purely equitable remedies ancillary to injunctive relief," and therefore inarbitrable. We agree.
The complaint in this case alleges not a personal injury, but a public wrong. Under Broughton's rationale, the remedy for such a public wrong may not be adjudicated by a private arbitrator. Put another way, there is an inherent conflict between arbitration and the public protection purposes of Business and Professions Code sections 17200 and 17500, as well as the restitution provision of the CLRA.
Describing the inherent conflict justifying an arbitration exemption for public injunctions, the Broughton court explained that "the purpose of arbitration is to voluntarily resolve private disputes in an expeditious and efficient manner. [Citations.]" (21 Cal.4th at p. 1080, 90 Cal. Rptr.2d 334, 988 P.2d 67.) "On the other hand, the evident purpose of the injunctive relief provision of the CLRA is not to resolve a private dispute but to remedy a public wrong." (Ibid.) "In other words, the plaintiff in a CLRA . . . action is playing the role of a bona fide private attorney general. [Citations.]" (Ibid.) In People v. Pacific Land Research Co. (1977) 20 Cal.3d 10, 141 Cal.Rptr. 20, 569 P.2d 125 (hereafter Pacific Land Research), the Attorney General and a county district attorney alleged that various statutory violations committed in the course of a sale of land to the public constituted unfair competition, and sought not only injunctive relief and civil penalties, but also restitution on behalf of the vendees under Business and Professions Code section 17535. (Id. at p. 14, 141 Cal.Rptr. 20, 569 P.2d 125.) The court stated, "The request for restitution on behalf of vendees in such an action is only ancillary to the primary remedies sought for the benefit of the public. [Citation.] While restitution would benefit the vendees by the return of the money illegally obtained, such repayment is not the primary object of the suit, as it is in most private class actions." (Id. at p. 17, *402 141 Cal.Rptr. 20, 569 P.2d 125.)[6] In Fletcher v. Security Pacific National Bank (1979) 23 Cal.3d 442, 153 Cal.Rptr. 28, 591 P.2d 51, a class action suit, the court explained that Business and Professions Code section 17535 authorizes restitution "in order to deter future violations of the unfair trade practice statute and to foreclose retention by the violator of its illgotten gains." (Id. at p. 449, 153 Cal.Rptr. 28, 591 P.2d 51.) "Restitution is not intended to benefit the tendees by the return of the money, but instead is designed to penalize a defendant for past unlawful conduct and thereby deter future violations." (People v. Toomey, supra, 157 Cal. App.3d at pp. 25-26, 203 Cal.Rptr. 642, construing Bus. & Prof.Code, §§ 17203 & 17535.)
The equitable monetary relief requested here is intimately tied to the inarbitrable injunctive relief. There can be no restitution or disgorgement without a finding of injury to the public, and it is hard to imagine a restitution award or a disgorgement order without an underlying injunction against further commission of that public wrong. "As one court has stated, `The injunction against future violations, while of some deterrent force, is only a partial remedy since it does not correct the consequences of past conduct. To permit the [retention of even] a portion of the illicit profits, would impair the full impact of the deterrent force that is essential if adequate enforcement [of the law] is to be achieved. On requirement of such enforcement is a basic policy that those who have engaged in proscribed conduct surrender all profits flowing therefrom.' [Citations.]" (Fletcher v. Security Pacific National Bank, supra, 23 Cal.3d at p. 451, 153 Cal.Rptr. 28, 591 P.2d 51, brackets in original.)[7]
CONCLUSION AND DISPOSITION
Our holding in this case is a narrow one: Where, as here, a restitution claim is ancillary to injunctive relief sought under a statutory scheme whose primary purpose is to protect the public by punishing wrongdoing and deterring future violations, rather than to compensate individual plaintiffs, the restitution claim is not subject to arbitration, but must be tried along with the claim for injunctive relief in a court of law. Since the trial court properly ruled that all Cruz's claims are inarbitrable, we need not reach PacifiCare's request for a stay pending arbitration, or any of the alternative "independent grounds" Cruz advances for affirmance. *403 Accordingly, the parties' motions for judicial notice of documents relating to the issue of unconscionability are denied as moot. The order denying PacifiCare's motion to compel arbitration is affirmed, and the matter remanded for further proceedings in accordance with this opinion.
HAERLE, J., and LAMBDEN, J., concur.
NOTES
[1] Paragraph 15.02 of the agreement states in pertinent part, "PacifiCare uses binding arbitration to resolve any and all disputes between PacifiCare and group or member, including but not limited to, allegations . . . of medical malpractice . . . and other disputes relating to the delivery of services under the PacifiCare Health Plan."
[2] The FAA provides, "A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." (9 U.S.C. § 2.)
[3] The recent Supreme Court decision in Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 [9 U.S.C. § 1 exempts from arbitration employment contracts of transportation workers only]) is equally inapt. PacifiCare directs our attention to a passage (id. at p. 1313) in which the court reiterates its general teaching that both state and federal statutes are governed by the FAA's mandate, but the case did not present, nor did the court address, the "inherent conflict" exception to section two of the FAA, which is at issue in this case.
[4] To remedy the alleged statutory violations, Cruz requested an order that defendants "disgorge to plaintiff and the class, all of their illgotten gains and monies wrongfully acquired by means of" unfair competition and/or unlawful advertising, and "make restitution to plaintiff and the class of all money paid to defendants during the class period." To remedy the alleged unjust enrichment, he asked for (1) "restitution, refund, or reimbursement of the monies paid by or on behalf of plaintiff and the class to defendants so as to restore any and all monies to plaintiff and members of the class which were acquired and obtained by means of" unfair advertising and/or business practices, "and which ill-gotten gains are still retained by defendants," and (2) "disgorgement of the excessive and illgotten monies obtained by defendants as a result of" those acts and practices.
[5] Two justices concurred with that part of the majority opinion which held that as much of the second count of the plaintiffs' complaint as sought actual and punitive damages was arbitrable. But the opinion was phrased that an agreement to arbitrate a claim under the CLRA "is enforceable to the extent [it] seeks actual damages, restitution, or punitive damages." (Cone, and dis. opn. of Chin, J., at p. 1088, 90 Cal.Rptr.2d 334, 988 P.2d 67, italics added.) We could ignore the reference to "restitution" on the ground that we are not bound by a minority's characterization of a majority's holding (see Roy Supply, Inc. v. Wells Fargo Bank (1995) 39 Cal.App.4th 1051, 1067, 46 Cal.Rptr.2d 309), but we prefer to note that the majority opinion in Broughton did not, in fact, discuss or mention any claim for restitution under the CLRA (specifically and separately provided for, as noted above, in § 1780, subd. (a)(3)). Indeed, apparently no such claim was ever brought by the plaintiffs in that case. (See maj. opn. at p. 1072, 90 Cal.Rptr.2d 334, 988 P.2d 67, describing the claims brought by the plaintiffs.) Therefore, we feel free to disregard the concurring opinion's mention of "restitution" on the ground that it referred to an issue not in fact before the court.
[6] By "private class action," the Pacific Land Research court was apparently referring to suits for damages brought under the CLRA. It expressly referred to Civil Code section 1781, and described such suits as being "aimed at recovery of money" and "usually based upon the theories of fraud or breach of contract," adding, "Reliance and actual damages must be shown." (20 Cal.3d at p. 18 & fn. 7, 141 Cal.Rptr. 20, 569 P.2d 125.) By contrast, "Since the unlawful business practices act seeks to protect the public from continued violations rather than [to] benefit private litigants [citations], reliance and actual damages are not necessary elements to an award under [Business & Professions Code] sections 17203 and 17535. [Citations.]" (People v. Toomey (1984) 157 Cal.App.3d 1, 25, 203 Cal.Rptr. 642.) Although the Pacific Land Research court did not consider section 17535 actions, such as this one, brought by private parties, its observations on the nature of the statute's restitution provision are nonetheless illuminating.
[7] The issue of individual claim for disgorgement/frestitution, which was briefly discussed at oral argument, is not now before us. This opinion assumes, as do the parties, that this action will be maintained as a class action. However, there has yet been no motion for class certification. Denial of such a motion might well render any monetary claim arbitrable, but that question is also not now before us. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261624/ | 428 A.2d 303 (1981)
John A. KURBIEC, Jr.
v.
George J. BASTIEN et al.
No. 78-195-M.P.
Supreme Court of Rhode Island.
April 16, 1981.
McKinnon & Fortunato, Daniel V. McKinnon and Amy R. Tabor, Pawtucket, for plaintiff-respondent.
William J. Toohey, City Sol., David D. Prior, Asst. City Sol., Warwick, for defendants-petitioners.
OPINION
WEISBERGER, Justice.
This case comes before us on a petition for certiorari. The petitioner seeks review of a Superior Court judgment which determined that the defendants were without jurisdiction to terminate the plaintiff's employment as a police officer of the city of Warwick and remanded the case to the Warwick Board of Public Safety for action consistent with the opinion of the Superior Court. The judgment of the Superior Court can best be understood in the context of the factual and procedural history of the case.
John A. Kurbiec, Jr. (the officer), began his employment as a member of the Warwick police department in 1967. Thereafter, on September 30, 1972, he suffered an injury to his knee while on duty. As a result of his injury, the officer underwent approximately six surgical procedures on his injured leg. Between September 1972, and December 1974, the officer was intermittently on a sick-leave status but returned from time to time to active duty. However, in December of 1974 the officer went on sick leave and never returned to *304 active duty with the Warwick police department. At all times while on a sick-leave status, the officer received full salary from the city.
On October 23, 1974, the officer applied for a disability pension. Pursuant to this application the Board of Public Safety of the City of Warwick (the board) scheduled a hearing for March 12, 1975. On March 10, 1975, Commander Glendenning of the Warwick police department (the commander) discovered that the officer was working for the Disabled American Veterans in the Federal Building in Providence. The commander took the position that it was wrong for the officer to be employed while he was on a sick-leave status from the department and, further, that the officer was in violation of Warwick police regulations because while so employed, he did not have his police identification card or his badge on his person. After interviewing the officer, the commander imposed a punishment of forty hours' suspension. Thereafter, the chief of police of Warwick, Edward P. Audet, imposed a summary suspension upon the officer of one hundred hours. On March 14, 1975, the officer and his attorney filed a written request with the Warwick police department which sought a full hearing on the matter of the officer's suspension. The chief of police replied in writing to the officer's attorney that a hearing on the officer's suspension would take place on April 2, 1975, at 8 p.m. This reply was accompanied by a written notice of the charges against the officer. A notice of these charges was served on the officer as well.
On April 2, 1975, a hearing took place before the board. At this hearing testimony was adduced that the officer had been working for the Disabled American Veterans in a clerical position while on sick leave with full pay from the Warwick police department. Further testimony was presented that the officer had been employed by an automobile dealer while on sick leave from the department in June 1973. Evidence was also presented in support of additional charges that had been served upon the officer.[1] After considering the evidence, the chairman of the board rendered a written decision on April 3, 1975, which dismissed the officer from the police department effective as of midnight on the date of rendition of the decision.[2] Thereafter, the officer sought relief in the Superior Court.[3] However, it is now clear that the appropriate jurisdictional basis for the Superior Court's consideration of this matter was G.L. 1956 (1970 Reenactment) § 45-20-1.1. Indeed, this court has so observed in respect to the instant case in Kurbiec v. Bastien, R.I., 385 A.2d 667 (1978), in which we held that the appeal purportedly taken by the board was not properly before us since no appeal has been provided from decisions of the Superior Court pursuant to § 45-20-1.1. We held that the only review of such a judgment was by common law certiorari and not by appeal. Thereafter, we granted *305 the petition for certiorari. Kurbiec v. Bastien, R.I., 388 A.2d 1378 (1978). The writ was issued on September 21, 1978, pursuant to which the record of this case was certified to us by the clerk of the Superior Court for the County of Kent.
Essentially the officer contends before us, as he did in the Superior Court, that the board had no jurisdiction to dismiss him from the police department in the context of an appeal from an administrative suspension. The Superior Court agreed with this contention.
In the posture in which this case was purportedly presented to the Superior Court, the nature of the decision to be rendered by the court was not clearly delineated to the trial justice. Both parties filed a stipulation of facts in which it was admitted that the officer had been employed as found by the board, but the officer denied that this employment was an appropriate basis for dismissal in light of the travel of the case. The parties suggested to the court that it review the action of the board pursuant to the provisions of the Administrative Procedures Act, G.L. 1956 (1969 Reenactment) § 42-35-15.[4] One could scarcely fault the trial justice under the circumstances for regarding his function to be that of appellate review. Nevertheless, the provisions of § 45-20-1.1 specifically authorize and require a trial de novo, not an appellate type of review by the Superior Court. In such a situation the Superior Court has the power and responsibility to determine the facts anew and to decide, untrammeled by any decision of the municipal tribunal below, what penalty, if any, should be imposed. In a broad grant of authority, the Legislature in § 45-20-1.1 has conferred upon the Superior Court in respect to disciplinary sanctions imposed upon police officers the power to "uphold the decision, reverse the decision, restore the police officer to his former rank, revoke the suspension, reduce the penalty * * *" and provide for appropriate reimbursement to the policeman to the extent that the decision is reversed or modified. In such a de novo hearing, the Superior Court is not constricted by the doctrines of appellate review but may substitute its judgment for that of the municipal board. This does not mean that the Superior Court could not act upon a stipulated set of facts.
However, after considering the facts and circumstances of the case, the trial justice had to make a determination regarding what discipline, if any, should be imposed upon the officer. The statute does not provide for a remand to the municipal board. It clearly contemplates that the Superior Court will render a final decision in respect to the disciplining of a policeman which decision will terminate the proceedings. See Aiudi v. Baillargeon, R.I., 399 A.2d 1240, 1243 (1979).
In the case at bar, by reason of the erroneous presentation of both parties, the trial justice was misled concerning his appropriate role in disposing of the litigation. We believe that justice is best served by remanding this case to the trial justice with instructions to perform his appropriate function under the provisions of § 45-20-1.1.
For the reasons stated, the petition for certiorari is hereby granted, the judgment of the Superior Court is quashed insofar as it purports to remand the case to the Board of Public Safety of the City of Warwick, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.
SHEA, J., did not participate.
NOTES
[1] Charges preferred by the chief and served upon the officer in the notice of hearing read as follows:
"(1) Violation of Section 305.5, Subsection (f), leaving the limits of the City while on sick status without permission of the Chief.
"(2) Section 203.3, failing to have badge and identification on person.
"(3) Violation of Part III, Section 304.8, Subsection (g), any non-feasance, in that you did obtain employment while collecting full pay while on sick status from the department.
"(4) Section 304.8, Subsection (y), conduct unbecoming an officer, in that you did accept sick pay from the City while working for a private concern, the Disabled American Veterans.
"(5) Section 304.8, Subsection (aa), conduct tending to cast disrespect on the department, in that you knowingly collected sick pay from the City of Warwick while being employed in a private concern."
[2] The decision of the board was set forth in the following terms:
"After a hearing on the charges that you violated Department Rules and Regulations, and deliberation of the evidence presented to the Board of Public Safety on April 2, 1975, a finding was made.
"It was the decision of the Board of Public Safety that you violated these department rules.
"It was also the unanimous decision of the Board of Public Safety that you be dismissed from this Police Department."
[3] The officer's action in the Superior Court was denominated a "COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF."
[4] Although both parties sought review under the Administrative Procedures Act, obviously they were mistaken about the appropriate statutory vehicle that conferred jurisdiction of such appeal upon the Superior Court.
We note that since the Superior Court disposition of this case, the judicial review provisions of the Administrative Procedures Act have been amended in a manner not pertinent to this controversy. Public Laws 1976, ch. 140, § 20 (codified at G.L. 1956 (1977 Reenactment) § 42-35-15). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2758396/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 26, 2014*
Decided December 8, 2014
Before
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14-1728
FLOYD L. SEMONS, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 12-CV-65
ROBERT SADOWSKI and Nancy Joseph,
CALVIN SMITH, Magistrate Judge.
Defendants-Appellees.
ORDER
Plaintiff-appellant Floyd Semons, a Wisconsin inmate, appeals a jury verdict in
favor of two jail officials in his suit under 42 U.S.C. § 1983 asserting excessive force. We
affirm.
After Semons pulled out several sprinkler heads in the Milwaukee County Jail,
Officers Robert Sadowski and Calvin Smith restrained him—excessively so, in his view.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 14-1728 Page 2
During the trial, testimony was given by Semons, Sadowski, Smith, and a psychiatric
nurse employed by the jail. The jury concluded that the force used against Semons was
not unreasonable under the circumstances.
On appeal Semons argues that the district court erred in allowing the nurse to
testify because he did not have adequate notice before trial that she would be a witness.
But the nurse’s name actually appeared in two documents that the officers submitted
before trial. Some confusion may have arisen because the nurse’s maiden name was used
in the officers’ pretrial report, in which the officers listed “Psychiatric Nurse Chris
Lubus, Milwaukee County Jail” as a potential witness. But the officers clarified any
confusion two weeks later when they identified her in their amended witness list as
“Psychiatric Nurse Chris Becker (nee Lubus), Milwaukee County Jail.”
Semons also contends that he should be granted a new trial because his counsel
was ineffective in failing, among other things, to object to the nurse being allowed to
testify. But there is no constitutional right to effective assistance of counsel in a civil case.
See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001); Bell v. Eastman Kodak Co., 214 F.3d
798, 802 (7th Cir. 2000).
AFFIRMED. | 01-03-2023 | 12-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2758397/ | Filed 12/8/14 Wilson v. Benson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
LINNEA WILSON, as Trustee, etc., H038833
(Santa Cruz County
Plaintiff and Appellant, Super. Ct. No. PR045408)
v.
JOHN BENSON et al.,
Defendants and Respondents.
Appellant Linnea Wilson’s petition to determine ownership of property and cancel
a deed was dismissed on statute of limitations grounds by summary judgment. On
appeal, she contends that the five-year limitations period under Code of Civil Procedure
sections 318 and 3191 had never commenced to run because she retained legal title to the
property as trustee of a trust. We agree and reverse the judgment.
I. Undisputed Facts
Selda Benson (Selda) was the mother of two children, Linnea Wilson (Wilson)
and John Benson (John). In June 2000, Selda executed a trust declaration creating a
revocable living trust, appointed Wilson as the trustee of the trust, and transferred Selda’s
1
Subsequent statutory references are to the Code of Civil Procedure unless
otherwise specified.
2
interest in her Aptos home (the property) into the trust. The trust declaration provided
that Selda “may add property to the trust or remove property from the trust at any time.”
The trust declaration also provided that, upon Selda’s death, the property in the trust was
to be shared equally by Wilson and John.
In June 2004, Selda executed a quitclaim deed transferring her interest in the
property to John, his wife Carolyn Benson (Carolyn), and herself as equal joint tenants.
This deed was recorded in June 2004. At the same time, Selda executed a will leaving all
of her personal property to Wilson. Selda shortly thereafter moved to Florida where John
and Carolyn resided. Wilson learned of the quitclaim deed no later than May 2005. In
2005, John obtained a guardianship over Selda’s person and property due to her
incapacity. Selda continued to pay the property taxes on the property until she died in
2008. In 2011, Selda’s personal property was distributed to Wilson under Selda’s 2004
will. John and Carolyn have remained in Florida from 2004 to the present.
II. Procedural Background
In 2011, Wilson filed a petition that asserted three causes of action. The first
cause of action was brought in Wilson’s capacity as trustee “to determine ownership” of
the property. The second and third causes of action were brought in Wilson’s capacity as
Selda’s “successor in interest” to cancel the 2004 deed due to Selda’s lack of capacity
and John’s undue influence on her at the time of its execution.
2
Although the appellate record does not contain a deed transferring the property to
Wilson as trustee of the trust, both Wilson and John declared that Selda did so at the same
time that she executed the trust declaration. “To create an express trust there must be an
explicit declaration of trust followed by an actual conveyance or transfer of property to
the trustee.” (Bainbridge v. Stoner (1940) 16 Cal. 2d 423, 428.) “ ‘A trust always requires
transfer of legal title to the trustee . . . .’ ” (Estate of Heggstad (1993) 16 Cal. App. 4th
943, 950.)
2
John and Carolyn moved for summary judgment based on the statute of
3
limitations. They asserted that the five-year limitations period under sections 318 and
319 applied and had expired before Wilson filed her action. Their motion assumed, for
purposes of the motion only, that Selda lacked capacity and was subjected to undue
influence when she executed the 2004 deed.
Wilson’s opposition to the motion conceded that the five-year limitations period
applied, but she argued that the period had not begun to run because she remained
“ ‘seised’ ” of the property as the trustee of the trust. She also argued that the limitations
period was tolled under section 351 because Selda, John, and Carolyn were in Florida
throughout the period between the execution of the 2004 deed and the filing of Wilson’s
action.
The trial court found that there were no material disputes of fact, that the five-year
limitations period had expired, and that it had not been tolled. It entered judgment
against Wilson and denied her motion for a new trial. Wilson timely filed a notice of
appeal.
III. Analysis
Section 318 provides: “No action for the recovery of real property, or for the
recovery of the possession thereof, can be maintained, unless it appear that the plaintiff,
his ancestor, predecessor, or grantor, was seized or possessed of the property in question,
within five years before the commencement of the action.” (Italics added.) Section 319
provides: “No cause of action, or defense to an action, arising out of the title to real
property, or to rents or profits out of the same, can be effectual, unless it appear that the
3
Their summary judgment motion also contended that the second and third causes
of action were barred by laches. The trial court did not credit this contention, and they do
not renew it in their brief on appeal. In any case, it would not justify summary judgment
as they did not contend that the first cause of action was barred by laches.
3
person prosecuting the action, or making the defense, or under whose title the action is
prosecuted, or the defense is made, or the ancestor, predecessor, or grantor of such person
was seized or possessed of the premises in question within five years before the
commencement of the act in respect to which such action is prosecuted or defense made.”
(Italics added.)
The parties dispute whether it is section 318 or instead section 319 that applies
here, but this dispute is immaterial. “The overall effect of these sections is manifest:
actions relating to either the possession of or title to real property (or, of course, both)
must be commenced within five years from the end of possession or seizin of that
property by the claimant or his or her predecessor in interest . . . .” (Robertson v.
Superior Court (2001) 90 Cal. App. 4th 1319, 1328.) “ ‘ “The requirement of seisin or
possession is met when it is established that the plaintiff was possessed of legal
title . . . .” ’ ” (Tobin v. Stevens (1988) 204 Cal. App. 3d 945, 949.) Wilson’s action sought
to recover title to and possession of the property. Thus, the five-year limitations period
applied.
Five years indisputably elapsed between the June 2004 deed and Wilson’s
commencement of this action in 2011. Wilson contends that the five-year period not only
had not expired but had never begun to run because she continued to be “seized . . . of the
property in question” as trustee. In her view, Selda lacked the power to convey anything
more than equitable title to the property after transferring the property to Wilson as
trustee of the trust. Consequently, the 2004 deed did not convey legal title, which Wilson
retained as trustee. John and Carolyn, on the other hand, insist that the 2004 deed
indisputably conveyed legal title so Wilson lacked legal title as of the execution of the
2004 deed.
“[I]t is a rudimentary principle of trust law that the creation of a trust divides
title—placing legal title in the trustee, and equitable title in the beneficiaries.” (Allen v.
Sutter County Bd. of Equalization (1983) 139 Cal. App. 3d 887, 890.) “The beneficiary of
4
an ordinary trust is empowered to convey only his beneficial interest in the trust property.
[Citation.] Since the beneficiary holds only equitable title, the legal title residing in the
trustee, the beneficiary has no power to convey absolute ownership of trust property.”
(Walgren v. Dolan (1990) 226 Cal. App. 3d 572, 576 (Walgren).)
John and Carolyn claim that Walgren supports their claim that Selda retained the
power to convey absolute ownership of the trust property. Not so. In Walgren, the
settlor had transferred legal title to the trustees and thereafter entered into a contract to
sell the property to the plaintiffs. The settlor died, and the plaintiffs brought an action for
specific performance against the trustees. The court held that specific performance was
available despite the settlor’s lack of legal title at the time of the contract because the
settlor had retained the power to “ ‘call for’ legal title” and require the trustees to convey
title to the plaintiffs. (Walgren, supra, 226 Cal.App.3d at p. 576.) The source of that
power was a provision in the trust declaration that “ ‘[u]pon receipt of written directions
from the Beneficiary, the Trustee in their capacity as Trustee shall do and perform any or
all of the following acts, to wit [¶] . . . [¶] . . . [c]onvey all or any parts of said real
property, subject to all matters then of record against the same, to the person or persons
designated in said directions and for such consideration and on such terms and conditions
as are therein specified.’ ” (Walgren, at p. 575, fn.1.) It was this provision that rendered
specific performance available to the plaintiffs after the settlor’s death, as the settlor had
the power to require the trustees to convey title and would have been obligated to do so if
still alive.
Unlike Walgren, the case before us does not involve such a provision nor does it
involve an obligation by the settlor (Selda) to convey legal title to John and Carolyn.
Selda’s trust declaration reserved to her the power to amend or revoke the trust and the
power to add or remove property from the trust. While she executed a quitclaim deed
purporting to convey a portion of the property to John and Carolyn, John and Carolyn did
not attempt to establish that Selda ever exercised her power to amend or revoke the trust
5
or her power to remove the property from the trust. “ ‘A quitclaim deed transfers
whatever present right or interest the grantor has in the property. [Citation.]’ ” (City of
Manhattan Beach v. Superior Court (1996) 13 Cal. 4th 232, 239.) The quitclaim deed
itself contained no language purporting to remove the property from the trust or to amend
or revoke the trust. Since, at the time of the quitclaim deed, Selda held only equitable
title, but not legal title, to the property, the quitclaim deed conveyed only a portion of
Selda’s equitable title and left undisturbed the legal title that Wilson held as trustee of the
trust.
John and Carolyn put misplaced reliance on Zanelli v. McGrath (2008) 166
Cal. App. 4th 615 (Zanelli), Galdjie v. Darwish (2003) 113 Cal. App. 4th 1331 (Galdjie),
and Steinhart v. County of Los Angeles (2010) 47 Cal. 4th 1298 (Steinhart). In all three of
these cases, the settlor was both the trustee and the beneficiary of the trust and therefore
held both legal and equitable title. (Zanelli, at pp. 633-635; Galdjie, at p. 1350;
Steinhart, at p. 1320.) Thus, unlike Selda, the settlors in those cases were able to convey
absolute title.
The trial court erred in granting summary judgment because the five-year
limitations period had never begun to run under sections 318 and 319 as Wilson
continues to hold legal title to the property. In reaching this conclusion on the statute of
limitations issue, we express no opinion on the merits of Wilson’s petition to determine
ownership of the property and cancel a deed.
IV. Disposition
The judgment is reversed. The trial court is directed to vacate its order granting
the summary judgment motion and to enter a new order denying that motion. Wilson
shall recover her appellate costs.
6
_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Bamattre-Manoukian, Acting P. J.
_____________________________
Grover, J.
7 | 01-03-2023 | 12-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2758398/ | Filed 12/8/14 P. v. Vela CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B238228
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA067007)
v.
VICTOR FIDENCIO VELA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Antonio Barreto, Jr., Judge. Affirmed.
Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Taylor
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant, Victor Fidencio Vela (Vela), appeals his conviction for
first degree murder and assault by means likely to produce great bodily injury, with
deadly weapon use, prior serious felony conviction and prior prison term enhancements
(Pen. Code, §§ 187, 245, subd. (a)(1), 12022, subd. (b)(1), 667, subds. (a)-(i), 667.5).1
He was sentenced to state prison for a term of 111 years to life.2
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal. 4th 1199, 1206), the evidence established the following.
On February 28, 2008, Duwayne Bennett and co-workers Ryan Comstock and
Shaun Lucy went for drinks after work at Brennan’s Pub in Marina Del Rey. Vela and a
friend arrived at Brennan’s on skateboards at about 1:00 a.m. When one of the bar’s
bouncers told Vela skateboards were not allowed inside because they could be used as
weapons, Vela said: “I have better weapons on me than that.”
Vela was allowed inside without his skateboard just to look around. Comstock,
who happened to be walking out of the bar at that moment, bumped into him. Vela got
mad and told Comstock to apologize, which Comstock did but only “begrudgingly . . .
like he really didn’t have to say it.” Rasaan Bowman, one of the bouncers, intervened.
He told Vela that Comstock “had been inside drinking, and he probably didn’t know what
he was doing and . . . just to let it go.”
Twenty or thirty minutes later, Comstock, Lucy and Bennett left the bar and went
across the street to the International House of Pancakes (IHOP). As Comstock walked
past a pole, he looked in Vela’s direction and slapped the pole. Vela “wasn’t happy about
[this]” and his friend said, “Did you see that? We shouldn’t let him get away with that.”
1
All further references are to the Penal Code unless otherwise specified.
2
After we originally filed this opinion, we granted rehearing and directed the
parties to submit supplemental briefing limited to the issue of Vela’s competency to stand
trial. We have reviewed and considered the briefs filed by the parties.
2
Vela told Bowman “he felt disrespected because he had to bring it to this person’s
attention to say excuse me and everything, and he felt disrespected in that regard.”
Bowman tried to calm Vela down, but it seemed Vela was “stewing it over in his head a
little bit, thinking whether or not it would be a good idea to do anything about it.”
Eventually, Vela and his friend walked away.
While Comstock, Lucy and Bennett were in the IHOP parking lot, Lucy heard
someone say, “There he is over there.” Comstock saw Vela’s friend pointing at him and
saying, “Yeah, that’s the guy.” Vela and his friend approached Lucy and Bennett.
Comstock was standing 10 or 15 feet away. Vela seemed agitated and angry. He told
Lucy and Bennett he was upset about what happened at Brennan’s. Lucy apologized to
him and Bennett said they didn’t want any trouble. Lucy and Bennett then talked to Vela
about motorcycles in an attempt to calm him down. By this time Comstock was standing
20 to 25 feet away and was not involved in the conversation.
After talking for about 10 minutes, Lucy told Vela he was hungry and that he and
his friends were going into the IHOP to eat. Lucy testified Vela “got angry [when
Bennett] tried to clear the air for the last time before we went in to eat,” and Vela
“flipped out.” From his pants, Vela pulled out a chain with a lock on the end of it. He
moved toward Bennett and began hitting him with the chain, saying “Are you trying to be
a hero?” Vela swung the chain like a whip, hitting Bennett in the back and in the head.
Bennett said, “Stop. You don’t want to do this. What are you doing?” Bennett was
retreating and trying to defend himself, but Vela continued to hit him with the chain and
lock. It appeared to Lucy and Comstock that Vela was controlled and focused as he
swung the chain.
At some point, Bennett grabbed the chain and Vela got close to him.
Lucy saw Vela make stabbing motions at Bennett with his left hand while holding the
chain with his right hand. After the chain had fallen to the ground, Comstock saw Vela
punching Bennett with a motion indicating Vela had something in his hand. Bowman,
who was watching from across the street, saw Vela hitting Bennett. Another bystander,
Jay Felker, saw Vela holding Bennett’s shirt by the collar with one hand while he was
3
“slugging [Bennett] in an upward motion” with the other hand. Comstock stepped in and
hit Vela in the back with a skateboard. He testified Vela “backed up, grabbed the chain
off the ground and ran off.” Lucy testified he believed Comstock hit Vela either after or
while Vela was stabbing Bennett.
Oswaldo Benedid, who had been inside the IHOP, ran outside to stop Vela from
hitting Bennett with the chain. Benedid pushed Vela off Bennett and told him to leave.
Vela hit Benedid with the chain and ran off. Bennett was covered in blood. He called
out Lucy’s name and then collapsed.
A police officer apprehended Vela about 1:45 a.m. By that time, Vela had neither
a chain nor a knife in his possession. A knife, with Bennett’s blood on it, was later
recovered from a planter box in front of a nearby shop. A witness had seen someone
throw an object into the planter box.
The autopsy revealed Bennett died from a “sharp force injury to the chest”
consistent with a knife wound. A portion of Bennett’s heart had been pierced. He also
sustained two non-fatal sharp force injuries to his torso and one to the back of his head.
CONTENTIONS
1. The trial court erred by failing to hold a competency hearing.
2. There was insufficient evidence to sustain a first degree murder conviction.
3. Defense counsel was ineffective for not objecting to improper lay opinion
testimony.
DISCUSSION
1. Trial court did not err by failing to hold a competency hearing.
Vela contends his convictions must be reversed because the trial court failed to
hold a hearing to determine if he was competent to stand trial. This claim is meritless.
a. Legal principles.
“The due process clause of the federal Constitution’s Fourteenth Amendment
prohibits trying a criminal defendant who is mentally incompetent. [Citations.] A
defendant is deemed competent to stand trial only if he ‘ “has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding” ’ and ‘ “has a
4
rational as well as factual understanding of the proceedings against him.” ’ [Citation.]
[¶] When a trial court is presented with evidence that raises a reasonable doubt about a
defendant’s mental competence to stand trial, federal due process principles require that
trial proceedings be suspended and a hearing be held to determine the defendant’s
competence. [Citations.] Only upon a determination that the defendant is mentally
competent may the matter proceed to trial. [Citation.] [¶] California law reflects those
constitutional requirements. Section 1368, in subdivision (a), requires a trial court to
suspend criminal proceedings at any time ‘prior to judgment’ if the court reasonably
doubts ‘the mental competence of the defendant.’ A defendant can create reasonable
doubt through substantial evidence of mental incompetence, or the trial court can raise
the issue on its own. . . .” (People v. Ary (2011) 51 Cal. 4th 510, 517.)
“A defendant is presumed to be mentally competent to stand trial. (§ 1369,
subd. (f).) [¶] . . . [S]ection 1368 provides that if the trial court has any doubt as to the
defendant’s competence to stand trial, it must state that doubt in the record and inquire of
counsel whether, in his or her opinion, the defendant is mentally competent. (§ 1368,
subd. (a).) The trial court is authorized to conduct a competency hearing on its own
motion and at the request of counsel. (§ 1368, subd. (b).) [¶] . . . ‘[O]nce the accused
has come forward with substantial evidence of incompetence to stand trial, due process
requires that a full competence hearing be held as a matter of right. [Citation.] In that
event, the trial judge has no discretion to exercise. [Citation.] As we also have noted,
substantial evidence of incompetence is sufficient to require a full competence hearing
even if the evidence is in conflict. [Citation.] We have concluded that where the
substantial evidence test is satisfied and a full competence hearing is required but the trial
court fails to hold one, the judgment must be reversed. [Citation.]’ ” (People v. Young
(2005) 34 Cal. 4th 1149, 1216-1217, fn. omitted.)
“In this context, substantial evidence means evidence that raises a reasonable
doubt about the defendant’s ability to stand trial. [Citation.] The substantiality of the
evidence is determined when the competence issue arises at any point in the proceedings.
[Citation.] The court’s decision whether to grant a competency hearing is reviewed under
5
an abuse of discretion standard. [Citations.] [¶] Substantial evidence of incompetence
may arise from separate sources, including the defendant’s own behavior. For example,
if a psychiatrist or psychologist ‘who has had sufficient opportunity to examine the
accused, states under oath with particularity that in his professional opinion the accused
is, because of mental illness, incapable of understanding the purpose or nature of the
criminal proceedings being taken against him or is incapable of assisting in his defense or
cooperating with counsel, the substantial-evidence test is satisfied.’ . . . [A] defendant
must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting
psychiatric condition that has little bearing on the question of whether the defendant can
assist his defense counsel.” (People v. Ramos (2004) 34 Cal. 4th 494, 507-508.) “[A]
trial court is not required to order a competence hearing based merely upon counsel’s
perception that his or her client may be incompetent. [Citation.]” (People v. Welch
(1999) 20 Cal. 4th 701, 738-739, fn. 7.)
b. Background.
During a pretrial hearing at which the defense was seeking authorization to have
an MRI3 done, defense counsel informed the trial court he had received a report from a
medical expert, psychologist Dr. Abraham Argun, regarding Vela’s competence to stand
trial. Argun had been appointed to advise counsel about a potential insanity defense for
Vela. Defense counsel told the trial court it was Argun’s opinion Vela was incompetent
to stand trial at the present time, and that counsel felt compelled to alert the court to
Argun’s opinion.
The following colloquy then occurred:
“The Court: Now, that’s not a report that I’ve seen. Do you happen to have it
with you?
3
Defense counsel was seeking authorization to have an MRI (magnetic resonance
imaging) scan performed, presumably because the defense psychologist believed Vela
might be suffering from organic brain damage.
6
“[Defense counsel]: Well, this was a confidential report, and . . . I have part of the
report. The other part . . . I don’t want to release yet because it goes into other issues
regarding sanity. But I can show the court the part on competence.
“The Court: That’s the only part I want to see.
“[Defense counsel]: That’s fine. May I approach, Your Honor?[4] [¶] . . . [¶]
“The Court: All right. Well, that is clearly what that pertinent part of the report
says. And I agree with [defense counsel]. That comment cannot be ignored.
Interestingly Dr. Argun was not appointed for the purpose of making a competency
evaluation, but he’s taken it upon himself to do that which was within his professional
discretion, I suppose. [¶] So now what we have to do is we have to have an appointment
for the purpose of either confirming or excluding that very finding, so hang on a second.”
The trial court restated its concern that Argun had provided an unsolicited
opinion,5 and also said Argun’s desire to conduct an MRI examination in order to test
Vela’s competence seemed to contradict the notion he had already found Vela
incompetent: “Well, I think [the MRI order is] going to be necessary anyway because
one of the things that Dr. Argun said in the report, the part of which you gave me, is that
he would like to have that information on the subject of competence, which is interesting
because he’s saying, I’d like to have further information. But he’s saying, by the way,
he’s not presently competent. So I don’t understand how he can say both of those things
at the same time because they’re mutually inconsistent. But I’m prepared to sign the
MRI order.”
The trial court then summarized its reasoning regarding the competency issue:
“[W]e might as well put our cards on the table here. There’s two [sic] issues here.
Number one is, I was dealing with Mr. Vela for a very long time while he represented
4
At this point, defense counsel showed the trial court page 5 of Argun’s
confidential report.
5
“Well, the main concern that I have is . . . that he has provided information that
was not requested. And so the court, based upon that document, is not going to join in
the declaration of doubt.”
7
himself, and I didn’t see anything about Mr. Vela that indicated any lack of competence.
That’s number one. [¶] Number two; that doesn’t mean that something hasn’t recently
developed. [¶] But number three, and most disturbing, Argun was not appointed for the
opinion that he rendered, and I don’t know that he would have conducted the examination
the same way. So it’s like he’s volunteering information. [¶] That’s why I’m not joining
in the declaration right now. That’s exactly the reason I’m not doing it, because I just am
not relying on that report. I appreciate that counsel is doing it for obvious reasons, but
that doesn’t mean the court has to join just because defense counsel says so.”
At the next hearing, the trial court appointed two other mental health professionals
to examine Vela. Defense counsel asked for the appointment of Dr. Rebecca Crandall,
and the prosecutor asked for the appointment of Dr. Marc Cohen.
Dr. Crandall subsequently reported to the trial court that Vela “was not
cooperative with my interview. He withheld information and had a petulant attitude.
There were no signs of significant mental illness during the interview. I was unable to
accurately assess his competency to stand trial due to his noncooperation, which was
voluntary and not the product of mental illness.” Dr. Crandall noted Vela “does not have
a documented mental health history. He has never taken psychiatric medication. During
my clinical interview, he . . . tried to appear more impaired than he actually is. . . . It was
evident . . . he understood concepts of evidence and witnesses as well as the roles of the
court personnel. His behavior suggested malingering in order to interfere with the court
proceedings. I was unable to make an accurate assessment of his competency to stand
trial due to his lack of cooperation, which was voluntary. There was no indication that he
was suffering mental illness that would impair his ability to understand his legal
proceedings or to assist his attorney in forming a defense.”
Dr. Cohen also believed Vela was malingering. Dr. Cohen said Vela’s
“presentation was consistent with an individual attempting to feign memory impairment
and is not consistent with any known mental illness.” “Mr. Vela’s thought process was
linear and logical when he chose to respond to the question asked. . . . [He was] evasive
and vague when he was asked to speak about seemingly benign details, such as his
8
upbringing, and there was a noticeable pause in the time it took for Mr. Vela to reply to
basic questions, such as his date of birth. Individuals attempting to simulate mental
illness will frequently employ long pauses and answer questions in a noncommittal and
equivocal manner. . . . In summary, Mr. Vela’s presentation was consistent with an
individual attempting to feign mental illness, in particular severe cognitive impairment.”
Cohen concluded Vela “does not require[ ] psychiatric treatment at the present time,” was
competent to stand trial, and “was clearly attempting to simulate a mental disorder.”
After considering these two new medical reports, the trial court again declined to
declare a doubt as to Vela’s competency: “Both mental health professionals have
rendered the same opinion, which is that there is no issue of the defendant’s present
competence as defined in the Penal Code. The Court did not declare a doubt in this
matter previously, and the opinions of the two doctors now confirm the court’s action in
not declaring a doubt.”
c. Discussion.
Vela argues Dr. Argun’s report constituted substantial evidence he was
incompetent to stand trial and, therefore, it was improper for the trial court to seek further
medical opinion before reaching a decision because “this was precisely the course of
action that was disapproved in [People v. Pennington (1967) 66 Cal. 2d 508].” As the
Attorney General points out, however, Pennington said the substantial evidence test was
met if a mental health professional “who has had sufficient opportunity to examine the
accused, states under oath” the defendant is incompetent. (Id. at p. 519, italics added.)
Argun’s report had not been made under oath.
In response, Vela cites People v. Tomas (1977) 74 Cal. App. 3d 75, an opinion
which appears to dispense with the “under oath” requirement. The Attorney General, in
turn, argues: “[T]o the extent Tomas holds that a single unsworn medical report may
constitute substantial evidence of mental incompetence triggering a formal competency
hearing, the holding appears to be incorrect and contravenes . . . California Supreme
Court precedent . . . . In that regard, Tomas was wrongly decided and should not be
followed.”
9
The “under oath” requirement set forth in Pennington has been stated again and
again by our Supreme Court, most recently in People v. Sattiewhite (2014) 59 Cal. 4th
446, 465, italics added: “ ‘[I]f a qualified mental health expert who has examined the
defendant “ ‘states under oath with particularity that in his professional opinion the
accused is, because of mental illness, incapable of understanding the purpose or nature of
the criminal proceedings being taken against him or is incapable of assisting in his
defense or cooperating with counsel,’ ” that is substantial evidence of incompetence.’
[Citation.]” (Accord People v. Lewis (2008) 43 Cal. 4th 415, 525, disapproved on other
grounds in People v. Black (2014) 58 Cal. 4th 912, 919; People v. Lewis and Oliver
(2006) 39 Cal. 4th 970, 1047; People v. Welch (1999) 20 Cal. 4th 701, 738.) Vela argues
this “under oath” element is merely dicta, repeated again and again but never actually
relied on for the holding in any case. But even if that assertion is correct, it is well-
established that “[d]icta from the California Supreme Court is highly persuasive and
should generally be followed.” (City of San Diego v. Shapiro (2014) 228 Cal. App. 4th
756, 781, fn. 24; accord Wechsler v. Superior Court (2014) 224 Cal. App. 4th 384, 393-
394, fn. 2; People v. Gutierrez (2013) 214 Cal. App. 4th 343, 355.)
However, we need not resolve the validity of Tomas because, even assuming
arguendo that Argun’s report could have qualified as substantial evidence of
incompetency without having been made under oath, we conclude the court did not abuse
its discretion by refusing to order a section 1368 competency hearing. Rather, the trial
court properly asked for, and relied upon, additional medical reports because Argun’s
incompetency finding was less than credible.
It is apparent Argun himself believed his incompetency finding was a tentative and
preliminary conclusion, and that further diagnostic work needed to be done. At the top of
page 5, following a capitalized and bold heading entitled “Diagnosis,” the first paragraph
(which itself is bolded, but not capitalized) reads, in part: “Further diagnostic and
historical work are necessary to come to a diagnostic clarity. The results were mixed.
Objective tests were invalid, suggesting possible malingering. . . . Diagnostic
impressions are tentative at this point.” At the bottom of page 5, beneath a second
10
heading (bold, but not capitalized) entitled “Clinical Forensic Issues,” there are the
following two sentences, which are neither bold nor capitalized: “The defendant is
suffering from mental, neuro psychological and medical conditions. He is not competent
to stand trial at this time.” Hence, although page 5 of Argun’s report includes a statement
that Vela is presently incompetent, the statement taken in context demonstrates this was
just a tentative diagnostic impression and that Argun recognized he needed to rule out
“possible malingering” by Vela.
In People v. Lewis, supra, 39 Cal. 4th 970, the trial court disregarded a medical
finding of incompetency, saying: “I found Dr. Davis to be less than credible and I have
no confidence in his conclusion.” (Id. at p. 1047.) Our Supreme Court affirmed this
ruling: “[T]he trial court did not err in finding no substantial evidence of mental
incompetence and no reason to suspend the criminal proceedings. . . . [¶] Lewis suggests
. . . the testimony of Dr. Davis compels a contrary result. We disagree. The trial court
found such evidence to be ‘less than credible.’ Moreover, independent of both its doubts
about Dr. Davis’s credibility and the contrary testimony of other experts, the court could
conclude that Davis's opinion did not satisfy the substantial-evidence standard described
above. [¶] Specifically, the record supports the court’s view that Dr. Davis’s opinion
was ‘pre-fixed.’ . . . Moreover, Dr. Davis conceded that his conclusion regarding Lewis’s
competence was tentative and not definitive. The psychiatrist volunteered that ‘what may
be crucial matter . . . for final psychiatric diagnosis’ was lacking.” (Id. at pp. 1047-1048.)
Vela rightly notes the trial court here seemed chiefly concerned with the fact
Argun had not been appointed to examine Vela on the issue of competency to stand trial.
However, the trial court also discussed the inconsistency between Argun’s asserted
incompetency finding and his stated need for more information. In any event, we review
the trial court’s ruling, not its reasoning, and we will affirm if the ruling was correct on
any ground. (See People v. Zapien (1993) 4 Cal. 4th 929, 976 [“ ‘ “No rule of decision is
better or more firmly established by authority, nor one resting upon a sounder basis of
reason and propriety, than that a ruling or decision, itself correct in law, will not be
disturbed on appeal merely because given for a wrong reason. If right upon any theory of
11
the law applicable to the case, it must be sustained regardless of the considerations which
may have moved the trial court to its conclusion.” ’ ”].)
Because the single, unsigned page of Argun’s report shown to the trial court was
manifestly a preliminary, tentative medical opinion, the trial court was justified in
seeking other medical reports before deciding whether or not to declare a doubt regarding
Vela’s competency. The trial court was further justified in refusing to declare a doubt as
to Vela’s competency when both additional reports found evidence that Vela was
malingering. Hence, the trial court did not abuse its discretion by refusing to hold a
competency hearing. (See People v. Ramos, supra, 34 Cal.4th at pp. 507-508.)
2. Sufficient evidence to support first degree murder conviction.
Vela contends there was insufficient evidence to sustain his conviction for first
degree murder. This claim is meritless.
a. Legal principles.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence – that is, evidence that is reasonable, credible, and of
solid value – such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under
principles of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, 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 beyond a reasonable doubt. [Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of which suggests
guilt and the other innocence [citations], it is the jury, not the appellate court[,] which
must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing
12
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v.
Rodriguez (1999) 20 Cal. 4th 1, 11.)
“ ‘An appellate court must accept logical inferences that the [finder of fact] might
have drawn from the circumstantial evidence.’ [Citation.] ‘Before the judgment of the
trial court can be set aside for the insufficiency of the evidence, it must clearly appear
that on no hypothesis whatever is there sufficient substantial evidence to support the
verdict of the [finder of fact].’ [Citation.]” (People v. Sanghera (2006) 139 Cal. App. 4th
1567, 1573.) As our Supreme Court said in People v. Rodriguez, supra, 20 Cal. 4th 1,
while reversing an insufficient evidence finding because the reviewing court had rejected
contrary, but equally logical, inferences the jury might have drawn: “The [Court of
Appeal] majority’s reasoning . . . amounted to nothing more than a different weighing of
the evidence, one the jury might well have considered and rejected. The Attorney
General’s inferences from the evidence were no more inherently speculative than the
majority’s; consequently, the majority erred in substituting its own assessment of the
evidence for that of the jury.” (Id. at p. 12, italics added.)
The various types of premeditation and deliberation evidence have been described
as follows: “The type of evidence which this court has found sufficient to sustain a
finding of premeditation and deliberation falls into three basic categories: (1) facts about
how and what defendant did prior to the actual killing which show that the defendant was
engaged in activity directed toward, and explicable as intended to result in, the killing –
what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior
relationship and/or conduct with the victim from which the jury could reasonably infer a
‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or
(3), would in turn support an inference that the killing was the result of ‘a pre-existing
reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere
unconsidered or rash impulse hastily executed’ [Citation.]; (3) facts about the nature of
the killing from which the jury could infer that the manner of killing was so particular
and exacting that the defendant must have intentionally killed according to a
13
‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the
jury can reasonably infer from facts of type (1) or (2). [¶] Analysis of the cases will
show that this court sustains verdicts of first degree murder typically when there is
evidence of all three types and otherwise requires at least extremely strong evidence
of (1) or evidence of (2) in conjunction with either (1) or (3).” (People v. Anderson
(1968) 70 Cal. 2d 15, 26-27.)
b. Discussion.
Vela contends the trial evidence failed to satisfy the Anderson test. We disagree.
Vela argues there was no motive evidence because he did not have any interaction
whatsoever with Bennett prior to the fight. And while Vela may have had an animus
toward Comstock, the fight in the IHOP parking lot had been between him and Bennett,
and nothing he did was directed at Comstock. But Bennett was Comstock’s companion
that night and there was ample evidence Vela transferred his animosity from Comstock,
who had been rude to him at the bar, to Bennett. There was substantial evidence Vela
had been motivated to kill Bennett because, after being angered by Comstock’s rude
behavior, Vela took offense when Bennett tried to calm him down.
The manner of the killing also tended to show premeditation and deliberation.
“ ‘The process of premeditation and deliberation does not require any extended period of
time. “The true test is not the duration of time as much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated judgment may
be arrived at quickly. . . . ” [Citations.]’ ” (People v. Koontz (2002) 27 Cal. 4th 1041,
1080.) The evidence showed Vela initially attacked Bennett with the lock and chain, and
only after hitting him repeatedly with that weapon did Vela escalate his attack by pulling
out a knife and stabbing the unarmed Bennett in the heart. (See People v. Harris (2008)
43 Cal. 4th 1269, 1287 [that defendant “stabbed [the victim] without provocation directly
in the heart with enough force to penetrate part of a rib and pierce entirely through the
heart” constituted premeditation and deliberation evidence]; People v. Silva (2001)
25 Cal. 4th 345 369 [“The manner of killing – multiple shotgun wounds inflicted on an
14
unarmed and defenseless victim who posed no threat to defendant – is entirely consistent
with a premeditated and deliberate murder.”].)
Vela’s suggestion he might not have premeditated and deliberated because Bennett
triggered a sudden explosion of violence, by saying something terribly disturbing to him,
is not supported by the evidence. Vela asserts there was “uncontradicted evidence [his]
demeanor changed radically at what he thought Mr. Bennett had said and that he spoke
words of disbelief or offense in response to Bennett’s words (‘What, what, what?’ or ‘Are
you trying to be a hero?’)” But the evidence showed Bennett’s words were not
provocative. Lucy testified Bennett was trying “to clear the air” and Comstock testified
Bennett merely asked Vela, “Is everything cool?” Moreover, the evidence showing Vela
had earlier bragged to one of the bouncers that he was in possession of dangerous
weapons tended to show he was hardly in need of inflammatory provocation to become
violent.
Finally, the fact Vela fled the scene after stabbing Bennett and tried to conceal his
weapons tended to establish premeditation and deliberation. (See, e.g., People v. Perez
(1992) 2 Cal. 4th 1117, 1128 [“Additionally, the conduct of defendant after the stabbing
. . . would appear to be inconsistent with a state of mind that would have produced a rash,
impulsive killing.”].)
We conclude there was sufficient evidence to sustain Vela’s first degree murder
conviction.
3. No ineffective assistance of counsel regarding lay opinion testimony.
Vela contends the trial court was ineffective for failing to object to testimony
constituting improper lay opinion evidence. This claim is meritless.
a. Background.
During the prosecutor’s examination of Lucy the following colloquy occurred:
“Q. And when [Vela] pulled the chain out, did he appear to be controlled to you?
“A. Yes.
“Q. In other words . . . knew what he was doing?
“A. Yes.
15
“Q. As he walked and swung the chain at [Bennett], did he appear in control
to you?
“A. Yes.
“Q. When he was punching [Bennett], did he appear to be in control to you?
“A. Yes.
“Q. Did he appear to be focused?
“A. Yes.”
During her examination of Comstock, the prosecutor asked: “During the time of
this fight, did the defendant appear to be in control of what was going on?”, to which
Comstock answered, “Yes.”
b. Legal principles.
A claim of ineffective assistance of counsel based on Strickland v. Washington
(1984) 466 U.S. 668 [104 S. Ct. 2052], has two components: “ ‘First, the defendant must
show that counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’
[Citation.] [¶] To establish ineffectiveness, a ‘defendant must show that counsel’s
representation fell below an objective standard of reasonableness.’ [Citation.] To
establish prejudice he ‘must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ [Citation.]” (Williams v. Taylor (2000) 529 U.S. 362, 390-391.) “[T]he
burden of proof that the defendant must meet in order to establish his entitlement to relief
on an ineffective-assistance claim is preponderance of the evidence.” (People v. Ledesma
(1987) 43 Cal. 3d 171, 218.)
“[I]f the record sheds no light on why counsel acted or failed to act in the
challenged manner, we must reject the claim on appeal unless counsel was asked for an
16
explanation and failed to provide one, or there could be no satisfactory explanation for
counsel’s performance. [Citation.]” (People v. Castillo (1997) 16 Cal. 4th 1009, 1015.)
An appellate court “need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” (Strickland v. Washington, supra, 466 U.S. at p. 697.)
“Where the record shows that the omission or error resulted from an informed
tactical choice within the range of reasonable competence, we have held that the
conviction should be affirmed.” (People v. Bunyard (1988) 45 Cal. 3d 1189, 1215;
see People v. Hillhouse (2002) 27 Cal. 4th 469, 502 [“deciding whether to object is
inherently tactical, and the failure to object will rarely establish ineffective assistance”];
People v. Mitcham (1992) 1 Cal. 4th 1027, 1059 [decision whether to put on witnesses is
“matter[] of trial tactics and strategy which a reviewing court generally may not second-
guess”].) “It is not sufficient to allege merely that the attorney’s tactics were poor, or that
the case might have been handled more effectively. [Citations.] [¶] Rather, the
defendant must affirmatively show that the omissions of defense counsel involved a
critical issue, and that the omissions cannot be explained on the basis of any
knowledgeable choice of tactics.” (People v. Floyd (1970) 1 Cal. 3d 694, 709,
disapproved on other grounds by People v. Wheeler (1978) 22 Cal. 3d 258, 287, fn. 36.)
c. Discussion.
Vela contends defense counsel should have objected to this testimony because lay
witnesses may not give opinions about another person’s state of mind. He argues,
“Reasonably competent counsel would have objected to this line of questioning on the
grounds of improper lay opinion, lack of personal knowledge, speculation, and
irrelevance.”
Evidence Code section 800 provides: “If a witness is not testifying as an expert,
his testimony in the form of an opinion is limited to such an opinion as is permitted by
law, including but not limited to an opinion that is: [¶] (a) Rationally based on the
perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.”
“A lay witness may express an opinion based on his or her perception, but only where
17
helpful to a clear understanding of the witness’s testimony [citation], ‘i.e., where the
concrete observations on which the opinion is based cannot otherwise be conveyed.’
[Citation.]” (People v. Hinton (2006) 37 Cal. 4th 839, 889.) “ ‘ “Lay opinion testimony
is admissible . . . as ‘a matter of practical necessity when the matters . . . observed are
too complex or too subtle to enable [the witness] accurately to convey them to court or
jury in any other manner.’ [Citations.]” ’ ” (People v. Chapple (2006) 138 Cal. App. 4th
540, 547.)
Vela asserts “the prosecutor defined the term ‘in control’ as meaning whether
appellant ‘knew what he was doing.’ With that definition, the prosecutor was not seeking
a description of observed behavior but of what appellant was thinking.” He argues:
“[W]hether appellant was committing his assault in a calculated way or as an impulsive,
rash reaction should have been left to the jury. The testimony apart from the questions
about ‘in control’ and ‘knew what he was doing’ was detailed enough to provide a basis
for the jury to formulate its own assessment as to appellant’s state of mind.”
But a percipient witness may offer such an opinion when it is based on personal
observation and it helps to clarify the witness’s testimony. (See, e.g., People v. Chatman
(2006) 38 Cal. 4th 344, 397 [witness who observed defendant kicking high school
custodian was properly allowed to testify that defendant “ ‘seemed to be enjoying it’ ”];
People v. Farnam (2002) 28 Cal. 4th 107, 153 [correctional officer’s testimony that
defendant stood “ ‘in a posture like he was going to start fighting’ ” was “based on his
personal observations that defendant was being ‘very defiant’ about the court order and
physically stood with his hands at his side and left foot forward”].)
Defense counsel was not ineffective for failing to object to this testimony.
18
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, J.*
We concur:
KLEIN, P. J.
ALDRICH, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
19 | 01-03-2023 | 12-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1322562/ | 676 S.E.2d 96 (2009)
Dennis E. BULLARD, M.D. and Wendy W. Bullard, Petitioners,
v.
TALL HOUSE BUILDING COMPANY, INC., a North Carolina Corporation, Respondent.
No. COA08-839.
Court of Appeals of North Carolina.
May 5, 2009.
*98 Troutman Sanders, LLP, by Gary S. Parsons and D. Kyle Deak, Raleigh, for petitioners-appellees.
Patterson Dilthey, LLP by Ronald C. Dilthey, Raleigh and Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Scott Lewis, Wilmington, for respondent-appellant.
STROUD, Judge.
As the trial court ordered further arbitration, the order from which defendants appeal is interlocutory, and we therefore dismiss this appeal.
I. Background
On or about 10 March 2003, Dennis and Wendy Bullard ("the Bullards") entered into a Building Agreement with Tall House Building Company ("Tall House"). The Building Agreement included an arbitration provision which read,
Any claim, controversy or dispute arising out of or related to this Agreement, or the breach thereof, not resolved by mediation, shall be settled by arbitration in accordance with the Construction Industry Arbitration by a panel of three (3) arbitrators, one selected by each party and the third by the two appointed arbitrators, rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof. Prior to arbitration, the parties shall endeavor to resolve their disputes by mediation per Section XIII hereof. Notice of demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Association.
....
A party who files a notice of demand for arbitration must assert in the demand all claims then known to that party on which arbitration is permitted to be demanded. When a party fails to include a claim through oversight, inadvertence or excusable neglect, or when a claim has matured or been acquired subsequently, the arbitrators may permit amendment.
The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
On or about 24 January 2006, the Bullards and Tall House entered into an Arbitration Agreement which read, "The parties agree to submit all disputes to private arbitration in accordance with the Contract for Construction dated March 2003...." On or about 14 February 2006, the Bullards submitted a "Demand for Arbitration" regarding various defects with the house constructed pursuant to the Building Agreement. (Original in all caps.) On or about 4 August 2006, the arbitrators entered an award addressing the issues presented in the Bullards' "Demand for Arbitration[.]" (Original in all caps.)
On or about 19 December 2006, the Bullards filed a "Motion For Partial Vacation of Arbitration Award" with the trial court and a "Demand for Arbitration and/or Amendment to the Original Demand for Arbitration" with the arbitration panel. (Original in all caps.) The Bullards alleged the arbitration award should be partially vacated because of fraudulent concealment and misrepresentations on the part of Tall House which kept them from discovering defects with the floor framing. The Bullards requested that "[i]f Respondent contends that Petitioners are prohibited from litigating the floor framing issues before the arbitration panel" that the trial court "vacate that portion of the arbitration panel's award that addresses flooring issues so as to permit floor framing issues to be heard[.]"
On 19 January 2007, Tall House responded to the Bullards' Motion to Vacate requesting "the Court deny Petitioners' Motion for Vacation of the Arbitration Award in its entirety and allow the Arbitration Panel to whom the parties have agreed to submit this matter to decide on the questions of whether any *99 new claims should be heard[.]" On or about 23 August 2007, the arbitration panel concluded that
[t]he evidence also does not support the contention that respondent concealed any structural defects. In fact, at the hearings before the initial award, it was very clear that there were potential structural problems, and the panel even inquired about those issues. All of the issues addressed in the "new" demand could have been discovered, albeit with some effort, prior to the first round of hearings. The initial award was intendedboth by the panel and the partiesto resolve all issues that were raised or could have been raised at the time. All issues subsequently raised could have been discovered and presented earlier, and are barred by the prior award.
On 15 October 2007 Tall House filed an amendment to its response to the Bullards' motion to vacate. The amendment noted:
1. Subsequent to Petitioners' Motion filed herein on December 19, 2006, seeking an order to vacate a portion of the original Award of the Arbitration Panel dated August 4, 2006, and the Orders of the Panel dated September 21, 2006, and October 25, 2006, the Arbitration Panel conducted an additional hearing on motions and requests of Petitioners' on June 22, 2007, and then issued a final, dispository AWARD dated August 23, 2007....
2. In its four (4) page AWARD, the Arbitration Panel concluded: "The Panel denies any and all other claims for relief presented by Petitioners. All costs of these proceedings shall be taxed equally to the parties."....
On 18 October 2007, the Bullards requested from the trial court
an order (1) confirming in part and vacating in part the August 23, 2007, Arbitration Award rendered in the private arbitration proceeding between parties, and (2) compelling Respondent to arbitrate those issues set forth in Petitioners December 19, 2006, and May 25, 2007, Amended and Supplemental Demands for Arbitration.
On 13 November 2007, Tall House responded to the Bullards' 18 October 2007 request and "respectfully move[d] the Court that the Petitioner's Motion to Vacate in Part and Confirm in Part Arbitration Award and Motion to Compel Arbitration be Denied."
On 27 March 2008, the trial court entered an order regarding the Bullards' motions. On 10 April 2008, the Bullards filed a motion "to correct a clerical mistake" in the trial court order. On 18 April 2008, the trial court amended its order granting the Bullards' "Motion for Partial Vacation of the August 4, 2006, Arbitration Award[,]" "Motion to Vacate in Part and to Confirm in Part the August 23, 2007, Arbitration Award[,]" and "Motion to Compel Arbitration[.]" From the amended order, Tall House appeals.
II. Applicable Law
The parties entered into their Building Agreement which contained a provision requiring arbitration on 10 March 2003. On 24 January 2006, the parties entered into an Arbitration Agreement which controlled the specifics of their arbitration, modifying their Building Agreement, but explicitly stating that the Building Agreement remained "in full force and effect" where it did not conflict with the Arbitration Agreement. In its 18 April 2008 amended order, the trial court referenced and quoted the Revised Uniform Arbitration Act ("RUAA") as the applicable law.
The RUAA is only applicable to agreements to arbitrate "made on or after January 1, 2004" or "made before January 1, 2004, if all parties to the agreement or to the arbitration proceeding agree in a record that this Article applies." N.C. Gen.Stat. § 1-569.3 (2005). Here, the parties have not assigned error to the trial court's use of the RUAA as the applicable law and both parties have also cited the RUAA as applicable law in various documents, including memorandum of law and briefs to this Court. Accordingly, we conclude that the RUAA controls this case.
III. Motion to Dismiss
A. The Parties' Contentions
On 29 July 2008 the Bullards filed a motion to dismiss this appeal. The Bullards argue Tall House's appeal should not be heard pursuant to N.C. Gen.Stat. § 1-569.28(a) which reads,
*100 (a) An appeal may be taken from:
(1) An order denying a motion to compel arbitration;
(2) An order granting a motion to stay arbitration;
(3) An order confirming or denying confirmation of an award;
(4) An order modifying or correcting an award;
(5) An order vacating an award without directing a rehearing; or
(6) A final judgment entered pursuant to this Article.
N.C. Gen.Stat. § 1-569.28(a) (2005). The Bullards argue "N.C.G.S. § 1-569.28(a)(5) expressly provides that an appeal does not lie from an order vacating an award which also directs a rehearing. Rather, the statute permits an immediate appeal only from `an order vacating an award without directing a rehearing.'"
On or about 8 August 2008, Tall House filed a response to the Bullards' motion to dismiss arguing
1. Respondent-appellant's appeal from the trial court's modification of the Arbitration Awards involving the Pyrolave counters is not interlocutory pursuant to G.S. 1-569.28(4).
2. Respondent-appellant's appeal from the remainder of the trial court's Amended Order is not interlocutory pursuant to G.S. 1-569.28(5).
3. In the alternative, if the Court finds the appeal is interlocutory in whole or in part, the Amended Order affects a substantial right and Respondent has the right of immediate appeal.
Both the Bullards and Tall House argue that certain provisions within N.C. Gen.Stat. § 1-569.28(a) apply. The Bullards argue that the trial court vacated an award and directed a rehearing. Tall House argues the trial court modified an award and did not order a rehearing as the hearing the trial court ordered was intended to address new issues which had not yet been considered. We agree in part with Tall House as the trial court did indeed modify an award and did not direct a rehearing, but rather a new hearing; however, we disagree with Tall House that these conclusions render the order appealable.
B. The Bullards' Motion to the Trial Court
The Bullards' motion to the trial court was entitled "MOTION TO VACATE IN PART AND CONFIRM IN PART ARBITRATION AWARD AND MOTION TO COMPEL ARBITRATION[.]" Within the Bullards' motion it requested the trial court:
1. To confirm that portion of the August 23, 2007 Arbitration Award directing Tall House to "pay to Petitioner damages in the amount of Eighty-Eight Thousand Five Hundred and Eighty-Six Dollars ($88,586.00)" for the work associated with the media terrace;
2. To vacate those portions of the August 23, 2007 Arbitration Award:
a. Denying Petitioners relief for the Pyrolave counters;
b. Exercising authority over the December 2006 and May 2007 Arbitration Demands;
c. Concluding that the Panel had authority to decide the arbitrability of the December 2006 and May 2007 Arbitration Demands; and
d. Concluding that the issues presented in the December 2006 and May 2007 Arbitration Demands "... could have been discovered and presented earlier, and are barred by the prior August 4, 2006 Award."
3. To liquidate the Award concerning the countertops and order Respondent to pay to Petitioners the sum of $26,696.40, the value of the countertop it admittedly was ordered to replace but did not replace;
4. To order a new set of arbitrators be empanelled as permitted by G.S. § 1-569.23;
5. To order a hearing before the new panel of arbitrators of the issues presented in the December 2006 and May 2007 Amended and Supplemental Demands for Arbitration, as permitted by G.S. § 1-569.23; and
*101 6. To grant Petitioners such other and further relief as the court shall deem just and proper.
(Bracket omitted.) (Emphasis added.) The above language from the Bullards' motion can best be classified, respectively, as requests to: (1) confirm, (2) vacate, (3) modify, as the Bullards are requesting relief which has not previously been granted, and (4-5) compel arbitration.
C. Trial Court's Order
In the 18 April 2008 amended order the trial court
ORDERED, ADJUDGED, and DECREED [in pertinent part], that:
3. Petitioners' Motion for Partial Vacation of the August 4, 2006, Arbitration Award is hereby granted.
4. Petitioners' Motion to Vacate in Part and to Confirm in Part the August 23, 2007, Arbitration Award is hereby granted.
5. Petitioners' Motion to Compel Arbitration is hereby granted.
6. That portion of the August 23, 2007 Arbitration Award directing Respondent to "pay to Petitioner damages in the amount of Eighty-Eight Thousand Five Hundred and Eighty-Six Dollars ($88,586.00)" for the work associated with the media terrace is hereby confirmed.
7. Petitioners shall have and recover of Respondent the sum of $88,586.00, and the acceptance of those funds on or after the date of entry of this Order shall not be deemed to constitute an abandonment of any challenge by Petitioners to any other provision of the August 4, 2006, or the August 23, 2007, Arbitration Awards.
8. Those portions of the August 23, 2007, Arbitration Award denying Petitioners relief for the Pyrolave counters, exercising authority over the December 2006 and May 2007 Arbitration Demands, concluding that the Panel had authority to decide the arbitrability of the December 2006 and May 2007 Arbitration Demands and concluding that the issues presented in the December 2006 and May 2007 Arbitration Demands "... could have been discovered and presented earlier, and are barred by the prior [August 4, 2006] Award" are hereby vacated.
9. Because the evidence at the June 22, 2007, hearing established without contradiction that Respondent did not complete the work regarding the Pyrolave counters set forth in the August 4, 2006, Arbitration Award, and that the value of the Pyrolave counter that Respondent failed to replace in conformity with that Award was $26,696.40, and because the Panel liquidated the other Completion Item that Respondent failed and refused to complete, the Court hereby liquidates the award regarding the Pyrolave counter in the amount of $26,696.40.
10. Petitioners shall have and recover of Respondent the sum of $26,696.40, and the acceptance of those funds on or after the date of entry of this Order shall not be deemed to constitute an abandonment of any challenge by Petitioners to any other provision of the August 4, 2006, or the August 23, 2007, Arbitration Awards.
11. A new panel of arbitrators shall be empanelled, as permitted by G.S. § 1-569.23, to hear and determine the claims set forth in the December 2006 and May 2007 Arbitration Demands, and that panel of arbitrators shall hear and determine all claims set forth in those demands, under the procedures and terms set forth in the March 10, 2003, Building Agreement.
The trial court's order thus: (6-7) confirmed, (8) vacated, (9-10) modified, as neither arbitration award appealed from provided this relief, and (11) compelled arbitration. Having properly classified the trial court's order, we now turn to the controlling statute.
D. Controlling StatuteN.C. Gen.Stat. § 1-569.28
N.C. Gen.Stat. § 1-569.28(a) allows for an appeal from:
(1) An order denying a motion to compel arbitration;
(2) An order granting a motion to stay arbitration;
*102 (3) An order confirming or denying confirmation of an award;
(4) An order modifying or correcting an award;
(5) An order vacating an award without directing a rehearing; or
(6) A final judgment entered pursuant to this Article.
N.C. Gen.Stat. § 1-569.28(a).
E. Statutory Construction
We first consider the plain language of the statute, and "[w]e rely on the general rule of statutory construction that the inclusion of certain items implies the exclusion of others." New Hanover Child Support v. Rains, ___ N.C.App. ___, ___, 666 S.E.2d 800, 803 (2008) (citation omitted). Therefore, we conclude that the list enumerated in N.C. Gen.Stat. § 1-569.28(a) includes the only possible routes for appeal under the Revised Uniform Arbitration Act. See id. Furthermore, the statute reads that "[a]n appeal may be taken...." See N.C. Gen.Stat. § 1-569.28(a) (emphasis added). "Ordinarily when the word `may' is used in a statute, it will be construed as permissive and not mandatory." In re Hardy, 294 N.C. 90, 97, 240 S.E.2d 367, 372 (1978) (citations omitted). Thus, the orders and judgment enumerated in N.C. Gen.Stat. § 1-569.28(a) are the only situations where an appeal could possibly be taken under the RUAA, though one is not required. See New Hanover Child Support at ___, 666 S.E.2d at 803; In re Hardy at 97, 240 S.E.2d at 372.
F. Analysis
N.C. Gen.Stat. § 1-569.28(a) first allows for an appeal from "[a]n order denying a motion to compel arbitration[.]" N.C. Gen. Stat. § 1-569.28(a)(1). Here, the trial court explicitly granted a motion to compel arbitration. Not only is an order granting a motion to compel arbitration not listed in N.C. Gen. Stat. § 1-569.28(a) as an appealable order, it is explicitly recognized not to have a right of appeal within our case law. Laws v. Horizon Housing, Inc., 137 N.C.App. 770, 771, 529 S.E.2d 695, 696 (2000) (citation and quotation marks omitted) ("[T]here is no immediate right of appeal from an order compelling arbitration.")
N.C. Gen.Stat. § 1-569.28(a) next allows for an appeal from "[a]n order granting a motion to stay arbitration[.]" N.C. Gen.Stat. § 1-569.28(a)(2). No orders or motions regarding a stay of arbitration are applicable to this appeal.
N.C. Gen.Stat. § 1-569.28(a) also allows for an appeal from "[a]n order confirming or denying confirmation of an award[.]" N.C. Gen.Stat. § 1-569.28(a)(3). Here, the trial court confirmed some portions of the 23 August 2003 award.
The trial court also modified an award as it ordered damages to be paid for the Pyrolave counters, which neither previous arbitration award had ordered. N.C. Gen.Stat. § 1-569.28(a) allows for an appeal from "[a]n order modifying or correcting an award[.]" N.C. Gen.Stat. § 1-569.28(a)(4).
N.C. Gen.Stat. § 1-569.28(a)(5) allows for an appeal from "[a]n order vacating an award without directing a rehearing[.]" N.C. Gen. Stat. § 1-569.28(a)(5). The Bullards argue that the trial court vacated an award and directed a rehearing, and thus N.C. Gen.Stat. § 1-569.28(a)(5) is inapplicable. However, the trial court actually vacated an award and compelled a new arbitration to be conducted in front of a new panel of arbitrators. The trial court did not order a rehearing on issues already considered by an arbitration panel, but rather a new hearing, based upon the Bullards' December 2006 and May 2007 arbitration demands, which the arbitration panel on 23 August 2007 refused to consider because they concluded that "[a]ll issues subsequently raised could have been discovered and presented earlier, and are barred by the prior award." Thus, N.C. Gen.Stat. § 1-569.28(a)(5) is applicable as the trial court did vacate "an award without directing a rehearing[.]" N.C. Gen.Stat. § 1-569.28(a)(5).
Lastly, N.C. Gen.Stat. § 1-569.28(a)(6) allows for an appeal from "[a] final judgment entered pursuant to this Article." N.C. Gen. Stat. § 1-569.28(a)(6). As the order before us directs further arbitration, it is not a final judgment, and thus N.C. Gen.Stat. § 1-569.28(a)(6) is not applicable.
*103 In summary, Tall House appeals from an order which has both currently appealable and non-appealable issues. The arbitration statute itself offers us no guidance as to an order such as this one, which contains both provisions which are immediately appealable and provisions which are not immediately appealable. Tall House argues it should be allowed to proceed with its appeal as to the currently appealable issues; however, this is contrary to our well-established case law regarding interlocutory appeals. See, e.g., Duval v. OM Hospitality, LLC, 186 N.C.App. 390, 392, 651 S.E.2d 261, 263 (2007).
A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.
Id. (citation omitted). "An interlocutory order is generally not immediately appealable." Id. (citation omitted).
Nonetheless, in two instances a party is permitted to appeal interlocutory orders. First, a party is permitted to appeal from an interlocutory order when the trial court enters a final judgment as to one or more but fewer than all of the claims or parties and the trial court certifies in the judgment that there is no just reason to delay the appeal. Second, a party is permitted to appeal from an interlocutory order when the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits. Under either of these two circumstances, it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds.
Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994) (citations, quotation marks, and ellipses omitted).
Here, the trial court did not certify its order for immediate appeal; therefore, Tall House must show that the order deprives it of a substantial right which will be jeopardized if an immediate appeal is not permitted. See id. Tall House argues, "The Amended Order contains the trial court's improper vacation of the Awards based on its failure to apply the proper standard of review, which causes significant prejudice to Respondent. Additionally, the potential for multiple inconsistent awards, received only after a significant expense, also affects a substantial right." We disagree.
Tall House first argues that its substantial rights are affected because the trial court vacated portions of the award based upon an improper standard. Tall House contends that
[t]he trial court's failure to apply the correct standard affects a substantial right because Respondent will be forced to undergo a new round of arbitration with a new panel before this Court can correct the Amended Order. The expense associated with the new arbitration and the delay it will cause to Respondent affect a substantial right.
Tall House's second argument is that there is "potential for multiple inconsistent arbitration awards." Tall House again claims the order for a new hearing also affects a substantial right because of "large amounts of money already spent defending the first round of lengthy arbitrations ... and the expected unavoidable and lengthy delays associated with re-arbitrating the issues to a new panel." Thus, both of Tall House's arguments as to impairment of its substantial rights focus on the new arbitration proceeding which was ordered by the trial court.
We first note that N.C. Gen.Stat. § 1-569.28(a) does not permit an immediate appeal of an order compelling arbitration, which is the portion of the order which Tall House cites as the primary cause for impairment of its substantial rights. "A substantial right is one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment." Turner v. Norfolk S. Corp., 137 N.C.App. 138, 142, 526 S.E.2d 666, 670 (2000) (citation and quotation marks omitted). This Court has previously determined that an order *104 compelling arbitration does not deprive a party of a substantial right. See Bluffs, Inc. v. Wysocki, 68 N.C.App. 284, 285, 314 S.E.2d 291, 293 (1984) ("An order compelling the parties to arbitrate is an interlocutory order. We do not believe it affects a substantial right and works an injury to the appellant if not corrected before an appeal from a final judgment."). As to Tall House's second argument regarding inconsistent verdicts, the trial court ordered a new arbitration panel to address only issues which were not addressed in the original arbitration awards, so we do not find that the new award could be inconsistent with the others. Finally, as to any costs or delay associated with the new arbitration hearing, "avoiding the time and expense of trial is not a substantial right justifying immediate appeal." Reid v. Cole, 187 N.C.App. 261, 266-67, 652 S.E.2d 718, 721-22 (2007) (quotation marks omitted) (quoting Lee v. Baxter, 147 N.C.App. 517, 520, 556 S.E.2d 36, 38 (2001)). Based on Reid, we conclude that "avoiding the time and expense of [arbitration] is not a substantial right justifying immediate appeal." Id. We therefore conclude that Tall House has not shown that a substantial right has been impaired. As Tall House's substantial rights have not been affected, we dismiss this appeal.
III. Conclusion
As Tall House has appealed from an interlocutory order which was not certified for immediate appeal and which does not impair a substantial right, we dismiss.
DISMISSED.
Judges CALABRIA and ELMORE concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322564/ | 676 S.E.2d 421 (2009)
In the Interest of O.M.J., a child.
No. A08A1701.
Court of Appeals of Georgia.
March 26, 2009.
Certiorari Denied June 1, 2009.
*423 Good & Lee, Atlanta, Darice Marie Good, San Jose, CA, Hurl R. Taylor Jr., Chicago, IL, for appellant.
Thurbert E. Baker, Atty. Gen., Shalen S. Nelson, Senior Asst. Atty. Gen., Virginia B. Fuller, Asst. Atty. Gen., Cynthia E. Roberts-Emory, for appellee.
BARNES, Judge.
The mother of O.M.J. appeals the order of the Juvenile Court of DeKalb County terminating her parental rights. In addition to contending that the trial court erred in finding clear and convincing evidence of present deprivation, and that the deprivation was likely to continue, the mother maintains that her counsel was ineffective and that the record was replete with omissions resulting in a procedurally flawed process. Upon review, we affirm.
On appeal from a termination order, this Court views the evidence in the light most favorable to the Department and determines whether any rational trier of fact could have found by clear and convincing evidence that the biological parent's rights to custody have been lost. We do not weigh the evidence or determine the credibility of witnesses, but defer to the trial court's factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.
(Footnote omitted.) In the Interest of T.W.O., 283 Ga.App. 771, 643 S.E.2d 255 (2007).
So viewed, the evidence shows that the Dekalb County Department of Family and Children Service ("DFACS") took then-newborn O.M.J. into custody in January 2006 after the mother did not honor her agreement with the hospital to stay with a friend upon her release from the hospital after giving birth. The mother had attempted suicide three times while pregnant, it was opined that she was not "mentally capable and stable enough" to care for the infant, and there was no family placement available for O.M.J. DFACS, thereafter, filed a deprivation petition, and on January 25, 2006, the juvenile court entered a 72-hour detentional hearing order finding O.M.J. deprived because the mother could not provide adequate care and supervision for the infant, and custody with the mother would be detrimental to O.M.J.'s welfare. The juvenile court appointed a lawyer and guardian ad litem to represent the mother.
A reunification case plan was developed for the mother on March 13, 2006 which required that she obtain and maintain housing and a source of income, obtain childcare services, attend and complete parenting classes, participate in individual counseling, receive a psychological assessment and follow the recommendations, cooperate with a parent aide, and assure proper supervision of O.M.J. at all times. The guardian ad litem reported on May 15, 2006 that the "mother denied that she needs medication and that she is mentally unstable." She also reported that the mother had been hospitalized more than 30 times at Georgia Regional Hospital, and that "some of the admissions were voluntary and other were under a 1013 ... due to [the mother's] need for immediate emergency medical care because she was a danger to herself and to the public."[1] The guardian ad litem recommended that DFACS maintain custody of O.M.J. while the mother received mental health treatment.
On March 26, 2006, following a hearing at which the mother was present and represented by counsel, the juvenile court found the child to be deprived because of the mother's mental illness, and entered a concurrent permanency plan of reunification or nonreunification *424 with adoption. On July 10, 2006, the court entered a permanency plan review order in which it noted that the mother had completed parenting classes and had two negative drug screens, but had not secured stable housing, and had not enrolled in anger management classes.
On October 24, 2006, DFACS filed an "intake data sheet" requesting that custody of O.M.J. be extended for one year because of continued deprivation. Following a second permanency planning review hearing held on October 9, 2006, the juvenile court entered an order maintaining legal and physical custody of the child with DFACS, and finding that the permanency plan was now termination of parental rights. On November 9, 2006, DFACS filed a motion for an in-court review requesting that the case be set for an emergency hearing because of the mother's erratic behavior. It was noted in the petition that the mother's visits with the child were not going well because the mother "deteriorates after each visit and had to be 1013 on two occasions. Most recently the provider attempted to 1013 the mother on Wednesday, November 8, 2006, after a visit, due to her erratic behavior, but the mother left the facility before the police arrived."
The visitation report submitted from a clinical social worker from Pathways who worked with the mother included numerous instances of the mother's erratic and unstable behavior. On several occasions the mother appeared suicidal, often lamenting that she "wanted to give up," "was tired," or could not "fight anymore." On one occasion, the social worker was so concerned she called police to meet her at the mother's home after the mother told her that she had taken old prescription medication to help her sleep, and that she "wanted to die." Although taken to Grady Hospital when police arrived, the mother left before getting treatment. On another occasion, the social worker visited the mother and found that she was
actively hallucinating, telling me that her daughter had been with her the entire day and had told her to make some tuna fish. [The mother] was upset because she believed that someone from DFACS had entered her home through a window and taken [O.M.J.] out of the home on this day while she was making tuna fish.... [S]he continued to hallucinate and make references to her desire to die.
The mother was taken to DeKalb Medical Center to be evaluated, but left without receiving treatment. The social worker reported being very concerned about the mother's visits with the child, given her "psychosis and thoughts of harming herself and others" and opined that the mother was "not stable at this time."
The in-court review was held on November 14, 2006 after which the juvenile court ordered that the mother receive an "in-patient psychiatric evaluation ... for a period of 27 days" at Georgia Regional Hospital. The juvenile court reserved ruling on the visitation issue. A permanency plan review hearing was held on December 8, 2006, after which the juvenile court entered an order finding that the mother had completed a psychological evaluation, and was continuing to work on her case plan goals. Visitation was also resumed, but limited to once a week.
On January 22, 2007, the juvenile court granted DFACS's petition for an extension of custody, and on March 14, 2007, DFACS filed a petition to terminate the mother's parental rights. The mother answered, and also filed a motion for partnership parenting, acknowledging that she had a "verifiable mental illness," but requesting that she be allowed to "enter into a contractual arrangement to share parenting" with a family friend.
At the June 4, 2007 termination hearing, the social services manager with DFACS testified that, although the mother had achieved some of her case plan goals, she could not complete her case plan goals of securing independent housing and independently parenting O.M.J. because of her mental illness. She further testified that the child would suffer if returned to the mother because of the mother's inability to put the child's needs first. The clinical social worker at Pathways agreed that the mother failed to pick up cues from the child, and "any time the baby would cry or act agitated, [the mother] would become panicky. And that would lead to her own distress and anxiety."
*425 A psychologist who evaluated the mother in March and August 2006 testified that the mother was diagnosed at 18 with borderline personality disorder and had received social security disability insurance since that time. She was in foster care from the ages of nine to eighteen, after running away because her mother's boyfriend had sexually abused her. Her mother was diagnosed with schizophrenia.
The psychologist also testified that the appellant had "over 300 psychiatric hospitalizations due to self-mutilation, suicide attempts, claiming that she was hearing voices, et cetera." He testified that "[b]orderline personality disorder ... is so difficult to treat because it's a basic deficit and distortions in your basic personality structure and how you interact with people." He further testified that it could not be treated with medication, unlike other mental illnesses, and "one of the essential features here is where I love you now and I hate you tomorrow." He did not recommend reunification of the mother with O.M.J. because the mother lacked "the necessary cognitive resources to be a ... parent to this child." The psychologist also opined that co-parenting, given the mother's mental illness which causes her to alienate the people involved in her life, "would be an absolute recipe for disaster for this baby" because
[t]o move this baby into some kind of a hypothetical situation is an experiment that could be doom[ed] to failure, can also be dooming this baby to a lifetime of mental health and emotional and personality issues. It could be pushing this baby over the edge to a major attachment disorder, which could be associated in the future with drug abuse, poor school functioning, poor social functioning, other mental health problems, delinquency, et cetera.
At the time of the hearing the mother had been living in a housing program for approximately one year. Although O.M.J. could visit, the child was not allowed to stay at the facility. As a requirement of participating in the program, the mother had applied for a section 8 voucher, but it was unclear whether she would be able to obtain housing. The mother testified that there was a four-year waiting list for housing. The mother also testified that she was attending anger management classes, taking her prescribed medication, and was in therapy once a month. The mother acknowledged that she was not trying to "parent" O.M.J. or "bring her home with me," but that she "just want[ed] to stay in [her] daughter's life."
After hearing this testimony and taking judicial notice of its prior orders, the juvenile court orally granted the termination petition and authorized DFACS to pursue adoption for the child. In the July 30, 2007 written order terminating the mother's parental rights the juvenile court found that the mother was
unable to provide a secure, stable and healthy environment for her child due to her unstable mental health [and] ... has failed to establish and maintain independent stable housing and income. She is unable to adequately and independently parent and has failed to develop and maintain a familial bond with the child in a meaningful and supportive manner.
The mother appeals from that order.
The termination of parental rights under OCGA § 15-11-94 involves a two-prong analysis.
In the first prong, the court must decide whether there is present clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-94(a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94(b)(4)(A). In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.
(Punctuation omitted.) In the Interest of R.W., 248 Ga.App. 522, 523-524(1), 546 S.E.2d 882 (2001).
1. The mother first complains that the termination must be reversed because the *426 termination hearing transcript fails to identify speakers and the record is replete with omissions and mistakes.
(a.) With regard to the termination hearing transcript, which fails to identify some of the speakers, the mother's "remedy is in the trial court, not the appellate court." Epps v. State, 168 Ga.App. 79, 80(1), 308 S.E.2d 234 (1983).
When a party to a trial states "the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties, and resolve the difference so as to make the record conform to the truth."
Id., OCGA § 5-6-41(f); see In the Interest of C.C.B., 188 Ga.App. 46(1), 372 S.E.2d 6 (1988).
In this case, although the mother argues that she attempted to supplement the record by leaving a "message with the Clerk of Court ... concerning the record sent to the appellate court," and was told the clerk would not supplement the record, she did not file a motion or seek a hearing pursuant to OCGA § 5-6-41(f). Additionally, the documents attached to her brief that were not included in the record were all filed after the termination and involved visitation or attempts to expedite the termination hearing transcript, none of which is relevant to the issues before us.
(b.) More importantly, with regard to omissions in the termination transcript, the absence of previous hearing transcripts, missing documents, and "un-filed" documents in the record, the mother has not specified how these issues have prejudiced her appeal. As discussed in Division 2, she is bound by the unappealed deprivation findings, and the trial court's determination of present unfitness was based on evidence presented at the termination hearing. Although some of the speakers at the termination hearing are not identified, the witnesses' testimony is clear through context and the mother does not argue that the identity of any specific speaker is critical to the issues on appeal.
The mother also does not argue that the trial court relied on missing evidence, as was the case in In the Interest of D.S., 285 Ga. App. 752, 647 S.E.2d 417 (2007), and In the Interest of D.P., 284 Ga.App. 453, 644 S.E.2d 299 (2007). In D.S., only three people testified at the termination hearing, and two were relatives who had filed the petition. Some of the juvenile court's findings of fact in that case were not supported by any evidence in the record, such as the determination that the parents' mental or emotional health was verifiably deficient, and the order did not specify what prior evidence was considered. In D.P., a deprivation case, the trial court based its finding of deprivation primarily on findings in the detention order, but a transcript of the hearing preceding that order was not included in the record. In this case, to the contrary, the evidence presented at the termination hearing was extensive. Additionally, the mother herself admitted she was incapable of taking care of the child and was not seeking to bring her home with her, but only wanted to "stay in her life."
(c.) Finally, the mother argues that the trial court improperly limited her presentation of evidence by not allowing her witnesses to testify, and that her trial counsel was ineffective for failing to make a legally sufficient proffer. The record shows that the juvenile court judge asked the mother at the termination hearing who her witnesses were and what evidence they would offer. She had five witnesses, and the court heard testimony from two of them. One was the resident manager who testified about the mother's current housing; another was a nurse who worked at Georgia Regional, knew the mother as a patient and friend, and thought the mother could parent her daughter with minimal assistance. Trial counsel proffered that two of the remaining witnesses were people who had known the mother for ten to eighteen years who would testify about their observations of her and the "big changes" she had made in her life, and the third witness was a woman who was willing to adopt the child and allow the mother to remain involved.[2]
*427 DFACS objected to hearing testimony from these three witnesses at the termination hearing, arguing that they would more properly be heard at the dispositional hearing if the mother's parental rights were terminated. The court agreed, and the mother's counsel acquiesced. At the dispositional hearing, a witness testified for the mother that she would be willing to adopt the child, but had not pursued the matter with DFACS.
While the mother is entitled to introduce evidence and be heard on her own behalf, OCGA §§ 15-11-7(a), XX-XX-XXX, in this case she has not described in her appellate brief what the excluded witnesses would have said that would have related to the termination issues. Even if trial counsel had proffered the evidence with more specificity and appellate counsel had argued it, the mother admitted throughout the hearing that she was unable to parent the child alone and was not trying to take her home, but only wanted to remain part of the child's life. In light of that admission, we find no reversible error in the trial court's ruling regarding the mother's witnesses.
2. The mother also contends that the trial court erred in finding clear and convincing evidence of deprivation, and that the deprivation was likely to continue.
(a.) Since the mother did not appeal the juvenile court's orders finding the child deprived, she is bound by that finding for purposes of the termination hearing. See In the Interest of T.P., 270 Ga.App. 700, 704(1), 608 S.E.2d 43 (2004).
(b.) Evidence of the mother's past conduct may be considered in determining whether the deprivation is likely to continue. In the Interest of M.R., 282 Ga.App. 91, 99(1), 637 S.E.2d 743 (2006). Here, despite her good intentions, the mother has never successfully parented O.M.J. alone, and admittedly cannot do so. "The test in determining termination of parental rights is whether the mother, ultimately standing alone, is capable of mastering and utilizing the necessary skills to meet her parenting obligations." (Punctuation and footnote omitted; emphasis in original.) In the Interest of T.W.O., supra 283 Ga.App. at 776(1)(a)(iii), 643 S.E.2d 255 (2007). Here, there was more than clear and convincing evidence that the mother is simply not capable of fulfilling those obligations. One basis for seeking termination is "[a] medically verifiable 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." OCGA § 15-11-94(b)(4)(B)(i).
The mother's failure to stabilize her mental illness, and her continued inability to obtain and maintain stable housing authorized the juvenile court to find that the cause of the deprivation is likely to continue. The record shows that the mother continues to struggle with her mental illness and that she admitted she would be unable to care for O.M.J. if she were returned to her. Ultimately, "the trial court must determine whether a parent's conduct warrants hope of rehabilitation, not an appellate court." (Citation and punctuation omitted.) In the Interest of G.B., 263 Ga.App. 577, 583(1), 588 S.E.2d 779 (2003).
The trial court did not err in finding that O.M.J.'s deprivation was likely to continue.
3. The mother last contends that her trial counsel was ineffective. Regarding this claim, no motion for new trial was filed on her behalf, so no claim of ineffective assistance of counsel was raised in the court below and this issue has not been ruled on. "It is axiomatic that a claim of ineffectiveness of trial counsel must be asserted at `the earliest practicable moment.'" Bailey v. State, 264 Ga. 300, 443 S.E.2d 836 (1994). Here, however, trial counsel filed the notice of appeal, and appellate counsel was not appointed to the case until after the notice of appeal was filed. Thus, the instant appeal is the "earliest practicable moment" that appellate counsel could raise an ineffective assistance claim against trial counsel. However, "when the issue can be decided from the record on appeal, a remand to the trial court for a ruling on this issue would be `wasteful of judicial and legal resources' and `would *428 serve no useful purpose.'" (Citations omitted.) Forsman v. State, 239 Ga.App. 612, 615(8), 521 S.E.2d 410 (1999).
In order to prevail on a claim of ineffective assistance of counsel the mother must show that her counsel's performance was deficient and that the deficient performance was prejudicial to her defense. To meet the first prong of this test, the mother 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.
(Citations and punctuation omitted.) In the Interest of A.H.P., 232 Ga.App. 330, 334(2), 500 S.E.2d 418 (1998).
Here, the mother complains that trial counsel was ineffective for failing to object to inadmissible evidence and hearsay testimony.
[E]ven if the juvenile court did consider hearsay, this will not constitute reversible error if the other evidence introduced at the termination hearing, excluding the hearsay, supports the juvenile court's findings and conclusions. Moreover, in a nonjury trial, we must presume that the court is able to select and consider the properly presented evidence and dismiss the remainder. This court will reverse the court below only if no legal evidence supports the lower court's ruling.
(Citations omitted.) In the Interest of E.G., 284 Ga.App. 524, 531(3), 644 S.E.2d 339 (2007).
Under these circumstances a rational trier of fact could have found that the mother's rights should be terminated, and sufficient legal evidence supports the ruling. Thus, we affirm the juvenile court's decision.
Judgment affirmed.
JOHNSON, P.J., and PHIPPS, J., concur.
NOTES
[1] "1013" apparently refers to an Emergency Physician's Certificate authorizing an involuntary commitment.
[2] Because these witnesses were present and available to testify, trial counsel's proffer to the court was sufficient. See Dickens v. State, 280 Ga. 320, 323(2), n. 3, 627 S.E.2d 587 (2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322566/ | JOSEPH M. WILLIAMS, Plaintiff,
v.
RICHARD D. KANE, M.D., Defendant.
No. COA08-1369.
Court of Appeals of North Carolina.
Filed May 19, 2009.
This case not for publication
Joseph M. Williams, pro se plaintiff-appellant.
Walker, Allen, Grice, Ammons & Foy, L.L.P., by Amanda M. Wells, for defendant-appellee.
BRYANT, Judge.
Joseph M. Williams (plaintiff) appeals from an order entered 14 March 2008 dismissing plaintiff's action with prejudice. Plaintiff also appeals from orders entered 11 June 2008 denying his motions for new trial or to alter or amend judgment and motions for directed verdict and judgment notwithstanding the verdict; granting defendant's motions to quash subpoenas; granting defendant's motion for attorney's fees and related costs; and denying plaintiff's motion for recusal.
Facts
On 5 May 2003, plaintiff filed a pro se medical malpractice action in Durham County. Plaintiff sought the assistance of Dr.Richard Kane (defendant) to review medical documents on his behalf and determine whether a standard of care had been violated. Defendant reviewed the documents but did not reach a determinative conclusion as to whether a standard of care was actually violated. Plaintiff filed a voluntary dismissal without prejudice on 11 February 2004. Plaintiff re-filed the medical malpractice action on 9 February 2005. After re-filing the action, plaintiff requested that defendant verify responses to Rule 9(j) interrogatories. Defendant refused to verify the responses to interrogatories unless plaintiff was represented by counsel. Plaintiff's complaint was subsequently dismissed for failure to comply with Rule 9(j).
Plaintiff thereafter filed a complaint against defendant. On 5 October 2006, the trial court entered an order upon defendant's Motion for Prosecution Bond and ordered plaintiff to pay to the Wake County Clerk of Superior Court the sum of $200.00. Due to plaintiff's failure to pay the bond, defendant filed a motion to dismiss pursuant to N.C. Gen. Stat. § 1-109. On 17 November 2006, prior to the hearing on defendant's motion to dismiss, plaintiff entered a voluntary dismissal without prejudice. Plaintiff re-filed this action on 15 November 2007. On 28 December 2007, defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure and an alternative Motion for Prosecution Bond. The trial court entered an order 14 March 2008 granting defendant's motion to dismiss. In response, on 15 March 2008 plaintiff filed a motion for new trial or to alter or amend the judgment; motion for directed verdict or judgment notwithstanding the verdict; and motion for recusal. Defendant filed a motion for sanctions on 8 April 2008. On 17 April 2008, defendant filed an objection to plaintiff's subpoenas filed 14 April 2008 and a motion to quash the subpoenas. On 11 June 2008, the trial court entered separate orders addressing each of the parties' motions. The trial court denied plaintiff's motion for new trial or to alter or amend judgment and plaintiff's motion for directed verdict or judgment not withstanding the verdict. The trial court granted defendant's motion to quash plaintiff's subpoenas, granted defendant's motion for attorney's fees, and denied plaintiff's motion for recusal. Plaintiff appeals.
On appeal, plaintiff argues the trial court erred by: (I) granting defendant's motion to dismiss; (II) denying plaintiff's motion for new trial; (III) granting defendant's motion to quash; and (IV) granting defendant's motion for attorney's fees.
I
Plaintiff argues the trial court erred by granting defendant's motion to dismiss. Specifically, plaintiff argues the trial court lacked jurisdiction to dismiss the present action because plaintiff had taken a voluntary dismissal of the case in which the defect occurred. We disagree.
Pursuant to N.C. Gen. Stat. § 1-109: At any time after the issuance of summons, the clerk or judge, upon motion of the defendant, may, upon a showing of good cause, require the plaintiff to do one of the following things and the failure to comply with such order within 30 days from the date thereof shall constitute grounds for dismissal of such civil action or special proceeding:
. . .
(2) Deposit two hundred dollars ($200.00) with him as security to the defendant for these costs, in which event the clerk must give to the plaintiff and defendant all costs which the latter recovers of him in the action.
. . .
N.C.G.S. § 1-109 (2007).
In the present case, plaintiff was ordered on 5 October 2006 to deposit a prosecution bond in the amount of $200.00 with the Wake County Clerk of Superior Court within thirty days. Plaintiff failed to do so. Defendant filed a motion to dismiss on the basis of plaintiff's failure to comply with N.C.G.S. § 1-109. Prior to the hearing on the motion to dismiss, plaintiff filed a voluntary dismissal without prejudice, which plaintiff contends allowed him to take advantage of the "savings provision" of Rule 41. We disagree with plaintiff's contentions and hold the trial court had jurisdiction to dismiss plaintiff's action for failure to comply with the order to pay the prosecution bond.
"[T]he filing of notice of dismissal, while it may terminate adversary proceedings in the case, does not terminate the court's authority to enter orders apportioning and taxing costs pursuant to Rule 41." Sealey v. Grine, 115 N.C. App. 343, 347, 444 S.E.2d 632, 635 (1994) (internal quotation omitted). "[W]here the parties chose to reinstitute the suit and the reinstituted suit was still pending . . . the courts . . . [are] able to order payment of costs." Id. (quoting Ward v. Taylor, 68 N.C. App. 74, 79, 314 S.E.2d 814, 819 (1984)).
"The `costs' to be taxed under N.C. Gen. Stat. § 1A-1, Rule 41(d) against a plaintiff who dismisses an action under Section 1A-1, Rule 41(a), means the costs recoverable in civil actions as delineated in N.C. Gen. Stat. § 7A-305(d)." Id. Costs recoverable in civil actions pursuant to N.C.G.S. § 7A-305(d) include "[p]remiums for surety bonds for prosecution, as authorized by G.S. 1-109." N.C.G.S. § 7A-305(d)(9) (2007).
Rule 41(d) governs dismissals of actions, and provides in pertinent part:
Costs.A plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action unless the action was brought in forma pauperis. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of the costs of the action previously dismissed, unless such previous action was brought in forma pauperis, the court, upon motion of the defendant, shall make an order for the payment of such costs by the plaintiff within 30 days and shall stay the proceedings in the action until the plaintiff has complied with the order. If the plaintiff does not comply with the order, the court shall dismiss the action.
N.C.G.S. § 1A-1, Rule 41(d) (2007). The language of Rule 41(d) "constitutes a mandatory directive to the trial court, and payment of costs taxed in the first action is a mandatory condition precedent to the bringing of a second action on the same claim." Sealey, 115 N.C. App. at 346, 444 S.E.2d at 635 (internal citations and quotations omitted).
In the present case, the "costs" of plaintiff's voluntarily dismissed action included the cost of the prosecution bond as ordered by the trial court. See N.C.G.S. § 7A-305(d)(9). Plaintiff can not avoid costs ordered by the trial court by taking a voluntary dismissal and then re-filing his case. The trial court did not err by granting defendant's motion to dismiss. This assignment of error is overruled.
II, III, IV
As to his remaining arguments, plaintiff fails to make an argument or cite authority in support of his arguments. Therefore, pursuant to N.C.R. App. P. 28(b)(6) (2007), we deem these arguments abandoned and dismiss plaintiff's remaining arguments.
Affirmed in part, dismissed in part.
Judge ELMORE concurs.
Judge STEELMAN concurs in the result by separate opinion.
Report by Rule 30(e).
STEELMAN, Judge, concurring in the result.
I concur in the result reached by the majority but disagree with the reasoning of the opinion.
N.C. Gen. Stat. § 7A-305 enumerates as costs: "Premiums for surety bonds for prosecution, as authorized by G.S. 1-109." N.C. Gen. Stat. § 7A-305(d)(9) (2007). The majority misconstrues this provision to hold that the failure of plaintiff to post a prosecution bond pursuant to N.C. Gen. Stat. § 1-109 somehow constitutes an item of costs supporting the dismissal pursuant to Rule 41(d) of the Rules of Civil Procedure. N.C. Gen. Stat. § 7A-305(d)(9) refers to a party being able to recover any premium paid for a surety bond as costs. There is no evidence in the record that either party paid a surety bond premium in the prior action.
The record would support the dismissal of plaintiff's action under Rule 41(d) for failure to pay costs in the prior action. Defendant filed a motion asserting that he incurred costs of $67.50 for a mediation fee in the prior action. Mediation fees are properly taxed as costs. Priest v. Safety-Kleen Systems, Inc., ___ N.C. App. ___, ___, 663 S.E.2d 351, 353 (2008) (citing Miller v. Forsyth Mem'l Hosp., Inc., 173 N.C. App. 385, 392, 618 S.E.2d 838, 843, aff'd on reh'g, 174 N.C. App. 619, 625 S.E.2d 115 (2005)); see also N.C. Gen. Stat. §§ 7A-305(d)(7), -38.1(k) (2007).
However, the trial court's order did not dismiss plaintiff's action pursuant to Rule 41(d) but rather under Rule 12(b)(6). I would affirm that ruling.
When a plaintiff elects to voluntarily dismiss a medical negligence action, an expert witness for plaintiff is under no obligation to serve as an expert in the refiled action. "[O]nce a plaintiff files a voluntary dismissal under Rule 41(a)(1) of the North Carolina Rules of Civil Procedure, it is as if the suit had never been filed. The refiling of the case within the one-year time limit of the rule begins the case anew for all purposes." Barham v. Hawk, 165 N.C. App. 708, 719, 600 S.E.2d 1, 8 (2004) (citations and quotations omitted), aff'd, 360 N.C. 358, 625 S.E.2d 778 (2006).
Plaintiff's complaint makes no allegation that defendant agreed to serve as an expert in the refiled action, which was filed nearly a year after the first action was dismissed. Plaintiff makes the flawed assumption that since defendant served as his expert in the prior action, he was under a continuing obligation to serve as his expert in the second action. It was plaintiff's responsibility to contact defendant and reach an agreement with him to provide services as an expert witness prior to filing the second action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322568/ | 676 S.E.2d 559 (2009)
STATE of North Carolina
v.
Dennis Allen PALMER, II, Defendant.
No. COA08-633.
Court of Appeals of North Carolina.
May 19, 2009.
*560 Roy Cooper, Attorney General, by Jess D. Mekeel, Assistant Attorney General, and William B. Crumpler, Assistant Attorney General, for the State.
Barnes, Grimes, Bunce & Fraley, PLLC, by Jerry B. Grimes and Shawn L. Fraley, Lexington, for defendant-appellee.
MARTIN, Chief Judge.
On 10 February 2007, defendant Dennis Allen Palmer, II was arrested for willfully operating a motor vehicle while subject to an impairing substance in violation of N.C.G.S. § 20-138.1. On 30 July 2007, defendant filed a pretrial motion in district court in accordance with N.C.G.S. § 20-38.6(a) to suppress "[a]ny evidence of any kind or form obtained pursuant to the interaction of law enforcement and the defendant" at the time of his detention on 10 February. Defendant alleged that the officer lacked reasonable suspicion to detain defendant at the time of the stop of his automobile and lacked probable cause to arrest him.
The Davidson County District Court heard defendant's pretrial motion to suppress and, on 26 September 2007, issued a handwritten preliminary order pursuant to N.C.G.S. § 20-38.6(f) in which it made findings of fact and gave "the parties preliminary notice of its intention to grant [d]efendant's motion to suppress." The court further noted in its preliminary order that the State gave notice of appeal "in open court."
On 27 September 2007, the State filed its "State's Appeal to Superior Court" pursuant to N.C.G.S. § 20-38.7, in which it asserted that "[t]he State gave oral notice of appeal in open court after the hearing," and "further gives written notice of appeal [to the superior court] through this document." On 22 February 2008, the State's appeal was called for hearing in Davidson County Superior Court. At the beginning of the hearing, defendant challenged the State's appeal as not being properly before the court, contending the State did not sufficiently comply with the statutory requirements authorizing it to appeal from the district court's 26 September preliminary order to superior court.
On 3 March 2008, the superior court filed its Order of Dismissal in which it concluded that "[i]t is the State's burden to demonstrate jurisdiction in this matter, and it has failed to do so" because "[t]he State has failed to properly file a motion appealing the indication of the District Court to suppress the evidence in this case as required by [N.C.G.S. §] 15A-951, [N.C.G.S. §] 20-38.7 and [N.C.G.S. §] 15A-1432." The superior court then ordered that "[t]he `appeal' of the State from the decision of the District Criminal Court of Davidson County is hereby void, and the matter is remanded to the District Court for the entry of an order by the District Court Judge that heard the motion to suppress."
*561 The State filed its "Appeal Entries," in an attempt to appeal to this Court from the superior court's order "voiding the State's appeal of the District Court's preliminary determination granting a motion to suppress." On 30 May 2008, the State filed a petition for writ of certiorari. On 19 June 2008, defendant filed a response to the State's petition for writ of certiorari and moved to dismiss the State's appeal.
We must first determine whether this appeal is properly before us. In State v. Fowler, ___ N.C.App. ___, 676 S.E.2d 523 (2009), this Court determined that, after the superior court considers an appeal by the State pursuant to N.C.G.S. § 20-38.7(a), "the superior court must then enter an order remanding the matter to the district court with instructions to finally grant or deny the defendant's pretrial motion" made in accordance with N.C.G.S. § 20-38.6(a), because "the plain language of N.C.G.S. § 20-38.6(f) indicates that the General Assembly intended the district court should enter the final judgment on [such] a ... pretrial motion." Fowler, ___ N.C.App. at ___, 676 S.E.2d at 535. This Court further concluded that the State does not have a present statutory right of appeal to the Appellate Division from "a superior court's interlocutory order which may have the same `effect' of a final order but requires further action for finality." Id. at ___, 676 S.E.2d at 531.
In the present case, on 3 March 2008, the superior court concluded that the State's appeal from the district court's preliminary determination on defendant's motion to suppress was void, and ordered that the matter be remanded to the district court for "entry of a judgment in this matter on the motion to suppress filed by the defendant." It is this 3 March order from which the State attempts to appeal to this Court. However, as we indicated above, the State has no statutory right of appeal from a superior court's interlocutory order remanding a matter to a district court for entry of a final order granting a defendant's pretrial motion to suppress or dismiss in an implied-consent offense case.
Thus, since the State has no statutory right of appeal to this Court from the superior court's 3 March 2008 order, we must grant defendant's motion to dismiss. See id. at ___, 676 S.E.2d at 531 ("[T]he [S]tate's right of appeal in a criminal proceeding is entirely statutory; it had no such right at the common law. [Accordingly, s]tatutes granting a right of appeal to the [S]tate must be strictly construed.") (second, third, and fourth alterations in original) (internal quotation marks omitted). Nevertheless, this Court may issue a writ of certiorari "when no right of appeal from an interlocutory order exists." N.C.R.App. P. 21(a)(1). Having determined that the State has no statutory right of appeal from the superior court's 3 March 2008 order, we exercise our discretion to grant the State's petition for writ of certiorari.
The State contends, and we agree, the superior court erred by concluding that it was "unable to determine that it ha[d] jurisdiction to hear the State's `appeal[,'] as the proper basis for this `appeal' and the [superior c]ourt's jurisdiction to hear an appeal of this matter [wa]s not properly alleged in the State's sole filing in this matter," and that the State's filing was "insufficient as a matter of law to properly appeal the indication made by the District Court Judge concerning his intention to grant the defendant's motion to suppress."
N.C.G.S. § 20-38.6(f) provides, in part: "If the judge preliminarily indicates the [defendant's pretrial] motion [made in accordance with N.C.G.S. § 20-38.6(a)] should be granted, the judge shall not enter a final judgment on the motion until after the State has appealed to superior court or has indicated it does not intend to appeal." N.C. Gen.Stat. § 20-38.6(f) (2007). N.C.G.S. § 20-38.7(a) further provides: "The State may appeal to superior court any district court preliminary determination granting a motion to suppress or dismiss. ... Any further appeal shall be governed by Article 90 of Chapter 15A of the General Statutes." N.C. Gen.Stat. § 20-38.7(a) (2007). However, neither these provisions, nor the remaining provisions of Article 2D of the General Statutes, set forth the procedures with which the State must comply in order to properly give notice of, or *562 perfect, its appeal to superior court pursuant to N.C.G.S. § 20-38.7(a) from a district court's preliminary determination indicating that it intends to grant a defendant's pretrial motion to suppress or dismiss.
Nevertheless, "where a statute regulating appeals to the Superior Court does not prescribe any rules, the courts may look to other general statutes regulating appeals in analogous cases and give them such application as the particular case and the language of the statute may warrant." Summerell v. Chilean Nitrate Sales Corp., 218 N.C. 451, 453, 11 S.E.2d 304, 306 (1940). In doing so, it is essential that the courts "keep[] in view always the intention of the Legislature." Cook v. Vickers, 141 N.C. 101, 107, 53 S.E. 740, 742 (1906).
N.C.G.S. § 15A-1432, entitled "Appeals by State from district court judge," provides, in part:
(a) Unless the rule against double jeopardy prohibits further prosecution, the State may appeal from the district court judge to the superior court:
(1) When there has been a decision or judgment dismissing criminal charges as to one or more counts.
. . . .
(b) When the State appeals pursuant to subsection (a) the appeal is by written motion specifying the basis of the appeal made within 10 days after the entry of the judgment in the district court. The motion must be filed with the clerk and a copy served upon the defendant.
N.C. Gen.Stat. § 15A-1432(a)(1), (b) (2007) (emphasis added). In other words, by enacting subsection (a)(1) of N.C.G.S. § 15A-1432, the General Assembly has conferred upon the State a right of appeal to superior court from a district court's dismissal of criminal charges against a defendant and, in subsection (b), the General Assembly has enumerated the procedures with which the State must comply in order for such an appeal to be heard by the superior court.
It is our opinion that N.C.G.S. § 15A-1432, a statute which was enacted to "create[] a simplified motion practice for the State's appeal in such circumstances," see N.C. Gen. Stat. § 15A-1432 official commentary (2007), and which regulates the appeals by the State to superior court from a district court's final order dismissing criminal charges against a defendant, is analogous to N.C.G.S. § 20-38.7(a), which regulates, in part, the appeals by the State to superior court from a district court's preliminary order indicating that it would grant a defendant's pretrial motions to dismiss or suppress. Thus, we look to the procedures prescribed by N.C.G.S. § 15A-1432(b) as a guide to determine whether the State properly appealed in the present case pursuant to N.C.G.S. § 20-38.7(a). Nevertheless, we are mindful that this Court has already determined that "the General Assembly's decision to refrain from establishing a time by which the State must give notice of appeal [pursuant to N.C.G.S. § 20-38.7(a)] from a district court's preliminary determination indicating that it would grant a defendant's pretrial motion" "does not infringe on a defendant's fundamental right to a speedy trial." Fowler, ___ N.C. App. at ___, 676 S.E.2d at 542; see id. ("[I]n the absence of a statute or rule of court prescribing the time for taking and perfecting an appeal, an appeal must be taken and perfected within a reasonable time. What is a reasonable time must, in all cases, depend upon the circumstances.") (citation and internal quotation marks omitted). Therefore, we decline to engraft upon N.C.G.S. § 20-38.7(a) the ten-day time limit for making an appeal specified in N.C.G.S. § 15A-1432(b). Hence, assuming without deciding that the State's oral notice of appeal in district court failed to give sufficient notice of its appeal to superior court pursuant to N.C.G.S. § 20-38.7(a), we examine only whether the State's written notice of appeal included in the record before us sufficiently conformed with the remaining requirements of N.C.G.S. § 15A-1432(b).
In the present case, as discussed above, the State filed its "State's Appeal to Superior Court" pursuant to N.C.G.S. § 20-38.7. In the caption of this filing, the State included defendant's name and address, as well as the file number referenced in the district court's 26 September 2007 preliminary order. The document further stated that the State "appeals *563 to superior court the district court preliminary determination granting a motion to suppress or dismiss." The State's filing also enumerated the issues raised in defendant's 30 July 2007 pretrial motion to suppress, and recited almost verbatim all of the district court's findings of fact from its 26 September 2007 preliminary determination. The document was signed by the assistant district attorney and dated, "This the 27th day of September, 2007." However, the State's filing did not specify the date of the preliminary determination from which it was appealing.
The reviewing superior court found and concluded that the State was required to have "allege[d], in its motion that the appeal was taken within 10 days of the preliminary indication of the District Court Judge Presiding," and "[t]he document, entitled, `State's Appeal to Superior Court[,'] does not state when this indication or judgment was made by the presiding District Court Judge." Thus, the superior court stated that there was "no basis upon which [the superior court could] determine that jurisdiction to hear an appeal by the State still exists, in that it is not stated when this hearing was conducted, and whether this `appeal' is timely."
However, as discussed above, we have declined to infer that the General Assembly intended to engraft upon N.C.G.S. § 20-38.7(a) the ten-day time limit for making an appeal specified in N.C.G.S. § 15A-1432(b). Accordingly, in light of the information that was included in the State's written motion, we hold the State's appeal sufficiently comported with the remaining requirements of N.C.G.S. § 15A-1432(b), and that the superior court erred by concluding that it was "unable to determine that it ha[d] jurisdiction to hear the State's `appeal[,'] as the proper basis for this `appeal' and the [superior c]ourt's jurisdiction to hear an appeal of this matter [wa]s not properly alleged in the State's sole filing in this matter."
Additionally, a "Certificate of Service by Prosecutor" was included in the record before us which referenced the district court's file number of this matter. This certificate of service indicates that the "State's Appeal to Superior Court" was served by mail on defendant's attorney, is signed by the assistant district attorney, and is dated, "This the 27th day of 2007." The month is not indicated on this certificate of service, and the certificate is not file-stamped by the clerk of court.
The superior court found and concluded that the State's "fail[ure] to indicate a date that the service was perfected, as required by [N.C.G.S. § 15A-951 was] ... insufficient to properly state a date of service as required by this statute," because it could not determine "from the face of the State's sole filing in this matter, that the certificate of service was done properly, or within the time frame required by the law." Although we recognize that the superior court correctly concluded that the State's certificate of service contained a clerical error, defendant does not allege that he was misled or prejudiced in any way by this error. Therefore, we further hold the superior court erred by concluding that the State's error rendered its appeal insufficient as a matter of law, and that the "State's Appeal to Superior Court" was "void" and warranted the superior court's decision to vacate the State's appeal and to remand the matter to the district court to enter a final judgment on defendant's motion to suppress.
Accordingly, we remand this matter to the superior court with instructions to review the district court's 26 September 2007 preliminary determination on defendant's motion to suppress according to the appropriate standard of review. See Fowler, ___ N.C.App. at ___, 676 S.E.2d at 535 ("[T]he district court's findings of fact are binding on the superior court and should be presumed to be supported by competent evidence unless there is a dispute about the findings of fact, in which case the matter must be reviewed by the superior court de novo.") (internal quotation marks omitted).
Remanded.
Judges BRYANT and BEASLEY concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322587/ | 676 S.E.2d 313 (2009)
DEPARTMENT OF TRANSPORTATION, Plaintiff,
v.
MARSTON BAPTIST CHURCH, INC., Defendant.
No. COA08-856.
Court of Appeals of North Carolina.
May 5, 2009.
Attorney General Roy Cooper, by Assistant Attorney General Martin T. McCracken, for plaintiff-appellant.
Cranfill, Sumner, & Hartzog, LLP, by George B. Autry, Jr., Stephanie Hutchins Autry, and Brady W. Wells, Raleigh, for defendant-appellee.
WYNN, Judge.
In this appeal from a $540,000 just compensation award for the eminent domain taking *314 of a church building, the North Carolina Department of Transportation contends that the trial court erred by considering evidence of the estimated cost of a new church. Because expert real estate appraisers are not restricted to any particular method of determining the fair market value of property,[1] we affirm the trial court's decision to allow testimony on the cost of a replacement church building.
This matter concerns property owned by Marston Baptist Church Inc. in the Township of Beaver Dam, Richmond County, North Carolina. In September 2005, the Department of Transportation brought an action to obtain a portion of the land owned by Marston Baptist Church as part of a plan to widen and improve U.S. Highway 1. The plan required the removal of the church's sanctuary, located in the area designated for the right of way. To prevent the interruption of church services, Marston Baptist Church began constructing a new church on the same parcel of land (but not in the area to be taken) before the removal of the existing structure.
At trial, the parties agreed that the Department of Transportation must provide just compensation for the taking of the property but disagreed as to the appropriate amount of compensation. After hearing the evidence, a jury awarded Marston Baptist Church $540,000 in total just compensation. From that award, the Department of Transportation appeals, arguing that the trial court erred by (I) admitting evidence of the cost of reproduction for a new church and (II) making statements to the jury inconsistent with the formula for calculating damages set out in N.C. Gen.Stat. § 136-112 (2007).
I.
The Department of Transportation first argues that it is entitled to a new trial because the trial court erred by allowing testimony on the cost of a replacement church, which was irrelevant to the fair market value of the property and did not assist the jury in its calculation of damages. We disagree.
To be granted a new trial based on improperly admitted evidence, an appellant must establish that "the evidence was inadmissible in law because it was incompetent, immaterial, or irrelevant" and prejudicial to the appellant. Vandervoort v. McKenzie, 117 N.C.App. 152, 163, 450 S.E.2d 491, 497 (1994) (citation omitted). Here, both parties presented evidence of the cost of reproduction of a new church building.
Marston Baptist Church offered the testimony of Jacob Kanoy, Brian Clodfelter, and Claude Smith. Mr. Kanoy, an architect and real estate broker retained to design the replacement church building, testified that any replacement building would not be exactly the same as existing structure due to new building requirements. However, he estimated that the cost of a replacement building was between $486,000 and $583,000. The variation in cost would depend largely on grading, paving, utility extensions, and various additional fixtures. Mr. Clodfelter appeared as an expert witness in residential and commercial construction, opining that it would cost approximately $542,212 to build a replacement 4500 square foot church. Mr. Smith, qualified as an expert in real estate development and construction costs, estimated the fair market value of the entire tract before the taking, including depreciation, was $600,000, and the fair market value of the property immediately after the taking was $30,000a difference of $570,000.
The Department of Transportation offered the testimony of two real estate appraisers, Elizabeth Hamuka and Michael Avent, who testified to the reproduction cost of the church using the cost approach method. Both relied on Marshall & Swift, a national cost service, to determine the fair market value of the land immediately before and after the taking based on the reproduction cost of the church and site improvements less depreciation. They determined the difference between the fair market value of the property before and after the taking to be $172,300 and $221,150 respectively.
N.C. Gen.Stat. § 136-112 states that a jury shall apply the following measure of damages: *315 "the difference between the fair market value of the entire tract immediately prior to said taking and the fair market value of the remainder immediately after said taking, with consideration being given to any special or general benefits resulting from the utilization of the part taken for highway purposes." In Board of Transportation v. Jones, our Supreme Court noted that section 136-112 "speaks only to the exclusive measure of damages to be employed by the `commissioners, jury or judge'" and does not apply to real estate appraisers. Jones, 297 N.C. at 438, 255 S.E.2d at 187; see also Duke Power Co. v. Mom "n" Pops Ham House, Inc., 43 N.C.App. 308, 312, 258 S.E.2d 815, 819 (1979) (noting that expert real estate appraisers "should be given latitude in determining the value of property"). Thus, the Court held that expert real estate appraisers are not restricted to any particular method of determining the fair market value of property, either before or after condemnation. Id. at 438, 255 S.E.2d at 187.
Additionally, in Redevelopment Comm. v. Denny Roll & Panel Co., 273 N.C. 368, 370, 159 S.E.2d 861, 863 (1968), our Supreme Court outlined "the three standard approaches" for determining the fair market value of real property in takings cases: the cost approach, the income approach, and the market comparison approach. The Court explicitly stated, "[T]he cost approach involves a determination of the fair market value of the (vacant) land, the cost of reproduction of the buildings or replacement thereof by new buildings of modern design and materials less depreciation[.]" Id. at 370-71, 159 S.E.2d at 863.
In light of our existing statutory and case law, we hold that the trial court properly allowed testimony on the cost of reproduction for a replacement church building. Indeed, both parties presented such evidence in this case. In our view, such testimony was proper and directly relevant to the determination of the property's fair market value immediately before and after the taking. Accordingly, we reject this assignment of error.
II.
The Department of Transportation next argues that the trial court's statements to the jury were inconsistent with the formula for calculating damages set out in N.C. Gen.Stat. § 136-112. The Department of Transportation further contends that the statements were misleading, causing the jury to rely on factors other than the fair market value of the property immediately before and after the taking in awarding damages. We disagree.
We review a jury charge by considering it contextually and in its entirety. A jury instruction is sufficient "if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed." Bass v. Johnson, 149 N.C.App. 152, 160, 560 S.E.2d 841, 847 (2002) (internal quotation marks and citation omitted). Further, "`[t]he appealing party must show not only that error occurred in the jury instructions but also that such error was likely, in light of the entire charge, to mislead the jury.'" Arndt v. First Union Nat'l Bank, 170 N.C.App. 518, 525, 613 S.E.2d 274, 279 (2005) (quoting Estate of Hendrickson v. Genesis Health Venture, Inc., 151 N.C.App. 139, 151, 565 S.E.2d 254, 262 (2002)) (emphasis added).
Here, the trial court's instructions to the jury included the following statement:
Consideration may be given not only to the value peculiar to the church, but also to the cost to cure, to wit, the replacement cost of the church minus any depreciation, deterioration or other relevant facts you find from the evidence in determining the fair market value of the property and what amount of just compensation to award.
The Department of Transportation argues that this statement misled the jury to base its verdict on the "peculiar" value of the property rather than the difference between the fair market value of the property immediately before and after the taking. Although the language "the value peculiar to the church" would likely be problematic in isolation, we find the jury instructions, when viewed contextually and in their entirety, to be without error.
Here, the trial court instructed the jury on the correct statutory calculation for damages *316 under N.C. Gen.Stat. § 136-112. At three different points during the instruction, the trial court stated to the jury that "[t]he measure of just compensation, where part of a tract is taken, is the difference between the fair market value of the entire tract immediately before the taking and the fair market value of the remainder of the tract immediately after the taking." Further, the trial court also instructed the jury that it was not required to accept the amount of damages presented by any of the experts or parties involved. Taken in its entirety and in light of the trial court's repeated use of the proper calculation of damages throughout its instructions, we hold that the isolated statement of "value peculiar to the church" was likely not misleading, and does not warrant this Court's invalidation of the jury award to Marston Baptist Church.
No error.
Chief Judge MARTIN and Judge ERVIN concur.
NOTES
[1] Board of Transportation v. Jones, 297 N.C. 436, 438, 255 S.E.2d 185, 187 (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322591/ | 676 S.E.2d 436 (2009)
HUBERT
v.
The STATE.
No. A08A2318.
Court of Appeals of Georgia.
March 26, 2009.
*438 Angela Moore-Brown, Marietta, for appellant.
Patrick H. Head, Dist. Atty., Maurice Brown, John R. Edwards, Asst. Dist. Attys., for appellee.
BERNES, Judge.
Anthony L. Hubert appeals from his conviction on incest and four counts of child *439 molestation. Hubert challenges the sufficiency of the evidence supporting his conviction and asserts that the trial court erred in denying his motion for directed verdict. He also argues that the trial court erred by forcing him to decide whether to withdraw his speedy trial demand or proceed to trial on the day that his case was called; by admitting a state's witness as an expert in forensic child interviews over his objection; and by ordering his trial counsel to move for directed verdict prior to the close of the state's case. Hubert further contends that the trial court's conduct during the trial indicated an undue bias against the defense and that he was denied the right to a fair trial due to juror misconduct. Finally, in several enumerations of error, Hubert asserts that he received ineffective assistance of counsel. We find no error and affirm.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury verdict. Sullivan v. State, 295 Ga.App. 145, 671 S.E.2d 180 (2008). So viewed, the evidence presented at trial showed that Hubert is the father of the two victims, S.H. and Sh.H. In July 2006, S.H., then 14 years old, revealed to her dance teacher that Hubert had been sexually molesting her. Sh.H., then 13 years old, was present during her sister's outcry and told the dance teacher that she had also been sexually molested by Hubert. After discovering that the girls had not told their mother about Hubert and were reluctant to do so, the dance teacher encouraged S.H. to write a letter detailing the abuse and suggested that they give it to her mother together. Approximately a week and a half later, the dance teacher met with the girls and their mother, at which time S.H. presented her mother with the letter. The mother contacted law enforcement and an investigation ensued.
S.H. revealed in a recorded police interview, and later testified at trial, that Hubert started committing sexual acts against her when she was seven years old and he continued to do so until she was twelve years old. The abuse occurred in their family home and consisted of inappropriate touching and sexual intercourse. A video recording of the interview was played for the jury.
Sh.H. also gave a recorded police interview and testified at trial. She disclosed several incidents during which Hubert entered the bathroom as she showered and touched her "whole body," including her breasts and vagina. Sh.H. was in the fifth grade and this abuse occurred in their family home. A video recording of her interview was also played for the jury.
In addition to the above evidence, the jury heard testimony from a licensed clinical social worker who was admitted as an expert in child sexual abuse and its effect on children. The expert testified that the children's disclosures and their demeanor during their respective disclosures were consistent with that of children who had been sexually abused. The pediatric nurse practitioner who examined the victims also testified that, although the victims' physical examinations were normal, the results were consistent with their reports of sexual abuse.
1. Contrary to Hubert's assertion, the evidence set forth above was sufficient to authorize any rational juror to find Hubert guilty of the crimes charged beyond a reasonable doubt. See OCGA §§ 16-6-4(a);[1] 16-6-22(a)(1).[2] Indeed, the victims' testimony, standing alone, was sufficient to convict Hubert. See OCGA § 24-4-8 ("The testimony of a single witness is generally sufficient to establish a fact."); Baker v. State, 245 Ga. 657, 665(5), 266 S.E.2d 477 (1980); Keith v. State, 279 Ga.App. 819, 821(2), 632 S.E.2d 669 (2006); Cantrell v. State, 231 Ga.App. 629, 629-630, 500 S.E.2d 386 (1998). It follows that the trial court did not err in denying Hubert's motion for directed verdict.[3]*440 See Hester v. State, 282 Ga. 239, 240(2), 647 S.E.2d 60 (2007) ("[T]he standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction.").
2. Hubert next asserts that the trial court "forced [him] to make a Hobson's choice" by requiring him to decide whether he desired to proceed to trial on the day his case was called. He contends that the trial court effectively prevented him from withdrawing his demand for speedy trial and requesting a continuance. Hubert's assertion is not supported by the record and completely lacks merit.
At the motion for new trial hearing, Hubert's trial counsel explained that Hubert wanted a trial quickly and, in accordance with Hubert's wishes, he filed a speedy trial demand. He then filed discovery on the state and, although the state did not delay in responding to the discovery, he received the responses only seven days prior to trial. Hubert's counsel visited Hubert in jail prior to the trial and expressed his belief that the trial court would grant Hubert a continuance based upon the short period of time between his receipt of the state's discovery and the scheduled trial date. See OCGA §§ 17-16-4 (the state must disclose and make available certain discoverable materials no later than ten days prior to trial); 17-16-6 (authorizing the court to grant a continuance when the time limitations set forth in OCGA § 17-16-4 are not met). Hubert and his trial counsel came to the mutual decision to move forward with the trial as scheduled.
Significantly, immediately prior to the commencement of the trial, Hubert's counsel announced to the court that he was ready and thoroughly prepared for trial, although he noted that additional time would allow for additional investigation. He wanted the record to be clear that he was willing to withdraw the speedy trial request and ask the court for a continuance if that was Hubert's desire. When asked pointedly whether he wanted a continuance, Hubert responded "[w]e're ready." The fact that he may regret now making that choice does not afford him the right to a new trial. See Bowe v. State, 288 Ga.App. 376, 379(1), 654 S.E.2d 196 (2007) ("[S]elf-induced error is not grounds for reversal.") (citation, punctuation and footnote omitted).
3. Hubert further argues that the trial court's behavior toward defense counsel during the trial indicated an undue bias and prejudice against the defense and partiality in favor of the state. He contends that the trial judge should have recused himself from the trial. Neither Hubert nor his trial counsel asked the trial judge to recuse himself at any time; therefore, this issue is waived for appeal. See Butts v. State, 273 Ga. 760, 762(3), 546 S.E.2d 472 (2001); Hall v. State, 235 Ga.App. 44, 45-46(2), 508 S.E.2d 703 (1998).
4. Hubert next argues that the trial court erred when it admitted over his objection the interviewing detective as an expert in forensic child interviews. He specifically challenges the trial court's admission of the detective's opinion that during the interview, S.H. appeared to be emotionally traumatized. We disagree.
"An expert witness is anyone who, through training, education, skill, or experience, has particular knowledge that the average juror would not possess concerning questions of science, skill, trade, or the like." (Footnote omitted.) Fielding v. State, 278 Ga. 309, 311(3), 602 S.E.2d 597 (2004). The determination of whether to accept or reject an expert witness rests within the sound discretion of the trial judge, and we will not disturb the trial court's ruling absent a manifest abuse of that discretion. Taylor v. State, 261 Ga. 287, 290(1)(a), 404 S.E.2d 255 (1991).
The detective in this case testified that he was a member of the crimes against children unit of the police department at the time that he interviewed the victims. His training included two special courses designed specifically to teach techniques in interviewing children of sexual abuse. The detective testified *441 that he had investigated between 75 and 100 cases involving children of sex crimes and that he had conducted at least 50 interviews of alleged sexually abused children.
Given the detective's training and experience, the trial court did not abuse its discretion in holding that the detective possessed a greater knowledge and experience in the area of forensic child interviews than that of the average juror and therefore did not err in qualifying the detective as an expert witness. See Thomas v. State, 239 Ga.App. 460, 462-463(3), 521 S.E.2d 397 (1999); Askew v. State, 185 Ga.App. 282, 283-284(5), 363 S.E.2d 844 (1987). Moreover, "[t]estimony regarding the victim's demeanor does not express an impermissible opinion on an ultimate issue of whether the victim was sexually abused." (Citation and punctuation omitted.) Chauncey v. State, 283 Ga.App. 217, 220(3), 641 S.E.2d 229 (2007).
5. Hubert contends that the trial court erred when it ordered him to move for a directed verdict prior to the close of the state's case. As the state prepared to close its case, Hubert's counsel requested a mid-morning recess in order to review certain notes after he finished cross-examining but prior to releasing the state's final witness. The trial court instructed him to make his motion for directed verdict at that time so as to avoid having to send the jury back out of the courtroom immediately after the break. Hubert made no objection to the judge's instruction and acquiesced to his request; therefore, this issue has been waived and is not subject to appellate review. See Agee v. State, 279 Ga. 774, 775(2), 621 S.E.2d 434 (2005).
6. Hubert further asserts that he was denied his sixth amendment right to a fair trial when extrajudicial evidence was allegedly introduced to the jury through juror misconduct. The record does not support Hubert's contention.
One issue presented during the trial dealt with the legal duty of the dance teacher, who was also a school teacher, to report the sexual abuse to the police following S.H.'s outcry. The defense repeatedly emphasized to the jury that Georgia law mandates that a school teacher report instances of abuse once they become known. See OCGA § 19-7-5(c)(1)(H).
During the motion for new trial hearing, the trial court learned that one of the jurors had been present during a conversation between the juror's wife and his daughter, who was discussing an in-service training that she was receiving as a school teacher. That juror testified that early in the trial, prior to the jury's deliberations, he was having a conversation during a jury break with two other jurors, both of whom were school teachers and were aware of the reporting requirements, in which he expressed doubt that his daughter was familiar with her duty to report abuse. One of the jurors to whom that juror spoke testified to the same conversation. A third juror testified that she recalled no conversation regarding mandated reporting requirements during deliberations, and that no juror reported any outside information coming from a family member. Yet a fourth juror testified and stated that he could not really hear the statement made by the juror in question nor could he remember what it was, but he believed that the juror "came up with some clarifications" about the reporting requirements that the juror then incorporated into his deliberations. The fourth juror agreed that the statement was made during a jury break and that it was only heard by a small number of jurors. It is this testimony that Hubert argues warrants him a new trial.
Georgia law prohibits jurors from impeaching their verdict once it has been rendered. OCGA § 17-9-41 ("The affidavits of jurors may be taken to sustain but not to impeach their verdict."). The public policy considerations underlying this rule include the need to preserve the sanctity of juror deliberations, promote the finality of jury verdicts, and protect jurors from post-trial harassment. Watkins v. State, 237 Ga. 678, 683-684, 229 S.E.2d 465 (1976). A very narrow exception to this rule exists when a juror intentionally gathers extra judicial evidence, highly prejudicial to the accused, and communicates that information to the other jurors in the closed jury room. Id. at 685, 229 S.E.2d 465 (reversing a conviction after two *442 jurors made an unauthorized visit to the crime scene and presented their findings to the other members of the jury so as to explain a time lapse in the evidence). But "[t]o set aside a jury verdict solely because of irregular jury conduct, this Court must conclude that the conduct was so prejudicial that the verdict is inherently lacking in due process." (Footnote omitted.) Butler v. State, 270 Ga. 441, 444(2), 511 S.E.2d 180 (1999).
The circumstances presented here do not meet that test. Not only has Hubert failed to establish that the verdict lacks due process, he has neglected to show that any statement by the juror in question amounted to misconduct. The only juror who arguably alleged improper conduct admitted that he could barely hear the statement in question and could not remember what it was. See Butler, 270 Ga. at 445(2), 511 S.E.2d 180 (upholding guilty verdict despite allegations that a juror related extra-judicial information because "there [was] no evidence regarding exactly what that information was or how it related to the jury's deliberations"). To the extent that there was a conflict in the evidence at the new trial hearing, the trial court as the factfinder was entitled to conclude that no outside information was communicated to the jury and we will not second guess such credibility determinations and weighing of the evidence. See Glover v. State, 292 Ga.App. 22, 26(3), 663 S.E.2d 772 (2008).
Moreover, Hubert's counsel questioned the state's witnesses at length about the disclosure requirements, rendering any information that the juror offered from his daughter cumulative at best. See Brown v. State, 275 Ga.App. 281, 283-284(1), 620 S.E.2d 394 (2005) (information alleged to have tainted the jury was cumulative of evidence admitted during the trial). Under these circumstances, the trial court did not abuse its discretion by denying Hubert's motion for new trial on this ground. See Butler, 270 Ga. at 445(2), 511 S.E.2d 180; Brown, 275 Ga.App. at 283-284(1), 620 S.E.2d 394; Stokes v. State, 232 Ga.App. 232, 234(2), 501 S.E.2d 599 (1998).
7. Finally, Hubert argues that his trial counsel rendered ineffective assistance of counsel. Again, we disagree.
To prevail on a claim for ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient, and also that the deficient performance prejudiced his defense. Scruggs v. State, 294 Ga.App. 501, 503, 669 S.E.2d 485 (2008). See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "There is a strong presumption that trial counsel's performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy." (Citation and punctuation omitted.) Williams v. State, 290 Ga.App. 841, 844(4), 660 S.E.2d 740 (2008). Trial counsel's strategic and tactical decisions made throughout the course of the case offer no grounds for reversal on the basis of ineffective assistance. Scruggs, 294 Ga.App. at 503, 669 S.E.2d 485. Hubert enumerates numerous instances which he contends amount to ineffective assistance, each of which we will address in turn.
(a) Hubert first argues that his counsel was ineffective for failing to withdraw his speedy trial demand, request a continuance, or move to exclude evidence due to what Hubert characterizes as untimely discovery responses by the state. Hubert asserts that his counsel did not have sufficient time to prepare his defense as a result of the speedy trial demand.
As set forth fully in Division 2, Hubert made a voluntary and fully informed decision in conjunction with his counsel to proceed to trial. Hubert's counsel stated prior to trial and maintained at the motion for new trial that he was ready and thoroughly prepared for trial. He nonetheless consulted with Hubert and, in part due to Hubert's desire for a quick trial, they mutually agreed to decline the opportunity to seek a continuance and to move forward with the trial as scheduled. Hubert's current assertion that his trial counsel was ineffective for effectuating his desire for a speedy trial lacks merit and affords him no basis for relief. See Woods v. State, 275 Ga. 844, 848(3)(b), 573 S.E.2d 394 (2002); Celestin v. State, 296 Ga.App. 727, 730(2), 675 S.E.2d 480 (2009). Cf. Clark v. State, 271 Ga.App. 534, 537(3), 610 S.E.2d 165 (2005).
*443 Because Hubert failed to ask his trial counsel at the new trial hearing why he declined to otherwise move to exclude the state's evidence as a sanction under OCGA § 17-16-6, he has not overcome the presumption that his trial counsel acted within the range of reasonable, professional conduct. See Locher v. State, 293 Ga.App. 67, 71(2)(b), 666 S.E.2d 468 (2008); Baskin v. State, 267 Ga.App. 711, 713(1)(a), 600 S.E.2d 599 (2004).
(b) Hubert next asserts that he was denied effective assistance of counsel because trial counsel failed to adequately investigate his case and to obtain witnesses favorable to the defense. But Hubert proffered no evidence demonstrating that his counsel lacked preparation, nor did he give any indication of what additional information would have been revealed had his counsel done a more thorough investigation. Instead, Hubert again focuses on the short period of time that his counsel had prior to the commencement of trial and on his counsel's statement to the court that a continuance would allow him to conduct additional investigation.
As set forth in subdivision (a), Hubert cannot now complain about the time constraints that Hubert's speedy trial demand placed on his counsel after they mutually decided not to seek a continuance.
Having declined to withdraw his speedy trial demand, [Hubert] cannot now complain that his attorney proceeded to trial without conducting a lengthier investigation of his case. Counsel's strategic decision to proceed to trial, made after consultation with [Hubert], is not subject to second-guessing by this Court.
Celestin, 296 Ga.App. at 731(2), 675 S.E.2d 480. While Hubert's counsel did acknowledge to the court that he could benefit from additional time, he also stated prior to trial and again during the motion for new trial hearing that he was thoroughly prepared to try Hubert's case.
And although Hubert now asserts that trial counsel should have called his son as a witness and obtained an expert to rebut the state's evidence, he failed to make any proffer of the witnesses' expected testimony and thus has not met his burden of demonstrating that the testimony would have been favorable and that it would have created a reasonable probability of a different outcome at trial. See Duvall v. State, 273 Ga.App. 143, 145-146(3)(b), 614 S.E.2d 234 (2005); Stevenson v. State, 272 Ga.App. 335, 341-342(3)(c), 612 S.E.2d 521 (2005).
(c) Hubert argues that his counsel was ineffective because he failed to object to expert opinion testimony that Hubert asserts went to the ultimate issue in the case. Expert testimony that explicitly or implicitly goes to the ultimate issue to be decided by the jury, when that issue is not beyond the ken of the average juror, is inadmissible. See Odom v. State, 243 Ga.App. 227, 228(1), 531 S.E.2d 207 (2000).
(i) Hubert challenges the pediatric nurse practitioner's testimony that the victims' physical examinations were consistent with their reports of sexual abuse. Georgia law is well established that an expert may express an opinion "as to whether medical or other objective evidence in the case is consistent with the victim's story." (emphasis omitted.) Harris v. State, 279 Ga.App. 570, 571(1), 631 S.E.2d 772 (2006). See Noe v. State, 287 Ga.App. 728, 730(1), 652 S.E.2d 620 (2007); Atkins v. State, 243 Ga.App. 489, 490-491(2), 533 S.E.2d 152 (2000). Compare Putnam v. State, 231 Ga.App. 190, 191-192(2), 498 S.E.2d 340 (1998) (expert opinion testimony as to whether victim is telling the truth invades the province of the jury and is improper). In this case, the trial court accepted the pediatric nurse practitioner as an expert in recognizing physical signs of abuse in children. It follows that her opinion testimony that the physical examinations that she conducted on the children were consistent with their accounts of sexual abuse was not improper. Noe, 287 Ga.App. at 730(1), 652 S.E.2d 620; Harris, 279 Ga.App. at 571(1), 631 S.E.2d 772; Atkins, 243 Ga.App. at 490-491(2), 533 S.E.2d 152. Because any objection posed by Hubert's counsel to the challenged testimony would have been futile, his failure to object does not amount to ineffective assistance. See Lupoe v. State, 284 Ga. 576, 580(3)(f), 669 S.E.2d 133 (2008); *444 McClain v. State, 284 Ga.App. 187, 190(4)(b), 643 S.E.2d 273 (2007).
(ii) Despite Hubert's allegation that the detective who interviewed the victims opined that the delay in S.H.'s outcry resulted from fear, our review of the record reveals no such statement by the detective and Hubert has given no citation to the record where the statement can be found. We therefore need not address this argument. See Court of Appeals Rule 25(c)(2).
(iii) Hubert contends that his trial counsel should have objected to the licensed clinical social worker's expert opinion that S.H. seemed "shut down" and "dissociative" during the police interview and the expert felt that S.H. "had been terrifically and horribly traumatized because of her affect." Hubert neglected to question his counsel about the statement at the motion for new trial hearing. Consequently, Hubert has failed to overcome the presumption that counsel's decision not to object was tactical. Glass v. State, 255 Ga.App. 390, 403-404(10)(g), 565 S.E.2d 500 (2002).
(d) Hubert argues that his trial counsel's performance was deficient because he failed to move for a recusal of the trial judge.
In certain circumstances, Georgia law mandates that trial judges recuse themselves from matters proceeding before them.
Judges . . . have an ethical duty to disqualify themselves from any matter in which they have a personal bias or prejudice concerning a party or an attorney appearing before them. In this regard, a trial judge shall avoid all impropriety and appearance of impropriety. Our Code of Judicial Conduct provides that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where the judge has a personal bias or prejudice concerning a party or a party's lawyer.
(Punctuation and footnotes omitted.) Johnson v. State, 278 Ga. 344, 347-348(3), 602 S.E.2d 623 (2004). To warrant disqualification, any alleged bias "must be of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court's prejudgment." (Punctuation and footnote omitted.) Phillips v. State, 275 Ga. 595, 600(8), 571 S.E.2d 361 (2002).
(i) Hubert's first complaint involves a comment made by the trial judge during the voir dire of an individual potential juror, but in the presence of several other potential jurors, in which the trial judge noted that, in cases where inappropriate touching has been alleged to have occurred two years prior to any investigation, medical evidence is frequently lacking. At the request of Hubert's counsel, the trial judge then excused every potential juror who was present when the statement was made in order to ensure that his comment had not prejudiced the jury. The trial judge therefore demonstrated his impartiality by acceding to Hubert's concerns and excusing the jurors.
(ii) Hubert next cites a rebuke from the trial judge when Hubert's counsel attempted to dictate the manner in which a state's witness would be sworn. The trial court has broad discretion, however, to prescribe the manner in which the court's business will be conducted and to regulate the conduct of the parties, counsel and witnesses during the course of a trial. See OCGA § 15-1-3(4), (5); Johnson v. State, 254 Ga. 591, 599(11), 331 S.E.2d 578 (1985); Phillips v. State, 278 Ga.App. 439, 443(2)(b), 629 S.E.2d 130 (2006). The trial judge did not exhibit undue bias against the defense by reminding Hubert's counsel that the swearing of witnesses fell within the dominion of the court. See id.
(iii) The most contentious exchange between the trial judge and Hubert's counsel dealt with whether Hubert could recall to the witness stand the detective who conducted the victims' videotaped interviews. After Hubert's counsel subjected the detective to an extensive cross-examination and then refused to release the detective from the subpoena, the trial court informed Hubert's counsel that he would be required to make a proffer of any additional questions that he intended for the detective prior to recalling the witness. See McMichael v. State, 252 Ga. 305, 307(1), 313 S.E.2d 693 (1984) ("[T]he trial court has the power to deny the recall of a witness who testified previously where the testimony to be given by the recalled witness *445 would be repetitious of the witness' earlier testimony."). Hubert's counsel nonetheless called the detective and requested that he return to court without first notifying the trial court of his intention to do so.
Although the dialog that ensued between the trial judge and Hubert's counsel was discordant, the vast majority of it took place outside of the presence of the jury and therefore was not prejudicial. Cf. McClendon v. State, 287 Ga.App. 238, 242(5), 651 S.E.2d 165 (2007) (comments not made in the presence of the jury present no basis for reversal); Miller v. State, 243 Ga.App. 764, 768(15), 533 S.E.2d 787 (2000). None of the judge's comments dealt with Hubert's guilt or innocence. See, e.g., Flantroy v. State, 231 Ga.App. 744, 746(3), 501 S.E.2d 10 (1998). Moreover, Hubert's counsel testified at the new trial hearing and agreed that the trial judge never indicated that he did not like counsel personally; never indicated that he did not like counsel professionally; and never indicated that he had any ill feelings toward Hubert. Finally, and significantly, the trial court ultimately ceded to Hubert's wishes and allowed him to recall the detective. Hubert has thus failed to prove that the exchange illustrated any personal bias or prejudice against Hubert or his attorney by the trial judge. See Phillips, 275 Ga. at 600(8), 571 S.E.2d 361. Compare Johnson, 278 Ga. at 346-349(3), 602 S.E.2d 623 (2004).
(iv) Finally, Hubert complains that the trial judge commented on the relevancy of evidence elicited by his counsel on cross-examination. But the comment came in the context of a ruling sustaining an objection by the state to a question from Hubert's counsel. "It is well established that a judge's remarks made when assigning reasons for rulings are neither an expression of opinion nor a comment on the evidence." (Citation and punctuation omitted.) Gillman v. State, 239 Ga.App. 880, 884-885(4), 522 S.E.2d 284 (1999).
Judgment affirmed.
ANDREWS, P.J., and DOYLE, J., concur.
NOTES
[1] "A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person." OCGA § 16-6-4(a).
[2] "A person commits the offense of incest when the person engages in sexual intercourse with a person to whom he or she knows he or she is related either by blood or by marriage [such as a]... [f]ather and daughter." OCGA § 16-6-22(a)(1).
[3] To the extent that Hubert argues that the state failed to establish venue in Cobb County, Georgia, his argument lacks merit. Both of the victims testified that the sexual abuse occurred in their family home located in Cobb County. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322596/ | 609 S.E.2d 126 (2004)
271 Ga.App. 181
ESI COMPANIES, INC.
v.
FULTON COUNTY.
No. A04A2151.
Court of Appeals of Georgia.
December 30, 2004.
*127 Hendrick, Phillips, Salzman & Flatt, Martin Salzman, Andrew McBride, Bart Reed, Atlanta, for Appellant.
Nicolle Holt, Robert Martin, John Ayoub, Atlanta, for Appellee.
ELDRIDGE, Judge.
ESI Companies, Inc. contracted with Fulton County for the Replacement of Security and Life Safety Systems in the Fulton County Jail ("Jail Project") without the inclusion in the contract price for sales and use taxes, because Fulton County's bid instructions and requirement required the tax exclusion from the bid. When ESI could not get tax exemption status for sales and use taxes and was required to pay such to the State of Georgia, it sought to recover such taxes from Fulton County by this suit. The trial court granted summary judgment to Fulton County. Finding no error, we affirm.
ESI does work in many states where tax exemption of a governmental entity can be assigned to any contractor doing work for such governmental entity. Prior to submitting its bid, ESI did not research the sales and use tax laws of Georgia or contact the Georgia Revenue Department to determine if it could obtain tax exemption, because it relied upon its own experience in other states and practices and customs in the trade from other states. The contract and the bid documents did not give or promise to give ESI tax exemption. The contract was silent as to who would bear the cost of the sales and use tax, but the bid documents instructed all bidders not to include sales and use taxes in their bids. Further, the normal language of this form AIA contract, indicating that the contractor must pay sales and use taxes, was omitted from the form contract. The Bidding Requirements clearly stated "All prices must exclude Georgia State sales taxes and all other taxes unless otherwise specified in writing by Fulton County." The contract *128 gave a fixed price for the work and said nothing about who would pay sales and use taxes under the contract.
ESI submitted its bid without any request for clarification regarding the payment of sales taxes or assignment of a tax exempt status and gave a bid excluding Georgia sales and use taxes. The ESI bid was accepted, and Fulton County drafted the contract. The total contract price was $3,708,000. ESI made no request that the contract state that ESI was not liable for sales tax, that it would be assigned tax exemption, or that it would be indemnified if it had to pay sales and use taxes in performing the contract.
Under Georgia statute, OCGA § 48-8-63, the contractor is treated as the consumer liable for sales and use taxes; even when the state or governmental entity is the actual consumer, the contractor remains liable for such taxes. 1962 Op. Atty. Gen. pp. 559, 560; and 547. Thus, at the time of the bid, all parties were on constructive notice that under Georgia sales and use taxes, there was no tax exemption. OCGA § 48-8-63. "All persons are presumed to know the law." Harry v. Glynn County, 269 Ga. 503, 506(4), 501 S.E.2d 196 (1998); see also Puckett Paving Co. v. Carrier Leasing Corp., 236 Ga. 891, 892, 225 S.E.2d 910 (1976). Thus, ESI submitted its bid under a mistake of law and did nothing to protect itself prior to entering into the contract.
On motion for summary judgment, the trial court admitted parol evidence that ESI contended showed the intent of the parties to exempt ESI from paying sales and use taxes. Such evidence showed that on April 28, 2000, after the contract had been executed, Fulton County issued to ESI what was purported to be a State of Georgia Sales and Use Tax Certificate of Exemption. However, the Georgia Department of Revenue informed ESI upon presentation of the purported Certificate of Exemption that there was no such exemption under Georgia revenue law. Gus Robertson, Fulton County Purchasing Department, testified that prior to the bid submission, Fulton County had modified its forms to change the instructions to bidders to include the taxes in their bid estimates, rather than to exclude taxes. However, Fulton County empowered its purchasing agents with the authority to insert in the instructions to bidders a specific provision directing bidders to exclude taxes from all bids, which was done in this case.
After the contract had been executed and ESI's certificate of exemption was rejected, ESI notified Fulton County that it would be held liable for the added costs for the sales and use taxes that ESI had excluded from its bid at Fulton County's direction.
1. ESI contends that the trial court erred in not finding that ESI was intended by the parties to be exempt from Georgia sales and use taxes under the contract. We do not agree.
(a) The contract documents, i.e., the executed contract and the bidding documents, represented the entire agreement between the parties. Absent any ambiguity on the face of the agreement, the trial court cannot use the rules of contract construction to interpret the agreement between the parties but must enforce the agreement as written. Duffett v. E & W Properties, 208 Ga.App. 484, 486(2), 430 S.E.2d 858 (1993); see generally Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700, 342 S.E.2d 308 (1986). Here, the contract documents are clear and unambiguous that Fulton County would not pay either directly or indirectly Georgia sales and use taxes. Nowhere does either the bidding documents or the contract documents as a whole state that ESI would be exempt from liability for sales and use taxes. From the plain and unambiguous language of the contract documents, it was plain that Fulton County would not pay sales and use taxes; therefore, ESI would be liable for such sales and use taxes. Duffett v. E & W Properties, supra at 486, 430 S.E.2d 858.
Contract construction involves three steps:
[(1)] if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction; [(2)] if ambiguity does appear, the existence or nonexistence of an ambiguity is a question of law for the court[; and (3)] a jury question *129 arises only when there appears to be an ambiguity in the contract which cannot be negated by the court's application of the statutory rules of construction.
(Citation and punctuation omitted.) Thomas v. B & I Lending, 261 Ga.App. 39, 41(1), 581 S.E.2d 631 (2003); accord Duffett v. E. & W. Properties, supra at 486, 430 S.E.2d 858.
The existence or nonexistence of ambiguity in a contract is a matter of law for the court to determine. Cassville-White Assocs. v. Bartow Assocs., 150 Ga.App. 561, 564(3), 258 S.E.2d 175 (1979). Ambiguity in a contract may be defined as duplicity, indistinctness, and uncertainty of meaning or expression. Taylor v. Estes, 85 Ga.App. 716, 718(1), 70 S.E.2d 82 (1952); accord Thomas v. B & I Lending, supra at 41, 581 S.E.2d 631. Where language is susceptible of more than one reasonable understanding, the intent of the parties is to be ascertained. Nat. Manufacture etc. Corp. v. Dekle, 48 Ga.App. 515, 521(1), 173 S.E. 408 (1934). However, "no construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation." R.S. Helms, Inc. v. GST Dev. Co., 135 Ga.App. 845, 848, 219 S.E.2d 458 (1975); see also Thomas v. B & I Lending, supra at 41, 581 S.E.2d 631. In this case, the contract document language was plain and unambiguous, requiring no construction by the court.
(b) Plainly, ESI made a mistake of law in believing that it could obtain a certificate of exemption for sales and use tax from Fulton County that would relieve it as the consumer of the State of Georgia sales and use tax. A contract will not be reformed in equity where one party makes a mistake of law through ignorance or neglect. OCGA § 23-2-27; Atkinson v. Atkinson, 254 Ga. 70, 74(2), 326 S.E.2d 206 (1985); Robbins v. Nat. Bank of Ga., 241 Ga. 538, 544(2), 246 S.E.2d 660 (1978). "The rule is well settled that a simple mistake by a party as to the legal effect of an agreement which he executes, or as to the legal result of an act which he performs, is no ground for either defensive or affirmative relief." (Citation and punctuation omitted.) Robbins v. Nat. Bank of Ga., supra at 544, 246 S.E.2d 660. Here, ESI was negligent prior to submitting its bid in not determining the sales tax law for itself and for not making inquiry to the Georgia Department of Revenue to determine if there was any exemption by assignment from sales and use taxes. OCGA § 23-2-21; Callan Court Co. v. C & S Nat. Bank, 184 Ga. 87, 130(3), 190 S.E. 831 (1937); Frame v. Hunter, Maclean, Exley & Dunn, P.C., 236 Ga.App. 226, 227-228, 511 S.E.2d 585 (1999) (physical precedent only). Thus, this case was brought on the basis of an alleged ambiguity as to who should pay the sales tax, because ESI was barred from any action for equitable reformation of the contract.
(c) Further, ESI seeks to vary the plain meaning of the agreement through parol evidence so that it can be reimbursed for sales and use tax paid, although the contract documents instructed ESI to exclude all sales and use taxes from its successful bid. ESI seeks to introduce parol evidence to vary the terms of the agreement to recoup the sales and use taxes that it paid. The purpose of the parol evidence rule is to bring finality to an agreement, except when ambiguity requires that the language of the contract be explained but not varied. Albany Fed. Sav. & Loan Assn. v. Henderson, 198 Ga. 116, 143(6), 31 S.E.2d 20 (1944); Stonecypher v. Ga. Power Co., 183 Ga. 498, 501(1), 189 S.E. 13 (1936). Parol evidence is only admissible when any ambiguity cannot be resolved through the application of the rules of contract construction by the trial court and when such unresolved ambiguity must be resolved by a jury as a matter of disputed fact. OCGA § 13-2-2(1); American Cyanamid Co. v. Ring, 248 Ga. 673, 674, 286 S.E.2d 1 (1982); Andrews v. Skinner, 158 Ga.App. 229, 230, 279 S.E.2d 523 (1981). Therefore, any parol evidence as to the aborted attempt by Fulton County to issue a certificate of exemption, as to Fulton County's change in policy to have the bidding instruction include sales and use taxes, and as to Fulton County's authorization of contract officers to omit sales and use tax from the bidding instructions was not admissible into evidence under the parol evidence rule. What ESI seeks to do is to vary the agreement *130 from Fulton County not being liable for sales and use taxes to Fulton County having to reimburse ESI for the sales taxes that ESI paid, which is having Fulton County indirectly liable for the sales taxes. Parol evidence cannot be used to vary the terms of the written agreement. Early v. Kent, 215 Ga. 49, 50(1), 108 S.E.2d 708 (1959).
2. The remaining enumerations of error are controlled by Division 1.
Judgment affirmed.
RUFFIN, P.J., and ADAMS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261644/ | 290 Md. 204 (1981)
428 A.2d 469
HERMAN GOLDBERG
v.
MILDRED J. GOLDBERG
[No. 54, September Term, 1980.]
Court of Appeals of Maryland.
Decided April 24, 1981.
Motion for reconsideration filed May 25, 1981.
Denied June 1, 1981.
The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
Charles Norman Shaffer, with whom were Peter I.J. Davis and Michael J. Grady on the brief, for appellant.
A. Howard Metro, with whom were Ronald E. Lyons and Goldman, Walker, Greenfeig & Metro, Chartered on the brief, for appellee.
DIGGES, J., delivered the opinion of the Court.
In this case, we are called upon to interpret the support provisions contained in an enrolled decree which divorced *206 the parties to this appeal a vinculo matrimonii more than a decade ago. The decree, entered in the Circuit Court for Montgomery County (Pugh, J.) on January 11, 1968, in addition to its pronouncement of divorce, incorporated by reference selected provisions of a property settlement and child custody agreement executed by the parties several months prior to the institution of the divorce suit. The issues in this appeal focus on the interaction between those terms of the settlement agreement which were incorporated into the decree and those left out of it.
In early November, 1967, petitioner Herman Goldberg and his wife, respondent Mildred Goldberg, recognizing that "certain unfortunate differences" portended the end of their twenty-seven year marriage, executed a property settlement and child custody agreement. Paragraph one of the understanding declared that:
[t]he husband shall pay to the wife for her support and maintenance the sum of $150.00 per week[[1]]. .. . Said payments shall terminate upon the death of the husband or of the wife, whichever shall occur first, or, in the event of the subsequent remarriage of the wife, then upon such remarriage.
In subsequent paragraphs, the husband agreed to grant to the wife custody of the parties' two children; to provide $125.00 per month as support for each child; to "keep and maintain a group hospitalization policy with surgical benefits for ... the wife, and ... children until each of them becomes twenty-one years of age;" to pay college tuition for the children; to "provide and maintain a policy of life insurance, in which the wife is designated as beneficiary, in the amount of $10,000.00;" to "convey to the wife his interest" in the family home; to "giv[e] to the wife as her sole and separate property" all their furniture and other personalty; to "divest himself" of his interest in real property which he owned in common with his mother-in-law; and to *207 pay the wife $2,500.00 cash as well as her attorney's fees. In exchange for these promises, the wife, for her part, agreed in paragraph two:
that the ... payments [set forth in paragraph one of the agreement] are adequate for her support and maintenance and that she accepts them in lieu of any other claim that she has or may have against the husband for support, maintenance, alimony or other claim upon the husband for her right to be maintained as the wife of the husband.
In addition, Mr. and Mrs. Goldberg relinquished all rights which each had in the property or estate of the other, and both recognized that "they have accepted the benefits of [the] agreement in lieu not only of their rights against each other in and to the property of each other during the lifetime of each, but in lieu of any right that either may have against the estate of the other...." At the request of the parties, the chancellor incorporated by reference into the decree of divorce paragraphs of the property settlement agreement numbered one (the quoted provision for the support for the wife), three (providing for child support), nine (granting child custody to the wife), and ten (terminating child support should the wife cease to have custody). There was no request by the parties that the remaining paragraphs, including number two, be incorporated into the decree, nor were they.
On June 21, 1978, ten years after the decree in the divorce action was entered, Mrs. Goldberg petitioned the court in those same proceedings for an increase of alimony. By his motion raising preliminary objection, Mr. Goldberg urged that since the property settlement agreement was intended to be the final disposition of the parties' rights and obligations, and since the provisions for spousal support in paragraph one of the agreement do not constitute technical alimony,[2] the chancellor was without authority to modify *208 the payments. When the husband's preliminary objection was overruled, the respondent's petition was presented to the court's domestic relations master for consideration. Following his determination that "[p]aragraph [o]ne [of the separation agreement once incorporated into the decree] clearly meets the criteria of technical alimony," the master recommended that the amount payable under the wife support provision of the 1968 divorce decree be increased to provide that the husband pay $1,010.00 per month.[3] This recommendation was accepted and effectuated by order of the trial court, and Mr. Goldberg appealed to the Court of Special Appeals. That appellate court, in an unreported opinion, agreed that the wife support provision of the settlement compact contemplated the payment of technical alimony, and since, in that context, the paragraph was incorporated into the divorce decree, its terms are properly subject to subsequent judicial modification. The intermediate appellate court cautioned, however, that "had paragraph two [waiving alimony] been incorporated into the divorce decree ... [that provision] may well [have acted] to bar the modification in question." This Court granted certiorari to examine the propriety of the ruling. Since we now determine that the divorce decree made no provision for technical alimony, reversal is required.[4]
*209 We commence our review of the circuit court's order increasing the amount of support payments with the observation, disputed by neither party here, that the correctness of the chancellor's action turns wholly on whether the monies paid to Mrs. Goldberg under the 1968 decree are properly viewed as technical alimony. This is so because a decretal award of alimony of this type, whether or not contemplated in a separation agreement of the parties, Stevens v. Stevens, 233 Md. 279, 284, 196 A.2d 447, 449 (1964), is always subject to judicial modification in light of changed circumstances. Heinmuller v. Heinmuller, 257 Md. 672, 676-77, 264 A.2d 847, 850 (1970). Other spousal support payments, however, being contractual in nature, are not subject to change absent assent of the parties, notwithstanding the fact that they have been incorporated into a divorce decree. Bellofatto v. Bellofatto, 245 Md. 379, 386, 226 A.2d 313, 315-16 (1967); Schroeder v. Schroeder, 234 Md. 462, 464-65, 200 A.2d 42, 43-44 (1964); Dickey v. Dickey, 154 Md. 675, 678, 141 A. 387, 388-89 (1928).[5] Technical alimony can only be provided by decree of court, note 2, supra; but since Maryland Rule S77 b authorizes the incorporation into the divorce decree of a settlement executed by the spouses, the situation often arises where the parties by their agreement contemplate an award of technical alimony which does not attain that legal status until the understanding receives judicial imprimatur through incorporation into the decree. Heinmuller v. Heinmuller, supra at 677, 264 A.2d at 850; Stevens v. Stevens, supra at 284, 196 A.2d at 450. However, where the *210 parties do not intend an award of technical (and thus modifiable) alimony, but rather provide for contractual spousal support in the separation compact, the fact that the agreement, or that provision of it, is incorporated into a decree does not operate to transform the contractual payments into technical alimony. For examples of the analysis used to determine whether spousal payments agreed upon by the parties which were later inserted into a decree constitute technical alimony, see, e.g., Brown v. Brown, 278 Md. 672, 366 A.2d 18 (1976); Heinmuller v. Heinmuller, supra; Paylor v. Paylor, 254 Md. 154, 253 A.2d 911 (1969); Bellofatto v. Bellofatto, supra; Bebermeyer v. Bebermeyer, 241 Md. 72, 215 A.2d 463 (1965); Woodham v. Woodham, 235 Md. 356, 201 A.2d 674 (1964); Schroeder v. Schroeder, supra; Stevens v. Stevens, supra; Dickey v. Dickey, supra.
Given these principles, Mrs. Goldberg asserts that, since the wording of the support provision contained in paragraph one of the agreement "conforms in every detail with the definition of technical alimony," the decree incorporating that paragraph of the contract is subject to judicial modification, and if the language of paragraph two waiving alimony, which was not incorporated into the decree, is deemed to be inconsistent, then it was "superseded by, and merged into, the decree." This reasoning, in our view, is faulty ab initio, for the premise on which respondent rests her argument, that the separation agreement called for an award of technical alimony, is incorrect. Accordingly, the chancellor did not "[order] the [husband] to pay technical alimony," but rather merely incorporated into the divorce decree, at the request of the parties, selected provisions of their agreement.[6] It is true that, in determining whether *211 technical alimony has been awarded, the terms of the decree in the first instance should be consulted and if unambiguous are normally controlling. From this, it does not necessarily follow, however, that the unincorporated provisions of a separation agreement play no role in, and thus may not be examined as part of, this interpretative inquiry. For example, in this case, the divorce decree did no more than incorporate, simply by reference to the paragraph numbers of the agreement, four provisions contained in that understanding; thus, examining the divorce decree alone to ascertain the nature of the payments ordered is uninformative without reference to the agreement. See, e.g., Dickey v. Dickey, supra; Schroeder v. Schroeder, supra; Stevens v. Stevens, supra. In looking to the settlement accord to embellish the terms of the divorce decree, a court subsequently interpreting that order should not myopically focus on just those contract provisions incorporated by reference into it; rather, it seems obvious to us that the entire contract should ordinarily be examined to determine the legal effect of the decretal award. To hold otherwise would lead to untenable results. As an illustration, if in this case, unincorporated paragraph two, instead of waiving alimony, defined "support and maintenance" as used in paragraph one to be contractual, non-technical, non-modifiable, spousal support, petitioner's approach would obscure the clear meaning of paragraph one as elucidated by the definition, resulting in an interpretation of the "support and maintenance" language in a vacuum, unaided by the crucial contractual definition. Distinct in their variation from respondent's suggested analysis, our decisions make it clear that the entire agreement can be consulted in this context. Thus, in Schroeder v. Schroeder, supra at 463-65, 200 A.2d at 43-44, this Court, in concluding that the chancellor did not award technical alimony, examined the whole agreement, including a provision that awarded as "permanent alimony" an amount equal to the *212 "alimony" later ordered to be paid under the decree. See Bellofatto v. Bellofatto, supra at 385-86, 226 A.2d at 316 ("taking the agreement as a whole," the periodic support payments contained therein were not modifiable alimony); Stevens v. Stevens, supra at 284, 196 A.2d at 450 (conclusion that separation agreement contemplated technical alimony based upon interpretation of entire contract).
Since the two lower courts should not have focused only on those provisions incorporated into the Goldberg's divorce decree, we turn briefly to set out the rules governing interpretation of contracts which influence the disposition of this case. Property settlement agreements, as all other contracts scrutinized under the law of this State, are subject to interpretation in light of the settled and oft-repeated principles of objective construction. Orkin v. Jacobson, 274 Md. 124, 128, 332 A.2d 901, 903 (1975). "The written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and definite understanding...." Slice v. Carozza Prop., Inc., 215 Md. 357, 368, 137 A.2d 687, 693 (1958). "[W]here a contract is plain and unambiguous, there is no room for construction, and it must be presumed that the parties meant what they expressed." Kasten Constr. v. Rod Enterprises, 268 Md. 318, 328, 301 A.2d 12, 18 (1973); Little v. First Federated Life, 267 Md. 1, 6, 296 A.2d 372, 375 (1972); Devereux v. Berger, 253 Md. 264, 269, 252 A.2d 469, 471 (1969). Thus, when interpreting a separation agreement, this Court is "bound to give effect to the plain meaning of the language used." Woodham v. Woodham, supra at 360, 201 A.2d at 676; Sands v. Sands, 252 Md. 137, 249 A.2d 187 (1969).
We think the words of the agreement between the Goldbergs present no ambiguity and are expressive of their respective rights and obligations. It is entirely permissible for a party to waive his or her claim to alimony as long as this release is supported by valid consideration, Frank v. Frank, 207 Md. 124, 113 A.2d 411 (1955); Frank v. Frank, *213 203 Md. 361, 101 A.2d 224 (1953), and from our review of the terms of the agreement, this is precisely what Mrs. Goldberg did here. No one questions the adequacy of the consideration passing from the husband to the wife in exchange for her waiver of "alimony" expressed in paragraph two. Rather, the wife asserts that the provision for her support contained in paragraph one is "neatly packaged" as technical alimony, and that her acknowledgement in paragraph two that she accepts the allowance "in lieu of any other claim for support, maintenance [or] alimony" is not inconsistent with paragraph one because the latter refers to some other "species of legal demand." The inconsistency which Mrs. Goldberg perceives, and therefore attempts to explain, however, is caused solely by her isolated analysis of paragraph one of the agreement. The intent of the parties is pellucid when that provision is properly viewed as one portion of the composite whole contract. The all-encompassing waiver by Mrs. Goldberg of further support-type claims against the petitioner (other than that contained in paragraph one) embraces by its terms all forms of spousal support, including technical alimony. Paragraph one, which provides for the "support and maintenance" of the wife, contains neither a specific reference to technical alimony nor any other language indicating that the parties contemplated such an award. Indeed, it is not without significance that the parties chose not to use the term alimony when denominating in paragraph one the support obligation of the husband. If the parties had intended the agreement to authorize a court award of modifiable alimony, they doubtless would not have included a specific waiver by the wife of "any other claim ... for ... alimony" in their agreement. The subsequent incorporation of selected portions of the property settlement agreement into a decree of divorce did not transmogrify what is clearly contractual spousal support into court ordered technical alimony.[7]*214 Consequently, the circuit court exceeded its authority in modifying the payments provided for in the agreement.
Judgment of the Court of Special Appeals reversed and case remanded to that court with instructions to vacate the decree of the Circuit Court for Montgomery County with direction to dismiss the petition.
Costs to be paid by the respondent.
NOTES
[1] This provision was later amended by agreement to require payment of $650.00 per month.
[2] The generic term "alimony" is unfortunately often used by bench and bar to express all forms of spousal support, whether payable under decree or agreement and regardless of the power of the court of equity to modify them. This expanded use of the term alimony has caused the coinage of the phrase "technical alimony" when referring to a periodic allowance for spousal support payable under judicial decree which terminates on the death of either spouse or on the remarriage of the spouse receiving the payments. Brown v. Brown, 278 Md. 672, 675, 366 A.2d 18, 20 (1976); see Md. Code (1957, 1981 Repl. Vol.), Art. 16, § 1 (a).
[3] Although the master suggested that his determination (the allowance is technical alimony) was "a finding of fact," we conclude that the issue is predominantly one of law. Consequently, our review of this determination is plenary.
[4] The issue whether the court which divorced the Goldbergs was authorized to order technical alimony in the face of an agreement between them which precluded such an allowance is not before us. See Md. Code (1957, 1966 Repl. Vol. and 1981 Repl. Vol.), Art. 16, § 28 (separation agreement between husband and wife "shall be valid, binding and enforceable to every intent and purpose..."); Rice v. Rice, 246 Md. 212, 216-18, 227 A.2d 742, 744-45 (1967) (chancellor "had no right to modify" an agreement between the parties limiting support payments by awarding alimony); Melson v. Melson, 151 Md. 195, 205, 134 A. 136, 139 (1926) (separation agreement "when fully performed by the husband, bar[s] [wife] from any other form of maintenance than those agreed"). Since neither party appealed from the entry of the original decree of divorce, they are bound by that adjudication, whatever its meaning. Hughes v. Hughes, 216 Md. 374, 377-79, 140 A.2d 649, 651-52 (1958). Consequently, the only matter to be settled by our review is the proper interpretation to be given the original decree.
[5] The Legislature, however, has provided that "any provision in [any] deed or agreement [made between husband and wife after April 13, 1976,] in respect to alimony, support and maintenance ... is subject to modification by the court ... regardless of the manner in which the provisions with respect to [these payments] are expressed," unless there is a waiver or a specific statement that the payments are not subject to any court modification. Md. Code (1957, 1981 Repl. Vol.), Art. 16, § 28; 1976 Laws of Maryland, ch. 170, §§ 2, 3. Since the settlement agreement and divorce decree we here consider were finalized long before this statute became operative, we evaluate this case using the pre-existing principles.
[6] We see no special significance in the incorporation by the chancellor, at the request of the parties, of these particular contractual provisions. Once made a part of the decree, contractual obligations become subject to the enforcement powers of the court of equity, not the least of which of course is the contempt power. See Speckler v. Speckler, 256 Md. 635, 261 A.2d 466 (1970); Soldano v. Soldano, 258 Md. 145, 265 A.2d 263 (1970). In this case, there was no need to subject all the provisions of the separation agreement to the court's enforcement authority, since most of them, indeed all but the four paragraphs incorporated, represented either mere affirmations of intent or fully executed promises at the time of the divorce.
[7] It may be suggested that the language used by the Court of Special Appeals in Schmertz v. Schmertz, 32 Md. App. 639, 363 A.2d 580 (1976), does not comport with what we decide here; if so, to the extent that this is true, we disapprove of what is there said. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261661/ | 861 F.Supp. 544 (1994)
Calvin P. LAND, Jr., Plaintiff,
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant.
No. 2:93-CV-214PS.
United States District Court, S.D. Mississippi, Hattiesburg Division.
August 23, 1994.
*545 Jack Land, Hattiesburg, MS, for plaintiff.
Charles Greg Copeland, Jackson, MS, for defendant.
MEMORANDUM OPINION AND ORDER
PICKERING, District Judge.
This matter is before the Court on Cross Motions for Summary Judgment filed on behalf of each of the parties. The Court, having reviewed the motions and supporting briefs, the authorities cited, and being other wise fully advised in the premises, finds as follows, to-wit;
FACTUAL BACKGROUND
On or about August 21, 1992, Calvin Land was involved in a motor vehicle accident with Gary Neal Zahn in Texas. At the time of the accident, Land was driving a vehicle owned by him and insured as one of four vehicles insured under a USF & G commercial auto policy issued to Land's farming operation. This policy had uninsured/underinsured motorist coverage (hereafter "UM coverage") of $25,000 covering each of the four vehicles. USF & G stacked these four limits of UM coverage for a total of $100,000 coverage under the commercial policy.
Land also had a personal auto policy with USF & G covering two vehicles with $100,000 UM coverage, neither of which was involved in the accident. USF & G admits that there is $100,000 of UM coverage available to Land under the personal policy but has refused to stack a second $100,000 of UM coverage because of alleged anti-stacking language in the policy which it contends prohibits such a result. The underinsured motorist, Zahn, had liability coverage in the amount of $100,000 which has been paid to Land by Zahn's insurer, Allstate. It is uncontested that Zahn was at fault in causing the accident and that he was "underinsured", as defined by Mississippi law[1]. USF & G has paid $100,000 to Land for his injuries. It has admitted coverage for another $100,000 in UM coverage, but has taken an offset in that amount as a result of the payment of the liability limits by the carrier for the negligent motorist, Zahn.
At this point, plaintiff contends that he is entitled to another $100,000 from USF & G by virtue of the severity of his injuries and the alleged requirement that USF & G stack his UM limits under his personal auto policy. Plaintiff argues in the alternative, if defendant's argument is accepted, that the uninsured motorist coverage of the personal policy covered only one auto, that since plaintiff did not reject uninsured motorist coverage on the second auto, the second auto has uninsured motorist coverage of $500,000, the *546 amount of the liability coverage in the policy, and that this $500,000 should stack. Plaintiff does not argue this alternative ground with convincing force.
STANDARD OF REVIEW
The Federal Rules of Civil Procedure, Rule 56(c) authorizes summary judgment where "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A Judge's function at the summary judgment stage is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.1986). "The mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The dispute must be genuine, and the facts must be material." Id. "With regard to `materiality', only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment." Phillips Oil Company v. OKC Corporation, 812 F.2d 265, 272 (5th Cir.1987).
In making its determinations of fact on a motion for summary judgment, the Court must view the evidence submitted by the parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir.1984).
The moving party has the duty to demonstrate the lack of a genuine issue of material fact and the appropriateness of judgment as a matter of law to prevail on his motion. Union Planters Nat. Leasing v. Woods, 687 F.2d 117 (5th Cir.1982). Once a properly supported motion for summary judgment is presented, the nonmoving party must rebut with "significant probative" evidence. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir.1978). In other words, "the nonmoving litigant is required to bring forward `significant probative evidence' demonstrating the existence of a triable issue of fact." In re Municipal Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir.1982). To defend against a proper summary judgment motion, one may not rely on mere denial of material facts nor on unsworn allegations in the pleadings or arguments and assertions in briefs or legal memoranda. The nonmoving party's response, by affidavit or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e), Fed. R.Civ.P. See also, Union Planters Nat. Leasing v. Woods, 687 F.2d at 119.
MISSISSIPPI LAW ON "STACKING"
This case concerns the oft litigated question of "stacking" of uninsured/underinsured motorist coverages under Mississippi law. Since, this is a diversity action, the Court is of course bound to apply the law of the forum state. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
Under Mississippi law, there are several well settled propositions concerning uninsured motorists coverage. "The uninsured motorist statute is to be liberally construed so as to provide coverage." Harris v. Magee, 573 So.2d 646, 651 (Miss.1990), citing Washington v. Georgia American Ins. Co., 540 So.2d 22, 25 (Miss.1989); Wickline v. U.S. Fidelity & Guar. Co., 530 So.2d 708, 711 (Miss.1988); Stevens v. U.S. Fidelity & Guaranty Co., 345 So.2d 1041, 1043 (Miss. 1977). "The purpose of the uninsured motorist statute is to give the same protection to the person injured by the uninsured motorist as the injured party would have if injured by an insured person." Harris v. Magee, 573 So.2d at 651. Stacking is "the combining or aggregating of coverages of different policies *547 or of one policy covering separate vehicles for which plural premiums are paid." Wickline, 530 So.2d at 711. See also Government Employees Ins. Co. v. Brown, 446 So.2d 1002 (Miss.1984). "Stacking is firmly imbedded in our uninsured motorist law", and "... stacking has become a positive gloss upon our Uninsured Motorist Act." Wickline, 530 So.2d at 714.
USF & G relies on the recent Mississippi case of In re Koestler for the Benefit of Koestler, 608 So.2d 1258 (Miss.1992) (which has been overruled), for the proposition that anti-stacking language clearly and unambiguously set forth in an insurance policy is enforceable. Under the holding in Koestler, only the statutorily required minimum UM coverage, which that Court determined to be $10,000, is absolutely required to be stacked. Under Koestler the stacking of any coverage contained in the policy in excess of what it determined to be the statutory minimum is subject to limitation under the contractual terms of the policy, if the limiting language is sufficiently clear and unambiguous.
Prior to Koestler, the Mississippi Supreme Court seemed to be heading toward the position that whether there were multiple policies or single policies all UM coverage should be stacked, regardless of whether or not the insured had purchased only the $10,000 minimum or any amount up to the limits of liability. The reasoning was that to do otherwise was against public policy and the Court's previous interpretation of the Uninsured Motorist Act. See Brown v. Maryland Cas. Co., 521 So.2d 854, 856 ("... uninsured motorist coverage contained in one policy of insurance insuring three vehicles, and for which a separate premium was paid, can be aggregated."); State Farm Mut. Ins. Co. v. Nester, 459 So.2d 787, 793 (Miss.1984) ("... where an insured purchases more than one policy and pays the premiums on more than one policy, that insured is entitled to collect on all such policies."); Government Employees Ins. Co. v. Brown, 446 So.2d at 1006, ("Any language attempting to limit an insurer's liability must fail when it deprives the insured of benefits for which it has paid a premium.") However, the charging of separate premiums was early on decided not to be entirely decisive on the issue of stacking. "We also think that charging a separate premium would not necessarily determine the propriety of aggregating, although it is an element to be considered with other aspects of the case." Pearthtree v. Hartford Acc. & Indem. Co., 373 So.2d 267, 270 (Miss.1979). Cases have gone further and indicated that the charging of a separate premium is not the basis for requiring stacking. Justice Prather speaking for the Court in Wickline, supra, said
... the rationale offered is that multiple premiums are paid and multiple (stacked) coverages should be available. However, what is important is the fact that stacking has become a positive gloss upon our Uninsured Motorist Act.
Wickline indicates that regardless of whether separate premiums are paid, stacking is now a part of Mississippi uninsured motorist coverage.[2]
From a reading of the above cases, the majority of the Court seemed to indicate that, regardless of the limiting language, stacking of all UM coverage purchased, *548 whether in a single policy or in different policies, was required.
Then along came Koestler. This case, in the opinion of this Court was an about-face in the law of stacking of UM coverage in Mississippi. Justice Robertson, writing for the majority in a 5-4 opinion, seemed to regard it as a clarification of existing Mississippi law. But, without overruling any of the prior stacking cases, this case seemed to be an anomaly if the public policy reasons espoused in those prior cases are given weight.[3]
THE EFFECT OF GARRIGA
Koestler was overruled on March 31, 1994, in an opinion issued on a petition for rehearing in Nationwide Mut. Ins. Co. v. Garriga, 636 So.2d 658 (Miss.1994). Because Garriga was not a stacking case but only dealt with a worker's comp offset question, defendant contends that Garriga does not change the law espoused in Koestler that clear and unambiguous language in a policy can limit stacking. True, Garriga dealt mainly with the worker's comp offset issue because Nationwide admitted the stacking issue. However, Garriga did not limit its holding to worker's comp offset in overruling Koestler. For Koestler, as did Garriga, dealt with the statutorily required minimum coverage, or excess coverage, under the UM statute, Miss. Code Ann. § 83-11-101, et seq. Garriga held that the statutory minimum UM coverage is that amount purchased by any particular insured up to the amount of his liability coverage, specifically overruling Koestler's finding that such was the statutorily stated amount of $10,000. Koestler appears to have been an anomaly and Garriga seems to have wiped it off the slate, even though Justice Banks in Garriga quoted extensively from Koestler as has this Court in this opinion.
If that is the case, then an appropriate query is can an insurer now ever prevent stacking by the insertion of clear and unambiguous language in a policy of insurance or is it against the public policy of the state? Garriga seems to dictate a no answer. The Mississippi Supreme Court clearly appears to have made a public policy decision that stacking in cases such as this cannot be prohibited by any language in the policy.
The question hinges on "the common law principle that contracts contrary to public policy are unenforceable, no matter how clear or unambiguous they may be."
636 So.2d at 662. (Citations omitted.)
In order to decide this case, this Court must analyze the effect of Garriga which in turn analyzes Section 83-11-101(1) of the MISS.CODE OF 1972 as annotated. Twice in Garriga the Court plainly stated that it was determining what Section 83-11-101 mandates as minimum uninsured motorist statutory coverage. The Court in Garriga stated
We have previously observed that our uninsured motorist statutes do not permit insurance contracts which would enable the carrier to contract for less than the minimum coverage. Today we squarely address the question, "What is the minimum?" Our answer is that the minimum is that amount of coverage that the insured elects up to the amount of liability coverage purchased.
Garriga, 636 So.2d at 659. (Emphasis added.)
The question before the court is essentially one of statutory interpretation. That is what is the minimum coverage prescribed by statute? An analysis of the statute prescribing the minimum coverage leads inescapably to the conclusion that we misapprehended the minimum in Koestler. We now overrule Koestler and hold that the minimum required coverage which may not be offset by clauses such as that here involved is the coverage that the insured chooses up to that amount equal to the liability amount acquired.
Id. at 664. In essence the dissent of Justice Banks in Koestler became the law of the majority in Garriga.[4]
*549 The Koestler Court made three basic holdings. First, the Court held that the minimum coverage required under Mississippi uninsured motorist law is $10,000. Secondly, the Court found that stacking of the statutory minimum uninsured motorist coverages is firmly imbedded in Mississippi case law.[5] Thirdly, the Koestler Court found that an insurer could by clear and unambiguous language limit its stacking exposure as to any part of the uninsured motorist coverage on each vehicle that exceeded the minimum mandated coverage.
In trying to determine how this case should be decided, under our Erie mandate to apply the law as decided by the Mississippi Supreme Court, this Court notes the following additional reasoning set out in Garriga:
This state's law recognizes the general rule that provisions of an insurance contract are to be construed strongly against the drafter.... Any ambiguities in an insurance contract must be construed against the insurer and in favor of the insured and a finding of coverage.
Id. at 662. (Citations omitted.)
Section 83-11-101(1) provides:
... however, at the option of the insured, the uninsured motorist limits may be increased to limits not to exceed those provided in the policy of bodily injury liability insurance of the insured or such lesser limits as the insured elects to carry over the minimum requirement set forth by this section. (Emphasis added.)
The Garriga Court reasoned that since § 83-11-101(1) gives an insured the option of increasing his uninsured motorist coverage up to the amount of his liability coverage, and since this option is given to the insured by statute, that this amount constitutes the statutory minimum. The Court in construing § 83-11-101(1) said:
It must be read for what it plainly imports, an option given the insured to increase coverage, over which the insurer has no control other than refusal to increase bodily injury liability limits.
636 So.2d at 664.
The Court in Garriga acknowledged that
From the beginning, the legislature provided that the parties were free to contract for coverage in excess of that mandated and that such coverage was not governed by the act. Laws of 1966, ch. 524, § 6, now codified as Miss.Code Ann. § 83-11-111 (Supp.1993).[6]
Id. at 664. Since § 83-11-101 explicitly provides that the uninsured motorist limits must not "exceed" the limits of liability insurance, *550 and since Garriga has determined that the "minimum" is the amount opted for by the insured "up to the amount of liability coverage purchased" there can be no "excess" in a regular policy of liability insurance. According to the holding of Garriga, the only "excess" coverage subject to § 83-11-111 is that provided by umbrella policies or in situations involving others than Class 1 insureds. The Court in Garriga further spelled this out when it specifically referred to the amendment which provided for underinsured motorist coverage saying: "The amendment makes clear that such coverage is controlled by the statutory scheme and is not ungoverned `excess' coverage." Id.
Referring to a previous federal court decision holding that uninsured motorist benefits could be reduced by workers' compensation payments, the Garriga Court held: "The `Erie guess' made by the Porter court that both parties have freedom of contract between the minimum and the liability limits and none above the liability limits is simply wrong. See, Porter v. Shelter General Insurance Co., 678 F.Supp. 151 (S.D.Miss. 1988)." Id. at 665.
Defendant argues that Garriga's overruling of Koestler does not affect this case. As noted above, Koestler made three primary holdings. The first holding in Koestler was the only new holding. The other two holdings primarily recognized pre-Koestler case law. Clearly, the first holding of Koestler that the statutory minimum of uninsured motorist coverage is $10,000 was overruled and is no longer the law. The second primary holding, that is that the statutory minimum must be stacked was, as already noted, really a recognition that such was already the established law in Mississippi, seems to be unaffected by Garriga. The third holding of Koestler, that is that an insurance company can limit its stacking exposure as to excess coverage by clear and unambiguous language is not mentioned in Garriga and likewise appears to be unaffected. However, that proposition is now moot in this case, and will not be applicable in most cases, since under the holding of Garriga excess coverage can only be found in umbrella policies, or perhaps in situations involving others than Class 1 insureds.
In the case now before this Court, Land purchased $100,000 of UM coverage on each of the two vehicles insured under his personal auto policy and had a liability limit of $500,000. The statutory minimum coverage in this case, under Garriga, is whatever amount that was opted for by Land up to the $500,000 liability coverage. He opted for $200,000. USF & G issued the policy. The statutory minimum coverage in this case, according to Garriga, is $200,000. Therefore, there is no excess UM coverage which could be subject to any limiting clause in the policy. He has purchase and is entitled to recover the full $200,000 of UM coverage under his personal auto policy, and the $100,000 paid under his commercial policy, to be offset by the $100,000 liability payment received on behalf of Zahn.
The effect of Garriga is that stacking of UM coverage now appears to be absolute, except in cases involving umbrella policies or perhaps situations involving others than Class 1 insureds. There appear to be no defenses to it. The statutory minimum is that amount purchased by the insured up to the amount of his liability coverage. It is against public policy and the well settled law of Mississippi for the insurer to contractually limit the required "minimum" coverage. Of course, this approach displaces the semantic arguments involving multiple policies and single premiums, single policies and multiple premiums, or single policies covering multiple vehicles charging a single premium.[7]
*551 Defendant argues that "[t]here is another reason why Garriga, a workers' compensation offset case, should not be applied to the present case. Garriga is simply not a logical opinion." When defendant must resort to an argument that this Court should not apply a decision of the Mississippi Supreme Court, that argument is almost an admission that plaintiff should prevail. That is outside the prerogative of this Court. This Court is Erie bound to follow Garriga. However, since the effect of Garriga is so far reaching, if a certification procedure to the Mississippi Supreme Court were available to the district courts, this matter would be certified by this Court. However, in the absence of such a procedure, this Court is bound to apply the law of Mississippi to the facts of this case as best it can, which it has done.
Since the foregoing resolves the issues before this Court in this case, this Court does not reach the question of whether the limiting language in defendant's policy is clear and unambiguous under the Koestler test. The Court notes, however, that there is considerable difference in the language of the policy involved in this case and the language of the policy before the Court in Koestler. It is doubtful that the language in the policy before this Court passes the Koestler test. It should be remembered that in Garriga the Court quoted from Koestler in saying "the common law principles and contracts contrary to public policy are unenforceable, no matter how clear or unambiguous they may be."
Accordingly, the Court finds that the plaintiff, Calvin P. Land, Jr., has an additional $100,000 in UM coverage available from defendant USF & G which has not been exhausted by offset or payment.
IT IS THEREFORE ORDERED AND ADJUDGED that plaintiff's Motion for Partial Summary Judgment is GRANTED and defendant's Cross-Motion is DENIED.
SO ORDERED AND ADJUDGED.
NOTES
[1] At this point, the defendant contests the total amount of damages suffered by Land.
[2] Justice Robertson speaking for the Court in Koestler, supra, which was overruled by Garriga, infra, in explaining why separate premiums were not determinative of that case went to great lengths to point out that stacking is a matter of contract, not statutory construction.
The theory of these cases without exception has been that insurer and insured have entered two or more contracts covering the same eventuality and that the insured may enforce these contracts according to their terms. To be sure, these contracts may have been encouraged by statute, and at times we have found ambiguities and resolved them in the insureds' favor. This does not alter the fact that the legal origin of stacking is contract and not statute. In addition, these cases all concerned the stacking of mandatory minimum UM coverages, a point of importance as will presently appear.
608 So.2d at 1261. Justice Robertson went further in Koestler and pointed out that references in various cases to separate premiums being paid was
... but an equitable note undergirding the fairness of the stacking mandated and enforceable by reason of contract.... No particular premium purchases any particular UM coverage beyond the limits of liability language in the policy
608 So.2d at 1264.
[3] Koestler involved a fight between two insurance companies. They had settled with the injured party and were litigating the legal issues among themselves. Justice Sullivan in his dissent pointed out that Justice Robertson wrote the dissent and then changed his vote and wrote the majority opinion. 608 So.2d at 1264, 1265.
[4] In Garriga the Court said:
See, Koestler, 608 So.2d at 1271 (Bank, J. dissenting) ("The problem is that [the majority] accepts as the minimum amount the amount set forth in Miss.Code Ann. § 63-15-3.")
Id. at 663.
[5] This really was not so much of a holding as it was a recognition that this proposition had already been clearly established under previous case law. The Koestler Court dealt with the issue of stacking the statutory minimum as if it required no explanation. They approached it matter-of-factly, as if it was just understood that this proposition was already established by Mississippi case law without question and with no need to explain or justify. Specifically, the Court said:
In the wake of our caselaw, CRE concedes as it must that it has a minimum liability on each of the five coverages of $10,000.00, or a stacked aggregate of $50,000.00, and it concedes that this point has been settled at least since Lowery v. State Farm Automobile Insurance Co., 285 So.2d 767 (Miss.1973).
608 So.2d at 1262. (Emphasis added.) "These cases are consistent with the view that only statutorily required UM liability coverages are subject to stacking." Id. at 1263. "As a practical matter, that law of contract enforcement requires that CRE pay at least $10,000.00 under each of the five coverages." Id. at 1264. These quotes reflect that the Koestler Court clearly understood Mississippi law to require the stacking of the statutorily mandated minimum coverages.
[6] The insurer and the insured are "free to contract as to uninsured motorist coverage in any respect so long as the required coverage is not cut down by the policy provision." (Emphasis added.) State Farm Mutual Automobile Insurance Co. v. Talley, 329 So.2d 52, 54 (Miss.1976) (quoting Talbot v. State Farm Mutual Automobile Insurance Co., 291 So.2d 699, 701 (Miss.1974)). "Any attempt to contractually limit an insurer's duty of coverage ... may not be effective to narrow the requirements of ... [the] statute." State Farm Mutual Automobile Insurance Co. v. Nester, 459 So.2d 787, 789 (Miss.1984). The Act "allows insurers to contract [as they please] with regard to excess coverage." Wickline, 530 So.2d at 717.
[7] For the record, the Court has considered the arguments of the parties concerning the premium issue presented in this case. Summarily, the arguments presented are that Land, at an earlier renewal, was charged a single premium on one vehicle on the policy in issue amounting to $35.00 for $100,000 UM coverage. At the subsequent renewal, that was increased to $41.00. At the next renewal, Land had added another vehicle and USF & G had begun its "single premium" anti-stacking program, it asserts was in anticipation of Koestler. The "single" premium for $100,000 UM coverage with two vehicles was $85.00. This was reduced to $75.00 at the next renewal which was consummated some three weeks prior to the accident at issue. Thus, USF & G was in effect charging a single premium for uninsured motorist coverage for two vehicles that was almost exactly twice what it charged for uninsured motorist coverage for one vehicle. To the extent that the "single premium" "multiple premium" semantics are at issue, this Court resolves that in favor of the plaintiff. He purchased $100,000 of UM coverage on two vehicles. USF & G cannot artfully convert its premium payment scheme to only charge a single premium which takes into consideration an extra charge for additional coverage for other vehicles. Insureds ought to get what they pay for. USF & G sought to greatly reduce its liability (by $100,00 or by one-half) but did not appreciably reduce its premium, if at all. See Hartford Accident & Indemnity Co. v. Bridges, 350 So.2d 1379 (Miss.1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261665/ | 861 F.Supp. 386 (1994)
In re GRAND JURY PROCEEDINGS, etc. (File Sealed).
Civ. No. K-94-2153.
United States District Court, D. Maryland.
August 23, 1994.
Lynne A. Battaglia, U.S. Atty., and Christopher B. Mead, Asst. U.S. Atty., Baltimore, MD, William R. Zoffer, and the U.S. Dept. of Justice, Washington, DC, for government-movant.
Bonnie B. Anderson, William J. Hardy, Peter R. Mathers, and Kleinfeld, Kaplan & Becker, Washington, DC, for company.
James J. Graham, and Jones, Day, Reavis & Pogue, Washington, DC, for consultant.
FRANK A. KAUFMAN, Senior District Judge.
A grand jury of this Court, in the course of investigating a company subject to the jurisdiction of the federal Food and Drug Administration (FDA), has asked that company to produce to that grand jury certain documents which relate to audits of the company's operations by an outside consultant. The company, refusing so to do, has claimed a "self-evaluative" or "self-critical analysis" privilege with regard to the documents in question. The company makes regulatory submissions to, and is subject to inspections directed by, the FDA. The grand jury is investigating the company's compliance with the federal Food, Drug and Cosmetics Act, 21 U.S.C. §§ 301-394 (FDCA), as well as the possibility that the company has made false statements to FDA and/or has obstructed FDA inspections.
For several years, an expert in the field in which the company manufactures and sells has worked as an outside consultant to the company and has conducted audits to determine the company's compliance with the FDCA and its accompanying regulations. The consultant conducted those audits pursuant to a "Consultant Agreement" with the company which provided, inter alia, that the consultant's responsibilities would consist solely "of giving advice with respect to Federal and State regulatory matters," and stated that "the information given to Consultant by the Company shall be considered CONFIDENTIAL, and except as requested by the Company, in writing, Consultant shall not give any such information or use same, or any drawings, sketches or proprietary data, for any purpose not authorized by the Company."
*387 Additionally, the company claims that it solicited audits such as those conducted by the consultant in reliance upon FDA Compliance Policy Guide 7151.02, dated March 1, 1983 and revised on June 3, 1989. That policy provides in pertinent part:
FDA will not review or copy reports and records that result from audits and inspections of a written quality assurance program....
FDA may seek written certification that such audits and inspections have been implemented, performed, and documented and that any required corrective action has been taken ...
In addition, FDA may seek access to reports and records of such audits and inspections during a "directed" or "for-cause" inspection of a sponsor or monitor of a clinical investigation, during litigation (under applicable procedural rules), or by an inspection warrant where access to records is authorized by statute.
FDA will continue to review and copy records and reports related to quality control investigations of product failures and manufacturing errors.
A grand jury subpoena has been served upon the company which demanded, inter alia:
All documents that constitute, refer to, relate to, discuss, or pertain in any way to contacts or communication, prior to April 1, 1993, between the Company and outside consultants regarding matters within the regulatory jurisdiction of FDA.
A grand jury subpoena subsequently issued to the consultant calls for comparable material. To date, neither the company nor the consultant has complied with the subpoenas. In the within case, the United States has moved to compel such compliance, and it is that motion which is before this Court for decision at this time. The record in this case has been sealed because of the involvement of the grand jury. The company and the consultant have agreed, for purposes of this motion, that the company and the consultant have been appropriately served, that the documents sought by the grand jury are responsive to the subpoenas, and that, for purposes of this motion, the relevance of the documents to the grand jury's investigation is not questioned. On its part, government counsel concedes that the company and the consultant have interposed timely assertions of the self-evaluative privilege.[1]
Development of the Self-Evaluative Privilege
The privilege [of self-critical analysis] was first recognized in Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249 (D.D.C.1970), aff'd, 479 F.2d 920 (D.C.Cir.1973) (minutes of hospital staff meetings regarding procedures to improve patient care could be protected from discovery in a malpractice suit because of the important public interest in having hospitals critically evaluate the quality of the care they provide). The Supreme Court and the circuit courts have neither definitively denied the existence of such a privilege, nor accepted it and defined its scope.
Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423, 425 n. 1 (9th Cir.1992).
Although the privilege has been occasionally recognized and applied in instances involving private litigants, courts "have appeared reluctant to enforce even a qualified `self-evaluative' privilege." Federal Trade Comm'n (FTC) v. TRW, Inc., 628 F.2d 207, 210 (D.C.Cir.1980); see also Etienne v. Mitre Corp., 146 F.R.D. 145, 147 (E.D.Va.1993) (noting that the privilege "has remained ... `not generally recognized'") (quoting Guardian Life Ins. Co. v. Service Corp. Int'l, Misc. No. 88-0395, 1989 WL 3496, at *3 (E.D.Pa. Jan. 17, 1989)). The Fourth Circuit apparently "has yet to apply the privilege to prevent disclosure of documents during discovery," Etienne, 146 F.R.D. at 148, but, on at least one occasion, "has upheld a trial court's refusal to require production of confidential faculty member evaluations in a discrimination suit ... [although] without mention of *388 the self-critical analysis privilege." Id. at 148 n. 7 (discussing Keyes v. Lenoir Rhyne College, 552 F.2d 579 (4th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977)).[2]
[C]ourts have generally required that the party asserting the privilege demonstrate that the material to be protected satisfies at least three criteria: "first, the information must result from a critical self-analysis undertaken by the party seeking protection; second, the public must have a strong interest in preserving the free flow of the type of information sought; finally, the information must be of the type whose flow would be curtailed if discovery were allowed." Note, The Privilege of Self-Critical Analysis, 96 Harv.L.Rev. 1083, 1086 (1983). To these requirements should be added the general proviso that no document will be accorded a privilege unless it was prepared with the expectation that it would be kept confidential, and has in fact been kept confidential.
Dowling, 971 F.2d at 425-26.
Those courts which have recognized the privilege generally have required that a plaintiff seeking to overcome the privilege demonstrate an "exceptional need" for the materials protected by the privilege. Note, 96 Harv.L.Rev. at 1098; see also, e.g., Keyes, 552 F.2d at 581 (referring to the lack of a "further showing" of need by plaintiff for the requested documents); Flynn v. Goldman, Sachs & Co., No. 91 Civ. 0035 (KMW), 1993 WL 362380, at *2, 1993 U.S.Dist. LEXIS 12801, at *4 (S.D.N.Y. Sept. 16, 1993) (stating that privileged notes "may not be disclosed absent a showing by plaintiff of compelling need for those notes").[3]
Courts Have Not Applied the Privilege Against the Government
Whatever may be the status of the "self-evaluative" privilege in the context of private litigation, courts with apparent uniformity have refused its application where, as here, the documents in question have been sought by a governmental agency. As a general matter, this conclusion makes sense in the light of the roots of the privilege in the public interest, and the strong public interest in having administrative investigations proceed expeditiously and without impediment....
An independent reason for declining to apply a "self-evaluative" privilege in this case is presented by the fact that the documents were sought pursuant to an FTC subpoena....
Congress ... has accorded the FTC ... broad investigatory and subpoena powers. ... Whatever doubts may conceivably remain in the light of the explicit wording of the FTC Act regarding the breadth of the subpoena power conferred by it were dispelled by the Supreme Court in United States v. Morton Salt Co., [338 U.S. 632, 642-43, 70 S.Ct. 357, 364, 94 L.Ed. 401 (1950)];
... Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not *389 have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.
TRW, 628 F.2d at 210-11 (emphasis added). See also United States v. Dexter Corp., 132 F.R.D. 8, 9 (D.Conn.1990) (also noting that courts have not applied the privilege against governmental agencies). To date, the privilege has not only not been applied in the face of a grand jury subpoena, as far as this Court is aware it has not even been so asserted. Accordingly, this would appear to be a case of first impression.
Privilege and the Grand Jury
In order, then, for this Court to apply the privilege in this case and refuse to grant the motion to compel, this Court would need to embark upon new territory.
Rule 501 of the Federal Rules of Evidence states that in cases in which federal law governs, privileges "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Rule 501 reflects Congress's intent to allow, courts "flexibility to develop rules of privilege on a case by case basis." University of Pa. v. EEOC, [493 U.S. 182, 189, 110 S.Ct. 577, 582, 107 L.Ed.2d 571 (1990)].
Dowling, 971 F.2d at 425.[4]
The Supreme Court, in Univ. of Pa., 493 U.S. at 189, 110 S.Ct. at 582, stated:
We do not create and apply an evidentiary privilege unless it "promotes sufficiently important interests to outweigh the need for probative evidence...." Trammel v. United States, [445 U.S. 40, 51, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980)]. Inasmuch as "[t]estimonial exclusionary rules and privileges contravene the fundamental principle that `the public ... has a right to every man's evidence,'" [id. at 50, 100 S.Ct. at 912], quoting United States v. Bryan, [339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950) ], any such privilege must "be strictly construed." [Trammel, 445 U.S. at 50, 100 S.Ct. at 912].
Moreover, ... we are disinclined to exercise this authority expansively. We are especially reluctant to recognize a privilege in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself. The balancing of conflicting interests of this type is particularly a legislative function.
(Blackmun, J.) (citations omitted).
As noted supra,
the grand jury has been accorded wide latitude to inquire into violations of criminal law.... The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.
....
The grand jury's sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered.
United States v. Calandra, 414 U.S. 338, 343-345, 94 S.Ct. 613, 617-19, 38 L.Ed.2d 561 (1974); see also TRW, 628 F.2d at 211 (citing to the broad powers of the grand jury).
"Grand jury proceedings are constitutionally mandated ..., and `its constitutional prerogatives are rooted in long centuries of Anglo-American history.'" Branzburg v. Hayes, 408 U.S. 665, 687, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972) (quoting Hannah v. *390 Larche, 363 U.S. 420, 489-90, 80 S.Ct. 1502, 1543-44, 4 L.Ed.2d 1307 (1960) (Frankfurter, J., concurring in result)). "Although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that `the public ... has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege, is particularly applicable to grand jury proceedings." Id., 408 U.S. at 688, 92 S.Ct. at 2660 (citations omitted).
To limit the powers of a grand jury as the company requests in this case, in the light of the grand jury's historic powers and prerogatives, and in view of the Supreme Court's admonition that courts not exercise their privilege-making authority "expansively," Univ. of Pa., 493 U.S. at 189, 110 S.Ct. at 582, would constitute an usurpation of the "legislative function." Id., see also TRW, 628 F.2d at 211; Noall, 587 F.2d at 126 (stating that, in a situation in which "Congress itself has decided the policy issue, ... it is not for the courts to challenge that determination").
Furthermore, to require the government to make a showing of need before granting the motion to compel in this case might be ill-advised in the fact-specific context of a situation such as this one in the light of the grand jury's traditional confidentiality and independence. See Calandra, 414 U.S. at 343, 94 S.Ct. at 617 (noting the secrecy and independence from judicial control of the grand jury).[5]
Public Policy and the Company's Invocation of FDA Policy Guide 7151.02
The company, in the face of the above considerations, contends that to allow release of the requested materials to the grand jury would inhibit other companies in its industry from commissioning frank, independent reviews for fear of future prosecution. While that, indeed, presents what this Court considers to be an important concern, it is not altogether clear that the chilling effect of disclosure would be as great as the company and the consultant suggest. Incentives to obtain independent audits would still exist; for example, companies might desire such audits in order to become aware of, and to correct, defects and thereby avoid future civil liability. Additionally, even if the grand jury is permitted to obtain and review the materials in question, that does not necessarily indicate that those materials will be admissible at any eventual trial.[6] Additionally, notwithstanding any merit in the company's asserted policy concerns, those considerations should probably first be addressed to Congress or to the Executive Branch, before they are raised in a federal court proceeding of the within type. Absent direction from the legislature or the Executive, those concerns should not be permitted to outweigh the broad latitude historically accorded grand jury investigations without more compelling reason than appears to exist in this case at this time.
The company relies heavily upon the FDA's Policy Guide 7151.02, excerpted supra. which indicates that documents of the type involved in this case will remain confidential except pursuant to certain, listed exceptions.[7] In addition, the Policy Guide provisions as a whole arguably are directed to civil or administrative proceedings, rather *391 than to those of a criminal nature.[8] Indeed, the policy expressly allows access to audit materials in cases of "litigation" and during "for-cause" investigations, perhaps indicating an intent to permit disclosure in matters which arise beyond the routine. A fortiori, the policy seems to allow disclosure in a grand jury context.[9]
Similarly, the company's claim that only the FDA can decide to require disclosure outside of the listed exceptions in the Policy Guide seems without merit; as just explained, the FDA policy appears directed solely at non-criminal proceedings. Even, assuming arguendo only, that the FDA, through promulgation of a policy statement, can restrict the ability of a grand jury to investigate possible criminal wrongdoing in a regulated industry, the company has presented this Court with nothing indicating that that agency has attempted to accomplish that goal through Policy Guide 7151.02 or through any other policy statement or has ever indicated that it (the FDA) purports to speak for the entire federal government, including the Department of Justice. In fact, as the government's reply memorandum illustrates, the FDA expressly has approved the government's efforts in this case and supports the motion to compel. Surely before this Court divests a grand jury of its normal prerogatives, an express statement directing it so to do by Congress, or perhaps by the Executive, would seem needed, or at least preferable.[10]Cf. Univ. of Pa., 493 U.S. at 189-90, 110 S.Ct. at 582-83; TRW, 628 F.2d at 211; Noall, 587 F.2d at 126 (all discussing the deference due legislative determinations with regard to the powers of governmental agencies in heavily regulated areas civil rights, trade, and tax laws, respectively). "[S]ince the `self-critical' privilege is rooted in promotion of the public interest, a court should take cognizance, in an action brought by the United States to enforce duly enacted laws, of Congress's role in declaring what is in the public interest." Dexter, 132 F.R.D. at 9.
Conclusion
In view of (1) the admonition that courts sparingly should expand the application of privileges to new contexts and circumstances, (2) the absence of any case law applying the self-evaluative privilege against the government, as opposed to private parties, and (3) the traditionally wide latitude accorded to grand juries in their investigations of possible criminal activities, this Court, in a separate Order filed on August 18, 1994, has granted the government's motion to compel and has declined to apply the self-evaluative privilege to the documents in this matter, for purposes of the grand jury investigation.
NOTES
[1] Also, the consultant has agreed to follow the company's wishes with regard to the said pending motion and will turn over the requested documents if requested so to do by the company. However, in an affidavit filed in this case, the consultant argues in favor of retaining the confidentiality of audits such as those which he conducted for the company.
[2] Judge Field, in Keyes, 552 F.2d at 581 (footnotes and citation omitted), wrote that had the defendant college in that case
sought to justify any male-female disparity [alleged by plaintiff] on the basis of these evaluations[,] the plaintiff should have been granted the opportunity to use them to demonstrate that the explanation was pretextual.... Here, however, the College did not resort to the evaluations for that purpose, and in the absence of some further showing on the part of the plaintiff, the district court's decision to protect these records from disclosure was not an abuse of its discretion.
[3] Additionally, several courts "currently interpret the privilege of self-critical analysis to protect the evaluative but not the factual portions of self-analyses." Note, 96 Harv.L.Rev. at 1093 (criticizing that distinction in some circumstances because of the expense, both in money and time, imposed upon courts and parties and because of the difficulty in distinguishing between "facts and evaluations"); cf. United States v. Noall, 587 F.2d 123, 127 (2d Cir.1978) (Friendly, J.) (commenting, in context of IRS subpoena, that requiring the "trial judge [to] examine the materials in camera ... [with regard to] their relevancy and materiality to the tax investigation, ... in most cases ... would be so burdensome and probably so impossible of performance that Congress could not have meant to impose it upon busy district judges"), cert. denied, 441 U.S. 923, 99 S.Ct. 2031, 60 L.Ed.2d 396 (1979).
[4] Because the grand jury in this case appears to be investigating the company with regard to possible violations of federal law, federal law seems to govern this dispute. Cf. Note, 96 Harv.L.Rev. at 1085 (commenting that, "in cases in which state law provides the rule of decision," a federal court should apply state law); Fed.R.Evid. 501 (stating that state laws of privilege apply "with respect to an element of a claim or defense as to which State law supplies the rule of decision"). Of course, the Federal Rules of Evidence themselves are not strictly applicable in the context of a grand jury investigation. See United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974).
[5] In its filings in this case to date, the government has not specifically made, or attempted to make, such a showing.
[6] In a similar vein, it appears as if Fed.R.Crim.P. 6(e) provides the company with certain protections from disclosure of the audits to the public and/or to the FDA's administrative enforcement officials.
[7] According to the company, that FDA policy constitutes an "advisory opinion" of that agency, "represent[ing] the formal position of the FDA ... [and] obligat[ing] the agency to follow it until it is amended or revoked." 21 C.F.R. § 10.85(e). The government argues that the policy does not limit a grand jury investigation, pointing in that regard to the introduction to the Policy Guide, which provides in part:
The statements made in the Compliance Policy Guides are not intended to create or confer any rights, privileges, or benefits on or for any private person, but are intended merely for internal guidance.
The exceptions are described in the policy as:
(1) during a "directed" or "for-cause" inspection,
(2) during litigation, or
(3) by an inspection warrant where access to records is authorized by statute.
[8] By way of illustration, Maryland statutory law, which, as the company points out in its filing, provides for the confidentiality of certain loan review documents prepared for Maryland depository institutions, also confines that self-evaluative privilege to "civil action[s]." Md.Fin.Inst.Code Ann. § 1-205(c) (1993 Supp.).
[9] Although this Court herein determines that the Policy Guide does not prohibit disclosure of the audit documents to the grand jury, this Court renews its suggestion, first stated by it during oral argument in this case, that the FDA may wish to re-examine its Policy Guide in order to set forth more clearly the circumstances under which audits of the type at issue here may be sought by the government in the future, perhaps with specific references to grand jury subpoenas, agency law enforcement proceedings, and other matters. In that regard, during oral argument, counsel for the company and the consultant stressed that their clients, and the industry involved, have interpreted Policy Guide 7151.02 to mean that documents and information of the type at issue in this case would remain totally confidential and entirely exempt from compelled disclosure other than through the specific exceptions listed in the Policy Guide to any governmental body or to a grand jury. It is hard to believe that if counsel for the company and/or the consultant had been asked by their respective clients for their opinions in that regard, they would not in turn have sought advice from appropriate FDA and/or other government officials. That they did not do.
[10] There is seemingly no basis here to support a claim of estoppel against the government. In order to estop the government, "[t]he government's acts or misrepresentations inducing reliance must be `affirmative misconduct,' must be more than a mistake by an individual government employee." Furcron v. United States, 626 F.Supp. 320, 323 (D.Md.1986) (Young, J.). In this case, the company has demonstrated no facts which support a claim of "affirmative misconduct" on the part of the government. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2631088/ | 164 P.3d 397 (2007)
2007 UT 47
STATE of Utah, Plaintiff and Respondent,
v.
Mitchell WORWOOD, Defendant and Petitioner.
No. 20060048.
Supreme Court of Utah.
June 22, 2007.
*402 Mark L. Shurtleff, Att'y Gen., J. Frederic Voros, Jr., Asst. Att'y Gen., Salt Lake City, Jared W. Eldridge, Nephi, for plaintiff.
Scott P. Card, Jennifer K. Gowans, Provo, for defendant.
On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶ 1 In this case, we consider the constitutional scope of an investigative detention conducted under reasonable suspicion. The detention at issue occurred when an off-duty highway patrolman, Korey Wright, stopped Marshall Worwood on suspicion that he was driving under the influence of alcohol. Wright did not conduct field sobriety tests at the site of the initial encounter. Instead, Wright detained Worwood in Wright's truck and transported him down a canyon to Wright's home, where an on-duty officer conducted field sobriety tests. The district court denied Worwood's motion to suppress, and the court of appeals affirmed. We reverse the court of appeals, finding that Wright exceeded the scope of what was reasonably necessary to further his investigation.
FACTUAL AND PROCEDURAL BACKGROUND
¶ 2 On June 20, 2003, Korey Wright, an off-duty Highway Patrol trooper, was driving with passenger Skylar Fautin down Deep Canyon in Juab County after a day of horseback riding. Wright saw defendant Mitchell Worwood standing by a truck that was partially blocking the road. Wright noticed "a big wet spot on the road" and a beer can behind the truck. Worwood got into the truck and pulled it off the road, presumably so that Wright could pass him.
¶ 3 Suspecting that Worwood had been drinking, Wright pulled up next to Worwood's truck. Wright did not identify himself as a police officer but stated that, given their small community, Worwood "knew who [he] was." From the driver's seat of Wright's truck, he asked Worwood if everything was all right. Worwood responded that he had pulled over to urinate. Wright observed that Worwood's speech was slow and slurred and that his eyes were bloodshot. Wright then exited his vehicle, approached Worwood, and while standing by Worwood's truck door, noticed the smell of alcohol. At some point during the encounter, Wright also observed a cooler that had been recently emptied.
¶ 4 From these facts, Wright determined that Worwood had "some alcohol in him," so he stepped out of his truck, walked over to Worwood, and stated, "[W]e'd better have a trooper look at you before you drive anymore."
¶ 5 Wright asked Worwood to step out of his own truck and get into Wright's truck. Without a means of contacting an on-duty officer in the canyon, Wright instructed Fautin to drive Worwood's truck down the canyon, call the police from the dairy at the bottom of the canyon, and reconvene at *403 Wright's house. Wright, in turn, drove Worwood a mile and a half down the canyon to Wright's own home, where they were met by on-duty Officer Kevin Wright.
¶ 6 Officer Kevin Wright performed four field sobriety tests on Worwood at Korey Wright's residence. Two tests, the horizontal gaze and nystagmus tests, determined possible intoxication from eye movement. The third required Worwood to walk nine steps, heel to toe, and turn. The fourth test required Worwood to stand on one leg for thirty seconds. When Worwood failed these tests, Officer Kevin Wright arrested him.
¶ 7 Worwood pled not guilty to the charge of driving under the influence with two prior convictions, a third degree felony.[1] He then filed a motion to suppress on the basis of alleged violations of the Fourth Amendment and article I, section 14 of the Utah Constitution. In view of the court of appeals' holding and the arguments of both parties, we limit our suppression analysis to the field sobriety tests.[2]
¶ 8 The district court denied the suppression motion. It found that the initial conversation between Wright and Worwood was consensual and did not amount to a detainment and that Wright's subsequent detention of Worwood fell within the bounds of a constitutional investigative detention.
¶ 9 After this ruling, Worwood entered a conditional guilty plea and appealed to the court of appeals. In a narrow holding, the appeals court affirmed, stating, "[W]e cannot conclude that an off-duty law enforcement officer exceeds the permissible scope of an investigatory detention when he transports a driver he suspects to be intoxicated a short distance from an uninhabited area to meet an on-duty officer for further investigation."[3] Judge Thorne dissented, claiming that Wright's actions amounted to a de facto arrest.[4] Alternatively, Judge Thorne argued that under an investigative detention analysis, the duration and scope of the stop were unreasonable.[5]
¶ 10 We granted Worwood's petition for a writ of certiorari to determine "[w]hether delay in the performance of a field sobriety test and transportation of a suspect" are constitutional.
STANDARD OF REVIEW
¶ 11 This court reviews the court of appeals' decision for correctness, with particular attention to whether the court of appeals reviewed the trial court's decision under the correct standard.[6] In cases involving Fourth Amendment questions under the United States Constitution, we review mixed questions of law and fact under a correctness standard in the interest of creating uniform legal rules for law enforcement.[7]
¶ 12 Factual findings underlying a motion to suppress are evaluated for clear error.[8] As the court of appeals correctly stated, parties challenging the facts under a clear error standard have a judicially imposed obligation to marshal the evidence in support of the challenged finding.[9] In his briefs to us and to the court of appeals, Worwood seems to dispute the district court's finding that Wright smelled alcohol on Worwood prior to detaining him in Wright's truck, but Worwood failed to actually challenge this finding by marshalling the evidence. We consequently accept the trial court's factual findings as conclusive. Because its findings are quite sparse, however, *404 we also look to the record consistent with the district court's findings.[10]
ANALYSIS
¶ 13 We first consider Worwood's state constitutional claim, but find it to be procedurally barred. We then turn to Worwood's claims under the Fourth Amendment of the United States Constitution and find that Wright's initial encounter with Worwood was justified under reasonable suspicion. The scope and coercive nature of the stop, however, exceeded the constitutional bounds of an investigative detention. Because the field sobriety tests were conducted as a result of the unreasonable scope and coercive nature of the stop, we hold that the results of those tests must be suppressed.
I. WORWOOD'S STATE CONSTITUTIONAL CLAIM IS PROCEDURALLY BARRED
¶ 14 We would have welcomed an analysis under article I, section 14 of the Utah Constitution; however, we find Worwood's state constitutional claim to be procedurally barred and inadequately briefed. We have repeatedly instructed counsel on the consequences of failing to properly preserve and develop a state constitutional law claim.[11] Still, this instruction bears repeating, given the frequency with which these claims are inadequately briefed before this court.
¶ 15 When interpreting state constitutional provisions that are similar or identical to those in the federal constitution, we encourage a primacy approach.[12] Under the primacy model, "`a state court looks first to state constitutional law, develops independent doctrine and precedent, and decides federal questions only when state law is not dispositive.'"[13]
¶ 16 In developing an independent body of state search and seizure law, we have held that article I, section 14 of the Utah Constitution often provides greater protections to Utah citizens than the Fourth Amendment, despite nearly identical language.[14] In order to further develop state constitutional law, however, claims must be properly presented to this court.[15] In criminal cases, "`specific preservation of claims of error must be made a part of the trial court record'" before the issue can be heard on appeal.[16] The issue must be "`raised to a level of consciousness'" that allows the trial court an adequate opportunity to address it.[17] It follows, then, that perfunctorily mentioning an issue, without more, does not preserve it for appeal.[18] Although inapplicable in this case, a court may consider an unpreserved issue when plain error is apparent or in an exceptional circumstance.[19] Furthermore, in *405 part on the basis of the principle that preservation requires the lower court to be cognizant of a discreet issue, we have repeatedly refrained from engaging in state constitutional law analysis unless "an argument for different analyses under the state and federal constitutions is briefed."[20]
¶ 17 On some level, we understand counsel's hesitance to robustly address state constitutional issues in the lower courts. The similarity between the Fourth Amendment and article I, section 14 of the Utah Constitution plus the fledgling development of state search and seizure law makes some reliance on principles from federal cases likely. And because the federal search and seizure rules provide a floor from which state constitutional law can depart, interpretations of these provisions will oftentimes substantially overlap.[21] Finally, as a practical matter, trial courts may be reluctant to decide search and seizure issues on grounds that deviate from well-established, albeit murky, federal constitutional principles.
¶ 18 Nevertheless, in keeping with our preservation policy, a state constitutional law argument must be raised in the trial court, preserved through the appellate process, and adequately briefed to us. As with most legal arguments, there is no magic formula for an adequate state constitutional analysis. Arguments based, for example, on historical context, the constitution's text, public policy, or persuasive authority would all meet our briefing requirements. But cursory references to the state constitution within arguments otherwise dedicated to a federal constitutional claim are inadequate. When parties fail to direct their argument to the state constitutional issue, our ability to formulate an independent body of state constitutional law is compromised. Inadequate briefing denies our fledgling state constitutional analysis the full benefit of the interested parties' thoughts on these important issues.
¶ 19 Throughout the appellate process, Worwood has claimed that his appeal is partially based on article I, section 14 of the Utah Constitution. No distinct legal argument or analysis supports this assertion, however. Instead, in motions and briefs to the trial court and the court of appeals, Worwood nominally relies on article I, section 14, but actually bases his argument exclusively on the Fourth Amendment. Worwood neither attempts any separate state constitutional analysis nor suggests that the two constitutional protections are anything but coextensive. In his brief to us, Worwood's state constitutional analysis is limited to the truism that article I, section 14 may provide greater protections to Utah citizens than the Fourth Amendment. But he failed to advance a unique state constitutional analysis. Because Worwood's state constitutional claim was neither properly preserved in the trial court, properly presented to the court of appeals, nor adequately briefed to us, we decline to reach it.
II. WRIGHT'S ACTIONS VIOLATED THE FOURTH AMENDMENT
¶ 20 We now turn to Worwood's claim under the federal constitution and hold that the scope of Worwood's detention exceeded the constitutional bounds of an investigative detention, transforming it into a de facto arrest without probable cause. From the point when Wright required Worwood to get into Wright's truck for transport down Deep Canyon, Wright's actions were not reasonably necessary to further his investigation.
A. Wright's Interaction with Worwood Was an Investigative Detention Requiring Reasonable Suspicion of Criminality
¶ 21 The Fourth Amendment allows for three different kinds of police-citizen encounters, each permitting a different degree *406 of intrusion and requiring a different level of justification.
"(1) An officer may approach a citizen at any time and pose questions so long as the citizen is not detained against his will; (2) an officer may seize a person if the officer has an articulable suspicion that the person has committed or is about to commit a crime . . .; (3) an officer may arrest a suspect if the officer has probable cause to believe an offense had been committed or is being committed."[22]
¶ 22 Both parties concede that the encounter between Wright and Worwood was at least a seizure, rather than a consensual interaction. Consequently, we focus on the nature of an investigative detention, also known as a level two stop, and the kinds of actions that are justified in the course of such a detention.
¶ 23 Investigative detentions are bound by the Fourth Amendment.[23] Justification for an investigative detention exists when an officer has "`reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.'"[24] Reasonable suspicion requires a "particularized and objective basis, supported by specific and articulable facts."[25] Courts should evaluate these facts in their totality, rather than looking at each fact in isolation.[26] Although the standard requires more than an "`inchoate and unparticularized . . . hunch,'" it does not require an officer to rule out innocent conduct or establish the likelihood of criminal conduct to the same degree as required for probable cause.[27] When challenged, the state has the burden of proving the reasonableness of the officer's actions during an investigative detention.[28]
¶ 24 In considering the constitutionality of an investigative detention, we remain mindful of the Supreme Court's two initial justifications for allowing seizures based on reasonable suspicion, rather than on probable cause. First, a detention based on a reasonable and articulable suspicion is justified when the need to prevent "imminent criminal activity . . . outweigh[s] the . . . privacy interests implicated by a limited [investigatory] stop."[29] Second, a detention is supposed to involve a "`wholly different kind of intrusion upon individual freedom' than a traditional arrest."[30] Because a detention is supposed to be less intrusive than an arrest, we are particularly cognizant of the level of coercion involved, given the suspected crime.[31] These justifications inform our analysis of the permissible boundaries of investigative detentions.
*407 1. Wright's Initial Stop of Worwood Was Justified Under Reasonable Suspicion
¶ 25 Our analysis of the reasonableness of an officer's actions in the context of an investigative detention requires a dual inquiry.[32] We first consider "whether the officer's action was justified at its inception."[33] We next consider whether the length and scope of the detention are "`strictly tied to and justified by' the circumstances which rendered its initiation permissible."[34]
¶ 26 As to the first inquiry, Wright observed articulable facts that Worwood had been or was about to drive under the influence, which justified his initial stop. He saw a large water spot on the road, a crushed beer can, and later, a cooler. He saw Worwood behind the wheel of his truck. He also smelled alcohol on Worwood's breath. This evidence justified Wright's reasonable suspicion of criminal activity and some intrusion into Worwood's personal liberty.
2. Considering the Totality of the Circumstances, the Scope of Worwood's Detention Exceeded that Justified Under Reasonable Suspicion and Constituted a De Facto Arrest
¶ 27 We next consider the reasonableness of the investigative detention's scope and duration. Because the constitutionality of an investigative detention turns on the interconnection between the purpose of the stop and its subsequent scope, the specific means of detention used by the police in one instance does not create the outer limit for a constitutional investigative detention in every case.[35]
¶ 28 In evaluating the scope of a stop, the court should foremost consider "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly."[36] That being said, officers are not required to use the least intrusive means available in pursuing their investigation; the question is merely "whether the police acted unreasonably in failing to . . . pursue" alternatives.[37] The reasonableness of a detention should be evaluated on the basis of the totality of the circumstances facing the officer, not on judicial second-guessing.[38] The court should consider whether "`the circumstances, viewed objectively, justify [the] action,'" "regardless of the individual officer's state of mind."[39] While an officer's subjective inferences based on the objective facts affect a court's determination of whether reasonable suspicion exists, improper subjective motivations *408 do not negate what would otherwise be a reasonable search based on objectively reasonable facts.[40]
¶ 29 Given the facts of this particular investigative detention, we pause to consider the circumstances under which extending the length of an investigative detention to transport a suspect to another location is justified under reasonable suspicion. An officer's concerns about safety and security can justify extending the scope of an investigative detention.[41] Transporting a suspect to a known crime scene or to the location of a known witness is often justified as the most expeditious means of achieving the purpose of the initial stop.[42]
¶ 30 But transporting a suspect can change the level of coercion involved in an investigative detention to the degree that it is no longer justified under reasonable suspicion. An investigatory detention can become so intrusive that it escalates into a de facto arrest.[43] For instance, moving a suspect from a public place to an enclosed, police-dominated location can change the level of justification required from reasonable suspicion to probable cause.[44] On the other hand, transporting a defendant may be benign when the movement does not change the level of coercion involved in the stop. For example, an investigative detention is not necessarily transformed into a de facto arrest when the suspect is moved a short distance from one public place to another.[45] We agree with the court of appeals' analysis in State v. Chism that "[i]nvestigative acts that are not reasonably related to dispelling or resolving the articulated grounds for the stop are permissible only if they do not add to the delay already lawfully experienced and do not represent any further intrusion on the detainee's rights."[46]
¶ 31 While we are cognizant that there may be circumstances when moving a suspect is necessary because of safety and security concerns, such circumstances are not evident in this case. Although the initial encounter occurred on a dirt road, Wright did not indicate that the road conditions prohibited him from conducting field sobriety tests. He made no indication that the grade, pitch, or width of the road created safety concerns that prohibited him from conducting such tests, and we find no objective facts in the record indicating that such a concern would have been reasonable. There is no indication of traffic and no indication that the weather or time of day prevented Wright from accurately conducting the tests. There is no indication that Wright was concerned about his safety, having come upon the situation while off-duty, in his private car, and unarmed. Further, there is no indication that Worwood was belligerent or even uncooperative. Although the record is silent on *409 these potentially determinative factors, had any of them been present, a more expansive detention may have been justified under reasonable suspicion.
¶ 32 Next, Worwood was not detained and transported to expedite the conclusion of the investigatory detention; if anything, Wright's actions prolonged the investigative detention with no justifiable purpose. After ascertaining that Worwood had slurred speech and bloodshot eyes and smelled of alcohol, the next reasonable step to confirm or dispel Wright's suspicions was to conduct field sobriety tests. Instead of taking this step, Wright instructed Worwood to get into Wright's truck, drove him down Deep Canyon, and detained him at Wright's private residence until an on-duty officer arrived to conduct field sobriety tests. These actions were unreasonable because there is no indication in the factual record that Wright was unable to conduct field sobriety tests at the initial scene of the stop.
¶ 33 Finally, the facts of Worwood's detention in their totality push the coercive nature of this detention beyond the narrow bounds of a constitutional investigative detention. Wright's statement to Worwood that "we'd better have a trooper look at you before you drive anymore" indicates that compliance was mandatory. Worwood was then detained in Wright's vehicle, and his truck was driven away by a stranger Skylar Fautin while Worwood remained in Wright's truck. Wright drove Worwood to Wright's personal residence to await the arrival of Officer Kevin Wright. Whether Worwood sat in the back or front of Wright's vehicle and whether Worwood was detained inside or outside of Wright's residence are unknown facts that may also bear on the level of coercion. Had concerns about safety, security, or the need to expedite the investigation justified Wright's movement of Worwood, these unknown facts may have been critical. In this case, however, the fact that Worwood was placed in Wright's truck and moved to Wright's private residence increased the level of coercion without justification. Consequently, we find that Wright's detention of Worwood exceeded the permissible scope of a constitutional investigative detention.
3. Wright Did Not Have Probable Cause to Justify a De Facto Arrest
¶ 34 Because Worwood's detention amounted to a de facto arrest, we now consider whether there was probable cause to justify an arrest. "Probable cause exists where the facts and circumstances within the officer's knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed."[47]
¶ 35 During the course of the stop, Wright smelled alcohol and observed Worwood's bloodshot eyes and slurred speech. Utah courts generally find that probable cause for DUI exists when slurred speech, bloodshot eyes, and the smell of alcohol are accompanied by failed field sobriety tests.[48] However, in American Fork City v. Singleton, the court of appeals found probable cause for DUI without the benefit of field sobriety tests when the suspect had "glassy, bloodshot eyes," swayed when he walked, and became belligerent when asked to take a field sobriety test.[49] But there was more evidence of the suspect's possible drunkenness in Singleton than was present here, including at least one piece of evidence typically garnered from a traditional field sobriety test: unsteady walking.
¶ 36 We conclude that Worwood's bloodshot eyes and slurred speech and the smell of alcohol did not provide sufficient trustworthy information for Wright to conclude that Worwood had exceeded the legal alcohol limit. Consequently, there was no probable cause for Worwood's de facto arrest. Further, concluding *410 otherwise would essentially eliminate any incentive for officers to conduct field sobriety tests, a policy outcome that would introduce needless subjectivity and potential abuse into drunk driving assessments.
4. Sufficiency of Worwood's Suppression Motion
¶ 37 Before proceeding to our suppression analysis, we pause to consider the dissent's contention that Worwood's challenge below was so ill-defined that the State could not adequately address his suppression motion. After carefully reviewing the record, we conclude that Worwood made and preserved before the trial court the arguments that he later made on appeal. In his initial memorandum in support of his motion to suppress, Worwood established multiple bases for challenging the constitutionality of Wright's stop. First, Worwood argued that Wright's actions constituted a seizure. Second, after reciting the appropriate legal standard and the specific facts surrounding this stop, Worwood argued that "the officer lacked sufficient objective facts to constitute reasonable suspicion or probable cause to arrest." Third, Worwood alternatively argued that if the court finds reasonable suspicion, "the detention was unreasonable as to scope and length of time." Finally, Worwood argued that he was unconstitutionally arrested because he "was taken into custody . . . and not free to leave at the scene of the police encounter."
¶ 38 Throughout its opposition to Worwood's suppression motion, the State never argued that Worwood's federal challenge was vague, incomplete, or lacking requisite specificity. Additionally, at the preliminary hearing on the suppression motion, the State and Worwood had equal opportunity to illicit relevant facts from both Kevin Wright and Korey Wright. We accordingly reject the dissent's suggestion that Worwood's suppression motion was inadequate or that the State viewed it as such.
¶ 39 It has long been the law that once a defendant adequately challenges a warrantless seizure, the State bears the burden of proving the reasonableness of law enforcement's action. In order to meet his initial burden of production,[50] a defendant seeking to suppress evidence must articulate how law enforcement's action infringed the Fourth Amendment.[51] On the basis of our review of the record, we find that Worwood's Fourth Amendment challenge was quite adequate. He clearly challenged the constitutionality of the initial stop, as well as the scope of the stop, and supported that challenge with factual references.
¶ 40 Once a valid constitutional challenge is made, the burden shifts to the State to prove that its warrantless action was justified.[52] And a dearth of evidence cannot be assumed to support the reasonableness of an officer's actions during an investigative detention. Such an assumption turns this well-established proof requirement on its head. The United States Supreme Court has long held that "[i]t is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure."[53] Officers, and consequently *411 the state, are burdened by the requirement of reasonableness throughout an investigative detention because of the "Fourth Amendment's general proscription against unreasonable searches and seizures."[54] This burden is not contingent on what specific evidence is challenged in a defendant's suppression motion, but rather on the nature of the constitutional challenge.
B. The Field Sobriety Tests Must Be Suppressed as Evidence Obtained from an Unconstitutional Detention
¶ 41 Having concluded that the field sobriety tests were conducted after an unconstitutionally expansive investigatory detention of Worwood, we next consider whether the tests are subject to suppression. Because we find that the field sobriety tests were obtained as a result of Worwood's illegal detention, we reverse the court of appeals' affirmation of the district court's denial of Worwood's suppression motion.
¶ 42 When applicable, the exclusionary rule keeps out of trial evidence primarily or derivatively obtained through a violation of an individual's constitutional rights (the "fruit" of unconstitutional police conduct).[55] It was first adopted to deter unlawful police conduct by preventing police from benefiting from activities violative of the Fourth Amendment.[56] Because of the high social cost attendant with suppressing evidence,[57] however, the rule is not operable when the evidence in question has been cleansed of the taint of illegality, a circumstance that can occur in a number of different ways.[58]
¶ 43 Evidence will not be excluded as fruit of an illegal search or seizure if the illegality is not the "but for" cause of the evidence's discovery.[59] The causal chain between the illegality and the discovered evidence can be broken if the evidence was also "discovered through independent and lawful activity"in other words, through an independent source.[60] The independent source doctrine has a forward-looking corollary in the inevitable discovery doctrine. While the independent source doctrine looks at what was actually discovered, the inevitable discovery doctrine considers what hypothetically would have been discovered.[61] For courts to apply the inevitable discovery doctrine, "there must be persuasive evidence of events or circumstances apart from those resulting in illegal police activity that would have inevitably led to discovery."[62] In sum, the independent source and inevitable discovery doctrines are two ways that the causal link between the initial illegality and the evidence can be broken.
¶ 44 Even if the illegality is the "but for" reason for the evidence's discovery, it should still be admitted if it is "sufficiently attenuated to dissipate the taint" of the illegality.[63] The court asks whether the challenged evidence was obtained "`by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'"[64] Attenuation can occur if the connection between the illegality and the evidence is too remote.[65] It *412 can also occur if "the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained."[66] As a final policy consideration, the exclusionary rule is applicable only "where its deterrence benefits outweigh its substantial social costs."[67]
¶ 45 The State argues that the challenged field sobriety test results were "conducted on the basis of pre-detention reasonable suspicion." The State argues that because there was a constitutional basis for the field sobriety tests without the illegal detention, the evidence was not obtained by exploiting the initial illegality. In short, the State argues that there was no causal chain linking the Fourth Amendment violation to the field sobriety tests.
¶ 46 In support of this argument, the State cites cases in which the causal links between the illegality and the evidence were never established. For instance, in United States v. Ibarra-Sanchez, officers found evidence of a crime after conducting a legal stop but an illegal arrest.[68] Because the probable cause that led to the discovery of the challenged evidence was the fruit of the legal stop rather than the illegal arrest, there was no causal connection between the illegal arrest and the discovered evidence.[69] And in Hudson v. Michigan, police had enough evidence to establish probable cause and obtain a warrant, but violated the knock-and-announce rule.[70] The Court stated that "the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence. Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house."[71]
¶ 47 The circumstances of both cases differ from those present here. Unlike Ibarra-Sanchez and Hudson, Worwood's illegal detention was the but-for cause of Officer Kevin Wright's administration of the field sobriety tests at Wright's home. There was no intervening event to break the causal chain. The fact that before the illegality reasonable suspicion would have justified further investigation does not break the actual linkages between the illegal detention and the field sobriety tests. Investigations under reasonable suspicion do not have a shelf life, unlike a transportable warrant. An officer must either confirm the suspicion by establishing probable cause for arrest or dispel the suspicion and release the suspect. Wright took neither constitutional path. Instead, he not only exploited the illegality in order to obtain the evidence needed for probable cause, he arguably created the illegality in order to obtain the evidence without conducting the arrest himself. The field sobriety tests would not have been obtained absent the illegality or different choices by Wright.
¶ 48 Under our decision in State v. Topanotes,[72] we cannot assume that Wright would have conducted a field sobriety test at the scene of the initial encounter if he had not chosen to illegally transport Worwood. In Topanotes, officers retained the defendant's identification during a consensual stop, elevating the stop to one requiring reasonable suspicion.[73] A subsequent warrants check revealed two outstanding arrest warrants.[74] In the search incident to arrest, officers found heroin on the defendant.[75] Relying on the defendant's cooperative nature throughout the stop, the State argued that the heroin would have been inevitably discovered had *413 the defendant not been unlawfully detained.[76] We rejected this argument, reasoning that just because the defendant was cooperative while her identification was seized, that did not mean that she would have been cooperative if she had been truly free to leave.[77]
¶ 49 We reaffirm our conclusion in Topanotes that "[c]ases that rely upon individual behavior as a crucial link in the inevitable discovery chain, particularly when that behavior is heavily influenced by the illegality that did occur, rarely sustain an inevitable discovery theory."[78] Absent the illegality, Wright may have conducted the field sobriety tests on the roadside, but he may have just as likely released Worwood to avoid the trouble of making an off-duty arrest.
¶ 50 Finally, we find that the deterrent benefits of suppression in this case clearly outweigh its social costs. Allowing an officer to capriciously move a defendant without fear that subsequently obtained evidence would be suppressed creates an incentive for police misconduct. Denying the defendant's suppression motion encourages an "if we hadn't done it wrong, we would have done it right" defense, insulating officers from any repercussions from unconstitutionally extending investigative detentions.[79]
CONCLUSION
¶ 51 Under the Fourth Amendment, we find that the scope of Worwood's detention exceeded the bounds of a constitutional investigative stop. Although Wright's initial stop of Worwood was justified under reasonable suspicion, the subsequent detention was needlessly extended from the point when Worwood was confined in Wright's truck. As the field sobriety tests were discovered because of the unreasonably excessive scope of the investigatory detention, we hold that the results of the tests should be suppressed. We remand this case to the court of appeals to remand to the district court for a ruling consistent with this opinion.
¶ 52 Chief Justice DURHAM, Justice DURRANT, and Justice NEHRING concur in Justice PARRISH'S opinion.
WILKINS, Associate Chief Justice, dissenting:
¶ 53 I respectfully dissent.
¶ 54 My colleagues conclude that the off-duty officer's initial "stop" of Worwood was constitutionally justified, and that further investigation could have been undertaken at that time by use of field sobriety tests without offense to the constitution. However, they also conclude that the constitution is offended by the off-duty officer transporting Worwood from the rural mountain dirt road where he was discovered behind the wheel of his vehicle smelling of alcohol with bloodshot eyes and slurred speech. This, they conclude, results in a de facto arrest without adequate justification. I disagree.
¶ 55 Worwood filed a motion to suppress "the evidence" due to unspecified and unidentified violations of the Fourth Amendment and article I, section 14 of the Utah Constitution. He made no argument based upon the alleged violation of the state constitutional provision he cited. He did little more with the federal constitutional claim.
¶ 56 On the basis of this thin legal effort, the State was required to respond in defense of the acts of the off-duty officer in moving Worwood down the Deep Canyon road a mile and a half to meet an on-duty officer who had the communication, record-keeping, security, and containment equipment not possessed by the off-duty officer when he chanced to encounter Worwood on the mountain road. Against the ill-defined challenge leveled by Worwood, the State presented evidence of the actions and circumstances surrounding the eventual formal arrest of Worwood, a serial drunk driver. We do not know from the record before us what evidence was available to the State but not presented at the time of the trial court hearing on Worwood's *414 motion to suppress "the evidence" against him. Had Worwood presented a clear and concise challenge to the degree of detention to which he had been subjected, and the basis upon which he considered the objective facts surrounding that detention to have been inadequate as a matter of constitutional law, the State may well have been able to address those challenges. Although the State bears the burden of proving the reasonableness of an officer's actions during an investigative detention, that burden arises only when the actions and their reasonableness have been challenged. Such a challenge has to be recognizable to be sufficient.
¶ 57 As my colleagues note, there are many probative and useful facts that we cannot discern from the record. For example, we do not know what concern the road conditions at the time of the first contact may have presented. We do not know the grade, width, pitch, surface quality, or other condition of the road surface. We know not the weather, time of day, light conditions, or other site factors that might have influenced the off-duty officer's decision to move Worwood down canyon to investigate further. We do not know if the officer was concerned about his safety, or that of his companion, or of Worwood, since the officer was in his private vehicle, unarmed, without communication equipment, and off-duty. We do not know if Worwood was uncooperative, or even belligerent, or if the officer was aware of Worwood having a reputation for resistant behavior. We do not know why the officer took Worwood the additional mile and one half to meet an on-duty officer. We do not know if Worwood was required to ride in front or back of the off-duty officer's vehicle, or whether he was taken inside or remained outside of the residence to which he was taken to meet the on-duty officer.
¶ 58 We do not know from the record whether or not Worwood was unsteady on his feet at the time he moved from his truck to the off-duty officer's vehicle. This alone may have been enough to justify Worwood's arrest without administration of field sobriety tests.
¶ 59 All of these unknown objective facts were within the personal knowledge of the off-duty officer, and presumably could have been competently testified to at the time of Worwood's motion to suppress "the evidence" against him. Had they been placed in contest by Worwood, it is difficult to imagine that the State, when it had the off-duty officer on the stand, would not have sought to present the evidence to the trial court.
¶ 60 Unlike my colleagues, I conclude that the objective facts in the record are sufficient to justify the actions of the off-duty officer. In addition, given the inadequate challenge mounted by Worwood, the State has adequately defended those actions. Only by virtue of a careful analysis made for the first time on appeal, and by the court at that, has Worwood finally produced a meaningful challenge. The State, and the off-duty officer, have been denied any opportunity to prove the reasonableness of the actions taken by the failure of the challenger to raise the questions now found to be so troubling by my colleagues.
¶ 61 Finally, I am troubled by the suggestion in the majority opinion that the "benefits" of suppression of the field sobriety tests against Worwood "clearly outweigh the social costs." This cost-benefit analysis appears to rely heavily on two presumptions with which I do not agree: first, that not suppressing the evidence of drunk driving in this instance would create an incentive for law enforcement officers to knowingly violate the law as embodied in the United States Constitution; and second, that the consequences of repeat drunk driving are preferred to those of the incentive our decision would create to violate the law.
¶ 62 In response, I believe the perverse incentive feared by my colleagues is a fiction. I believe the suppression of otherwise valid incriminating evidence against an accused wrong-doer has little impact on police conduct. Those officers genuinely devoted to the fair and reasonable application of the law will do exactly as they do now: they will continue to seize drugs found in transit, stop crimes in progress, and struggle to understand and apply the myriad decisions of the various courts restricting their scope of action. Those few, and I do believe it is a very small minority of all law enforcement officers, *415 who knowingly violate the law in their efforts to enforce it, will continue to do so, but with greater care in how it is reported and recorded. Neither category of officer will be any more likely to abide the law than they already were prior to our decision today.
¶ 63 In addition, I believe the scourge of death and devastation brought to unsuspecting and innocent others by those who choose to drive under the disabling influence of alcohol or drugs is the greater social evil at issue in this case.
¶ 64 Without regard to these beliefs and policy concerns, it is my view that the law dictates a different result in this case than that arrived at by my colleagues. To be perfectly clear: I am not of the view that failings in Worwood's initial suppression motion lessen the State's burden to prove the reasonableness of the officer's conduct. It is simply my view that the initial burden falls upon the defendant to present to the trial court a clearly articulated challenge, or to suffer the risks that his challenge will be unsuccessful, as here. We require parties to place their opponents and the court on notice of the boundaries of the dispute. This is intended to assist the court in identifying and making just and fully informed decisions. Moreover, the proponent of the motion has the burden of proving the factual predicate of the action sought. A proponent failing to do so is not entitled to relief.
¶ 65 I would affirm the court of appeals, the decision of the trial court, and the conviction of Mr. Worwood.
NOTES
[1] Utah Code Ann. § 41-6a-503(2) (2005).
[2] See State v. Worwood, 2005 UT App 539, ¶ 4, 127 P.3d 1265.
[3] Id. ¶ 9.
[4] Id. ¶ 13 (Thorne, J., dissenting).
[5] Id. ¶ 16 (Thorne, J., dissenting).
[6] State v. King, 2006 UT 3, ¶ 12, 131 P.3d 202; State v. Rynhart, 2005 UT 84, ¶ 9, 125 P.3d 938.
[7] State v. Levin, 2006 UT 50, ¶ 23, 144 P.3d 1096; State v. Brake, 2004 UT 95, ¶ 15, 103 P.3d 699.
[8] Levin, 2006 UT 50, ¶ 20, 144 P.3d 1096; State v. Hansen, 837 P.2d 987, 988 (Utah Ct.App. 1992).
[9] Worwood, 2005 UT App 539, ¶ 3 n. 1, 127 P.3d 1265; State v. Arguelles, 2003 UT 1, 67-68, 63 P.3d 731.
[10] See, e.g., Brake, 2004 UT 95, ¶¶ 2, 35 & n. 3, 103 P.3d 699; State v. Warren, 2003 UT 36, ¶ 2, 78 P.3d 590.
[11] See, e.g., Brigham City v. Stuart, 2005 UT 13, ¶ 14, 122 P.3d 506, reversed, ___ U.S. ___, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006).
[12] See West v. Thomson Newspapers, 872 P.2d 999, 1005-07 (Utah 1994).
[13] Id. at 1006 (quoting Christine M. Durham, Employing the Utah Constitution in the Utah Courts, Utah B.J., Nov. 1989, at 26).
[14] See, e.g., State v. Thompson, 810 P.2d 415, 418 (Utah 1991) (finding that Utah citizens have a "right to be secure against unreasonable searches and seizures" of their bank records, although the Fourth Amendment provides no such protection); State v. Larocco, 794 P.2d 460, 465-71 (Utah 1990) (providing greater state constitutional protection from warrantless vehicle searches than that provided under the Fourth Amendment).
[15] See State v. Harris, 2004 UT 103, ¶ 23, 104 P.3d 1250; State v. Calliham, 2002 UT 86, ¶ 32 n. 8, 55 P.3d 573.
[16] State v. Johnson, 774 P.2d 1141, 1144 (Utah 1989) (quoting State v. Tillman, 750 P.2d 546, 551 (Utah 1987)).
[17] State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (quoting State v. Brown, 856 P.2d 358, 361 (Utah Ct.App.1993)); accord State v. Cram, 2002 UT 37, ¶ 9, 46 P.3d 230 ("[T]o preserve a claim or an objection for appellate review, the defendant must raise a timely or contemporaneous claim or objection.").
[18] Brown, 856 P.2d at 361.
[19] State v. Holgate, 2000 UT 74, ¶¶ 11-13, 10 P.3d 346; State v. Irwin, 924 P.2d 5, 7 (Utah Ct.App.1996).
[20] State v. Lafferty, 749 P.2d 1239, 1247 n. 5 (Utah 1988); accord Brigham City v. Stuart, 2005 UT 13, ¶ 14, 122 P.3d 506 ("[W]e are resolute in our refusal to take up constitutional issues which have not been properly preserved, framed and briefed. . . ."), reversed, ___ U.S. ___, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006).
[21] See, e.g., State v. DeBooy, 2000 UT 32, ¶ 12, 996 P.2d 546; Soc'y of Separationists v. Whitehead, 870 P.2d 916, 940 (Utah 1993) ("The federal rulings set the floor for federal constitutional protections which we must respect in interpreting the scope of our own constitution's provisions.").
[22] State v. Markland, 2005 UT 26, ¶ 10 n. 1, 112 P.3d 507 (quoting State v. Johnson, 805 P.2d 761, 763 (Utah 1991)).
[23] Id. ¶ 10 (citing United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002)).
[24] Id. (quoting State v. Chapman, 921 P.2d 446, 450 (Utah 1996)).
[25] Black's Law Dictionary 1273 (7th ed.1999).
[26] State v. Alverez, 2006 UT 61, ¶ 14, 147 P.3d 425.
[27] Markland, 2005 UT 26, ¶ 10, 112 P.3d 507 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).
[28] Florida v. Royer, 460 U.S. 491, 497-500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (holding that the state must prove that the seizure was "sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure"); United States v. Carhee, 27 F.3d 1493, 1496 & n. 2 (10th Cir.1994).
[29] United States v. Sharpe, 470 U.S. 675, 689, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) (Marshall, J., concurring) (citing Terry, 392 U.S. at 26, 88 S. Ct. 1868).
[30] Id. (quoting Terry, 392 U.S. at 26, 88 S. Ct. 1868); Dunaway v. New York, 442 U.S. 200, 212, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979) (indicating that intrusions based on reasonable suspicion rather than probable cause are justified only when they fall "short of the kind of intrusion associated with an arrest").
[31] Kaupp v. Texas, 538 U.S. 626, 630-31, 123 S. Ct. 1843, 155 L. Ed. 2d 814 (2003) (finding that a de facto arrest occurred when police took a scantily clad, adolescent suspect from his home in the middle of the night to police headquarters); Hayes v. Florida, 470 U.S. 811, 815-16, 105 S. Ct. 1643, 84 L. Ed. 2d 705 (1985) ("At some point in the investigative process, police procedures can qualitatively and quantitatively be so intrusive with respect to a suspect's freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments."); Royer, 460 U.S. at 499, 103 S. Ct. 1319 ("Detentions may be `investigative' yet violative of the Fourth Amendment absent probable cause. In the name of investigating a person who is no more than suspected of criminal activity, the police may not . . . seek to verify their suspicions by means that approach the conditions of arrest."); Dunaway, 442 U.S. at 212, 99 S. Ct. 2248 (taking a suspect from a neighbor's home in a police car to a police station interrogation room is "in important respects indistinguishable from a traditional arrest").
[32] Terry, 392 U.S. at 19-20, 88 S. Ct. 1868.
[33] Id. at 20, 88 S. Ct. 1868.
[34] Id. at 19, 88 S. Ct. 1868 (quoting Warden v. Hayden, 387 U.S. 294, 310, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967) (Fortas, J., concurring)); Sharpe, 470 U.S. at 682, 105 S. Ct. 1568; State v. Johnson, 805 P.2d 761, 763 (Utah 1991).
[35] People v. Celis, 33 Cal. 4th 667, 16 Cal. Rptr. 3d 85, 93 P.3d 1027, 1032-33 (2004) (finding that brandishing weapons and handcuffing a drug trafficking suspect was justified given the suspected crime, but acknowledging that a routine traffic stop would "rarely justify" a comparable police response).
[36] Sharpe, 470 U.S. at 686, 105 S. Ct. 1568 (citing Michigan v. Summers, 452 U.S. 692, 701 n. 14, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981)).
[37] Id. at 687, 105 S. Ct. 1568.
[38] Id. at 686-87, 105 S. Ct. 1568; State v. Warren, 2003 UT 36, ¶ 14, 78 P.3d 590.
[39] Brigham City v. Stuart, ___ U.S. ___, ___, 126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650 (2006) (quoting Scott v. United States, 436 U.S. 128, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978)); accord Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) ("Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."); Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (indicating that a Fourth Amendment reasonableness inquiry requires the court to consider "whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation"); State v. Lopez, 873 P.2d 1127, 1136-38 (Utah 1994) ("[S]ubjective focus on the officer's state of mind at the time of the stop is inconsistent with Fourth Amendment law.").
[40] State v. Alverez, 2006 UT 61, ¶ 15, 147 P.3d 425.
[41] Florida v. Royer, 460 U.S. 491, 504-05, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983).
[42] See, e.g., In re Carlos M., 220 Cal. App. 3d 372, 269 Cal. Rptr. 447, 452 n. 4, 452-55 (1990) (holding that an officer was expeditiously pursuing his investigation when he transported two suspects to a hospital to be identified by a rape victim).
[43] Dunaway v. New York, 442 U.S. 200, 212, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979) (holding that a detention where a suspect was "taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room" "was in important respects indistinguishable from a traditional arrest").
[44] Id.; Royer, 460 U.S. at 502-03, 103 S. Ct. 1319 (holding that a suspect interrogated in "a police interrogation room" while the police held his airline ticket, identification, and luggage was "[a]s a practical matter . . . under arrest"); Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.2(g) (4th ed.2004) (indicating that a change in the degree of coerciveness may "justify the conclusion that the movement of a suspect has transformed the stop into an arrest even though the relocation was not to a police facility").
[45] See United States v. Nurse, 916 F.2d 20, 22, 24 (D.C.Cir.1990) (escorting a defendant into the main public concourse of a train station from an outside taxi stand did not change the level of coercion enough to exceed the limitations of reasonable suspicion); United States v. Mendenhall, 446 U.S. 544, 563, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (Powell, J., concurring) (detaining a suspect in a public place is less coercive than detention where the suspect is "isolated from assistance").
[46] 2005 UT App 41, ¶ 15, 107 P.3d 706 (citation, internal quotation marks, and brackets omitted).
[47] State v. Menke, 787 P.2d 537, 542 (Utah Ct. App.1990) (citation, internal quotation marks, and brackets omitted).
[48] See State v. Vialpando, 2004 UT App 95, ¶¶ 3-4, 89 P.3d 209; Layton City v. Noon, 736 P.2d 1035, 1038 (Utah Ct.App.1987). But see Commonwealth v. Eckert, 431 Mass. 591, 728 N.E.2d 312, 319 (2000) (finding probable cause exclusively from observations of red and watery eyes, slurred speech, and the smell of alcohol).
[49] 2004 UT App 172U, para. 3, 2004 WL 1368211.
[50] United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir.1977) ("[T]he burden of production and persuasion generally rests upon the movant in a suppression hearing . . . [;] [however,] if a defendant produces evidence that he was arrested or subjected to a search without a warrant, the burden shifts to the government to justify the warrantless arrest or search."); United States v. Crocker, 510 F.2d 1129, 1135 (10th Cir.1975) ("Logic dictates that a pre-trial Motion to Suppress filed by an accused does in fact cast the burden upon the movant to present facts necessary to sustain his position.").
[51] United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir.1994) ("As to the warrantless encounter, [the defendant] bears the burden of proving whether and when the Fourth Amendment was implicated. . . . The government then bears the burden of proving that its warrantless actions were justified. . . . ").
[52] Id.; United States v. Roch, 5 F.3d 894, 897 (5th Cir.1993); Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 11.2(b), at 42 (4th ed. 2004) ("[I]f the police acted without a warrant the burden of proof is on the prosecution.").
[53] Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983).
[54] Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
[55] State v. Topanotes, 2003 UT 30, ¶ 13, 76 P.3d 1159.
[56] Weeks v. United States, 232 U.S. 383, 393-98, 34 S. Ct. 341, 58 L. Ed. 652 (1914).
[57] Hudson v. Michigan, ___ U.S. ___, ___, 126 S. Ct. 2159, 2163, 165 L. Ed. 2d 56 (2006) (citing United States v. Leon, 468 U.S. 897, 907, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)).
[58] Topanotes, 2003 UT 30, ¶¶ 13-14, 76 P.3d 1159.
[59] Hudson, 126 S.Ct. at 2164; Segura v. United States, 468 U.S. 796, 815, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984).
[60] Topanotes, 2003 UT 30, ¶ 13, 76 P.3d 1159.
[61] Id. ¶ 14.
[62] Id. ¶ 16.
[63] Segura, 468 U.S. at 815, 104 S. Ct. 3380.
[64] Id. at 804-05, 104 S. Ct. 3380 (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)).
[65] Hudson, 126 S.Ct. at 2164; Wong Sun, 371 U.S. at 491, 83 S. Ct. 407.
[66] Hudson, 126 S.Ct. at 2164, 2165 (holding that the interests protected by the knock and announce rule "ha[d] nothing to do with the seizure of the evidence").
[67] Id. at 2163 (citation and internal quotation marks omitted).
[68] 203 F.3d 356, 357 (5th Cir.2000) (per curiam).
[69] Id. at 357.
[70] ___ U.S. ___, ___, 126 S. Ct. 2159, 2162, 165 L. Ed. 2d 56 (2006).
[71] Id. at 2164.
[72] 2003 UT 30, 76 P.3d 1159.
[73] Id. ¶¶ 2, 5.
[74] Id. ¶ 3.
[75] Id.
[76] Id. ¶ 19.
[77] Id. ¶ 20.
[78] Id.; cf. Segura, 468 U.S. at 816, 104 S. Ct. 3380 (declining to assume that the defendant and her cohorts would have destroyed the evidence sought in the warrant had the initial illegal entry not occurred).
[79] Topanotes, 2003 UT 30, ¶ 19, 76 P.3d 1159. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261672/ | 861 F.Supp. 266 (1994)
UNITED STATES of America,
v.
Omar Ahmad Ali Abdel RAHMAN, a/k/a "Omar Amed Ali," a/k/a "Omar Abdel Al-Rahman," a/k/a "Sheik Rahman," a/k/a "The Sheik," a/k/a "Sheik Omar," El Sayyid Nosair, a/k/a "Abu Abdallah," a/k/a "El Sayyid Abdul Azziz," a/k/a "Victor Noel Jafry," Ibrahim A. El-Gabrowny, Siddig Ibrahim Siddig Ali, Clement Rodney Hampton-El, a/k/a "Abdul Rashid Abdullah," a/k/a "Doctor Rashid," Mohammed Abouhalima, Abdo Mohammed Haggag, Amir Abdelgani, a/k/a "Abdou Zaid," Fares Khallafalla, a/k/a "Abdou Fares," Tarig Elhassan, Fadil Abdelgani, Mohammed Saleh, a/k/a "Mohammed Ali," Victor Alvarez, a/k/a "Mohammed," Matarawy Mohammed Said Saleh, a/k/a "Wahid," Earl Gant, a/k/a "Abd Rashid," a/k/a "Abd Jalil," a/k/a "Abdur Rasheed," Defendants.
No. S3 93 Cr. 181 (MBM).
United States District Court, S.D. New York.
August 25, 1994.
*267 Patrick J. Fitzgerald, Robert S. Khuzami, Andrew C. McCarthy, Alexandra Rebay, Asst. U.S. Attys., New York City, for U.S.
Wesley M. Serra, Brown, Berne & Serra, New York City, for defendant Alvarez.
Steven M. Bernstein, New York City, for defendant Amir Abdelgani.
William M. Kunstler, Ronald L. Kuby, New York City, for defendant El-Gabrowny.
Howard Leader, New York City, for defendant Siddig-Ali.
OPINION AND ORDER
MUKASEY, District Judge.
The government, as it was required to do by United States v. Levy, 25 F.3d 146, 152 (2d Cir.1994) and its precursors, see United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir. 1986), has moved to disqualify William M. Kunstler and Ronald L. Kuby and their firm, *268 Kunstler & Kuby (collectively, "the Kunstler firm" or "the firm"), from representing at trial their remaining client in this case, defendant Ibrahim A. El-Gabrowny, and from resuming their representation of defendant Siddig Ibrahim Siddig Ali. As set forth below, there are two insuperable obstacles to the Kunstler firm's continued representation of El-Gabrowny or its renewed representation of Siddig Ali that arise from the firm's relationships with defendants and potential witnesses in this case and from the conduct and statements of Kunstler and Kuby: (i) the tangle of conflicting interests that beset the Kunstler firm, because of both past multiple representation of clients and the Kunstler firm's own conduct, that could hamper effective representation of El-Gabrowny and Siddig Ali, and (ii) the substantial possibility that conduct by the Kunstler firm will be the subject of relevant proof at trial, with the result that both Kunstler and Kuby would be cast as unsworn witnesses if they were to take an active role in the courtroom at trial. Therefore, the motion is granted.
I.
The immediate occasion for this motion, although by no means the only reason for it, was the stated decision in June by Siddig Ali to cease being represented by the Kunstler firm, obtain other counsel, and cooperate with the government. In his initial contact with the government preceding this stated decision, and throughout his later proffer sessions with the government, Siddig Ali was represented by Howard Leader, an attorney he had selected and contacted on his own and who is a member of this Court's panel of assigned counsel. (6/21/94 Tr. 6-7) In Siddig Ali's presence, and with his concurrence, Leader was appointed to represent him. (Id. at 13)
Although the government has not said so explicitly, it has at least implied that Siddig Ali's proffer agreement with the government, reached at the time he disclosed to the court his decision to cooperate, provides, as such agreements routinely do, that although disclosures during proffer sessions may not be used against him on the government's direct case even absent a final cooperation agreement, they may be used against him if, absent such a final agreement, he testifies at trial in a manner inconsistent with those disclosures. (See 8/17/94 Gov't Ltr. at 3 (arguing that if Siddig Ali contradicts statements to the government "he will be vigorously cross-examined regarding them".))
After several weeks of Siddig Ali's proffers, and after the disqualification motion was fully submitted, the government on August 12 notified the court and all defense counsel that it would not conclude any cooperation agreement with Siddig Ali but that it nonetheless would press its motion to disqualify the Kunstler firm. On August 15, Siddig Ali and Leader appeared in court with government counsel. Leader disclosed that he had been present "at every single debriefing that has occurred between my client and the government." (8/15/94 Tr. 4) He also confirmed that Siddig Ali would not plead guilty and cooperate but rather would go to trial. (Id.) Leader asked to be relieved from further representation of Siddig Ali because:
I would feel ... in a great deal of difficulty to make out defenses, follow lines of cross-examination, and ultimately make arguments to a jury
THE COURT: If they conflicted with the representations by your client that you had heard previously?
MR. LEADER: Precisely, Your Honor.
(Id.)
During the same conference, Leader stated that Siddig Ali wished to resume being represented by the Kunstler firm and to return to general population at the Metropolitan Correctional Center ("MCC") along with the other defendants in the case. (Id. at 5, 7-8) I told Leader and Siddig Ali that because resumed representation by the firm might be problematic, they should try to secure alternative counsel. (Id. at 5, 9)
On August 16, the day after the conference discussed above, I received two letters from the Kunstler firm. One stated that Siddig Ali had called the firm from the MCC and said "that the statements he had made to the government [otherwise unspecified] were false, and that he informed the government *269 that these statements were false." (8/16/94 ltr. (2 pages) at 1) The second informed me that Siddig Ali had requested a visit from either Kunstler or Kuby and invited me to "so order" the letter itself so as to facilitate their entry into the MCC. (8/16/94 ltr. (1 page)) By letter dated August 17, 1994, Leader informed me that Siddig Ali did not wish to meet with either Kunstler or Kuby.
On August 18, the parties appeared in court, with Siddig Ali represented by Leader, who stated that after further consultation, Siddig Ali did not wish to be represented by the Kunstler firm. Despite that, Kunstler and Kuby repeatedly sought an order directing that they be allowed to meet with Siddig Ali, apparently to debrief him about his disclosures to the government. That request was denied. (8/18/94 Tr. 16-20)
The August 18 conference addressed also whether the Kunstler firm may continue to represent El-Gabrowny. When the court raised the question of whether it might be necessary to secure from El-Gabrowny a waiver of the Kunstler firm's possible conflicts of interest in addition to the one secured at the time the firm began to represent Siddig Ali (see infra p. 269 n. 1), Kunstler immediately took the position that the prior waiver would suffice. (8/18/94 Tr. 4) Kuby added that El-Gabrowny was "willing to issue the same type of waiver that he issued before." (Id. at 269) Counsel informed the court that El-Gabrowny had seen all the government's submissions on the subject of possible conflicts other than the government's August 17, letter, which counsel then reviewed with El-Gabrowny. However, it later became apparent that the Kunstler firm had not reviewed with El-Gabrowny the government's submissions on the subject of conflict of interest, and it was agreed that El-Gabrowny would review that material with Anthony Ricco, Esq., whom El-Gabrowny selected to replace Kunstler and Kuby if they were disqualified as his counsel. (8/18/94 Tr. 10-13)
On the morning of August 23, Ricco notified the court that he had reviewed all the government's submissions with El-Gabrowny, and that the defendant "has decided to execute a waiver of any conflict of interest pertaining to the continued representation by Mr. Kunstler or Mr. Kuby," with one proviso:
However, the defendant has expressed concern over unanticipated and unforeseen testimony and other evidence which may burgeon as the trial progresses. Accordingly, Mr. El-Gabrowny requests that the court appoint standby counsel, pursuant to the court's November 9, 1993 [opinion], to ensure that his Sixth Amendment right[s] to confrontation and cross-examination are not impaired by his decision to continue with Mr. Kunstler and Mr. Kuby as counsel.
(8/23/94 Ricco Ltr. at 1-2)
That afternoon, the parties appeared in court and I solicited from El-Gabrowny his understanding of the conflict issues and his decision as to whether to waive them. The following exchange ensued:
THE COURT: Can you give me a brief summary of what your awareness is, what your understanding is of the conflict problem?
THE DEFENDANT: (In English) I do understand that because previous relationship through my lawyers and former clients my lawyers won't be able fully to defend me.
THE COURT: May not be able.
THE DEFENDANT: (In English) May not be able to fully defend me. They are not going to be able to cross-examine a former client.
THE COURT: Or make arguments that could hurt a former client.
THE DEFENDANT: (In English) I understand that might be actual or potential conflict of interest, might show up during the trial.
THE COURT: Okay. And the question is do you want to go ahead and be represented by them or not?
THE DEFENDANT: (In English) Yes.
(8/23/94 Tr. 3-4) During that appearance, Kuby, Kunstler and El-Gabrowny all echoed the desire expressed in Ricco's letter for appointment of standby counsel (8/23/94 Tr. 4, 7-9), which they repeatedly presented, incorrectly, as the court's own proposal for *270 overcoming current conflicts. Indeed, Kuby went so far as to suggest that I had anticipated the current dispute over conflicts of interest when I mentioned appointment of standby counsel in a November 9, 1993 opinion.[1]
That procedural history was preceded by a far longer record of the Kunstler firm's relationships and activities, as set forth below.
II.
A. The Firm's Prior Representation of Defendants and Others
The Kunstler firm has a professional relationship dating back at least to 1990 with people who since have become defendants in this case. In 1990 and 1991, Kunstler, along with others, represented El-Sayyid Nosair at his New York State trial on charges arising from the November 5, 1990 murder of Rabbi Meir Kahane. That trial ended with Nosair's acquittal of murder and some assault charges, and his conviction on other assault and weapons charges. The Kunstler firm has represented Nosair in connection with the appeal of that conviction, although Nosair is represented in this case by court-appointed counsel. The Kahane murder is charged as an overt act in Count One and separately as murder in aid of racketeering in Count Five of the indictment. Charges related to the Kahane murder are set forth in Counts Six, Eight, Nine, and Ten.
El-Gabrowny is Nosair's cousin, and the Kunstler firm earlier informed the court that El-Gabrowny was instrumental in organizing the Muslim community in support of Nosair during the state court trial. (See 4/1/93 Tr. 7) El-Gabrowny was arrested and initially indicted in March 1993 for crimes growing out of an altercation between El-Gabrowny and a law enforcement officer who was seeking to execute a search warrant at El-Gabrowny's house in connection with the investigation into the bombing of the World Trade Center. He was represented from the outset by the Kunstler firm.
At the time of his arrest, El-Gabrowny was found in possession of allegedly forged Nicaraguan passports bearing the photographs of Nosair and his family and expiration dates well before Nosair's scheduled release from prison. The government has argued that securing Nosair's early release from prison was a motive and goal of the seditious conspiracy charged in the indictment. (5/4/94 Gov't Mem. at 28, 34) In addition, the government has alleged that it will prove El-Gabrowny administered a fund raised for Nosair's defense, from which some fees were paid to the Kunstler firm and which was used also to finance some of the unlawful conduct charged in the indictment. The government has stated as well that Siddig Ali's proffers during the period he was discussing cooperation included statements which, if repeated in court, would incriminate El-Gabrowny, both directly and indirectly. (7/28/94 Gov't Mem. at 21, 23, 25)[2]
The government has disclosed also that in March 1993 the FBI sought to question Abdo Mohammed Haggag, later indicted in this case. The government has stated that Haggag, *271 who since has apparently agreed to cooperate with prosecutors, then consulted Omar Ahmad Ali Abdel Rahman, a Muslim cleric and alleged to be the leader of the seditious conspiracy charged in this case, who told the Kunstler firm through Ahmed Abdel Sattar to contact Haggag. Kuby then allegedly called the FBI, stated that the firm was representing Haggag, and directed that the FBI not contact Haggag further. (7/5/94 McCarthy Aff. ¶ 2(c)) The government has proffered also that at or about the same time the FBI interviewed Sattar, who has since been designated by Rahman as a paralegal to assist in his defense. The FBI received a letter from Kuby dated March 30, 1993, stating that Sattar did not wish to have further contact with the FBI and expressing the "grave concerns" of Kuby and unnamed others over FBI "`attempts to recruit informers.'" (7/5/94 McCarthy Aff. ¶ 3)
In June 1993, when the Siddig Ali and others were arrested on charges that led to the first superseding indictment in this case, the Kunstler firm represented Siddig Ali from the time of his arrest until Siddig Ali retained Leader in June 1994. This joint representation was permitted only after both Siddig Ali and El-Gabrowny waived any possible conflict in a hearing pursuant to United States v. Curcio, 680 F.2d 881 and 694 F.2d 14 (2d Cir.1982). Before those waivers were secured, however, I suggested that both defendants consult independent counsel, appointed under the Criminal Justice Act ("CJA") with respect to possible conflicts of interest.
Kunstler objected, stating immediately in open court, without consulting either defendant, that `[t]hey are perfectly willing to be represented here by me and they are here and they are willing to waive any alleged conflict of interest.' (7/15/93 Tr. 17) He added that he did not want any CJA attorney `talking to either one of them.' When I noted that neither defendant would be obligated to talk to independent counsel, but only to listen to an explanation of the risks of dual representation, Kunstler responded, `There are no risks here, Judge, except those created by the government.' (Id. at 18)
Rahman, 837 F.Supp. at 66.
In August 1993, when another superseding indictment was returned adding Rahman and Nosair as defendants, Rahman was represented initially by retained counsel who informed the court by letter dated September 21, 1993 that he could no longer continue to represent Rahman because they could not arrive at a satisfactory fee arrangement. In a letter dated the same day, the Kunstler firm, already representing two defendants in the case, notified the court that "[f]or some time, persons acting on behalf of" Rahman had asked that firm to be his counsel, and that on the night of September 20, even before the withdrawal letter from retained counsel had been written, "the Sheik was able to reach Mr. Kuby at home, by telephone, and formally requested that we assume representation." The firm simultaneously proffered a notice of appearance. (9/24/93 Memorandum and Order at 1)
The Kunstler firm eventually was permitted to appear in behalf of Rahman, but the government moved in October 1993 to disqualify the Kunstler firm from representing more than one client. I ruled on November 9, 1993 that the firm could represent either El-Gabrowny and Siddig Ali, or Rahman, but not all three, and that in default of a choice the firm would represent clients in the order in which it represented them from the start. As a practical matter this meant that the firm would represent Siddig Ali and El-Gabrowny. Rahman, 837 F.Supp. at 72. The Kunstler firm and its clients then refused to make the choice and the firm was disqualified from representing Rahman, who then refused to select appointed counsel or retain counsel, opting instead to represent himself with the assistance of a panel attorney who nonetheless has acted occasionally as Rahman's representative, including at conferences relating to legal issues when Rahman has declined to appear. (E.g., 8/4/94 Tr. 1); see Fed.R.Crim.P. 43(c)(3).
In addition to the above representations, the Kunstler firm has represented the former wife of the government's informant, Emad Salem. (7/11/94 Gov't Mem. at 18) *272 Further, on May 2, 1994 when the government executed a search warrant at the home of Nabil Elmasry, who has performed translation and paralegal services for Rahman, Kuby contacted the court claiming to represent him and demanded that the search be halted. Finally, Kunstler and Kuby sought to represent at sentence the four defendants convicted in the World Trade Center bombing case, United States v. Salameh, 93 Cr. 180, and were disqualified on grounds of conflict of interest because those defendants had plain reason at least to consider cooperation with the government, possibly providing information that could help incriminate clients the Kunstler firm was representing or had represented. A mandamus petition to the Second Circuit to permit, such representation was denied from the bench.[3]
B. The Kunstier Firm's Other Conduct
1. The Siddig Ali Interviews
In addition to simply representing defendants and others associated with the case who may have conflicting interests, Kunstler and Kuby have participated in conduct that may become the subject of proof at trial. On July 11, 1993 Kunstler appeared on television with his then-client, Siddig Ali, in an interview in which the latter denied participating in any bombing conspiracy. (McCarthy Aff. ¶ 7a) Thereafter, Siddig Ali gave another interview denying any bombing conspiracy. (Id. ¶ 7b) The government has said that Siddig Ali stated during the proffer sessions (i) he made the denials during the television interview on Kunstler's advice to pursue a strategy of blanket denial, (ii) he did the same in other interviews after being advised to do so by Kuby as part of a campaign to influence public opinion, and (iii) the denials were false. (Id.)[4]
2. El-Gabrowny's Possession of the Nosair Passports
The Kunstler firm has submitted to this court and to the Court of Appeals inconsistent explanations for El-Gabrowny's possession at the time of his arrest of forged Nicaraguan passports carrying the photographs of Nosair and his family but bearing assumed names. In March 1993 the Kunstler firm stated in a brief to the Court of Appeals that the passports were intended to be used by Nosair following his release from prison in order to escape anticipated retribution from Jewish organizations (3/29/93 El-Gabrowny Br. at 16), notwithstanding that the passports bear an expiration date before Nosair's *273 scheduled release. In January 1994 the Kunstler firm told this court that the passports were obtained by Nosair before he was convicted, in anticipation of his having to flee from Zionist retribution after his anticipated acquittal, notwithstanding that they bear an issuance date after he was imprisoned. (1/5/94 Ltr. at 3-4) In July 1993 Kunstler suggested to this court, in an affirmation submitted under penalty of perjury, that he had a basis to prove that the passports in question had been given to El-Gabrowny by Emad Salem, a government informant, as part of a plan to help Nosair escape from Attica Correctional Facility, a plan El-Gabrowny allegedly had rejected. (7/14/93 Kunstler Aff. ¶ 3) The government argues that these statements constitute admissible evidence because they were made by agents of El-Gabrowny (7/28/94 Gov't. Mem. at 42), presumably on the government's direct case. See Fed.R.Evid. 801(d)(2). However, without passing on whether such statements would be admissible on the government's direct case, it is at least possible they would be referred to should El-Gabrowny testify.
3. The Nosair Defense Fund Allegedly Administered by El-Gabrowny
Finally, the government has stated that it will prove El-Gabrowny administered a fund, raised through contributions solicited from the public, which was supposed to have been used to defray expenses incurred to defend Nosair in the state case but which was actually used in part to further the seditious activities charged in Count One. (7/28/94 Gov't Mem. at 33-38 & Ex. A at 8) The government has proffered evidence based on records seized during a search of El-Gabrowny's apartment that about $290,000 was raised for the fund. The government has proffered evidence also that the Kunstler firm and its former client Nosair at various times has made statements suggesting the amount available for legal fees was far less. Thus, although the fund allegedly was established in December 1990, Nosair was quoted as having told a state court judge in May 1991 that he was uncertain as to the existence of the fund and that he was unable to pay legal fees at a time when the balance in the fund allegedly exceeded $100,000. (7/28/94 Gov't Mem. at 34 (citing People v. Nosair, 6/25/91 Tr. 23 (referring to May 1991 proceedings))) Kunstler was quoted by that state court judge as having told the court that there were no funds, that if money was raised it was for bail and since no bail had been set the money had been returned. (Id. at 35 (citing People v. Nosair, 6/25/91 Tr. at 14-20))
The government has stated it will show that Nosair was recorded at Attica in "late 1992" complaining about how the fund was being administered and that the Kunstler firm among others was trying to take the funds. (7/28/94 Gov't Mem. at 37) Nonetheless, Kunstler is said to have affirmed in aid of Nosair's petition for leave to appeal in forma pauperis that he and his firm had received a fee of $25,000 in installments, that the defense fund was depleted and that at least part of it had been used to pay for the support of Nosair's family, while Nosair's wife allegedly complained to Nosair that she lacked funds. (Id. at 37-38) Most recently, Kunstler has been quoted as denying any awareness at all of a Nosair defense fund. "I know nothing of any Nosair defense fund. All I know is that I was paid in dribs and drabs." Ronald Sullivan, "U.S. Moves to Exclude 2 Lawyers," The New York Times, July 7, 1994 at B4 (cited in 7/28/94 Gov't Mem. at 38).
4. Other Conduct by the Kunstler Firm
In an ex parte submission that has been placed under seal, the government has proffered additional conduct by the Kunstler firm that could be the subject of testimony at trial. It is unclear at present whether the government would try to prove such conduct even if it could, and also whether such conduct could be proved only if Siddig Ali testified, or could be independently proved (7/29/94 McCarthy Aff. (received ex parte and sealed) ¶¶ 11-15), as the government acknowledged in an ex parte proceeding. Because it is highly speculative that any of this evidence may be presented at trial, this portion of the government's ex parte submission has not been considered in deciding this motion. See supra p. 270 n. 2.
*274 III.
The above facts generate legal problems that fall into two broad categories: the conflict-of-interest problems and the lawyer-as-unsworn-witness problems.
A. Conflict of Interest
As was pointed out the last time there was occasion to consider the Kunstler firm's multiple representation, a defendant's Sixth Amendment right to counsel protects him against ineffective assistance of counsel, and in particular against prejudice, demonstrated or presumed, resulting from his counsel's conflicts of interest, actual or potential. Rahman, 837 F.Supp. at 69, and cases cited therein. "An attorney has an actual, as opposed to a potential, conflict of interest when, during the course of the representation, the attorney's and defendant's interests `diverge with respect to a material factual or legal issue or to a course of action.'" Winkler v. Keane, 7 F.3d 304, 307 (2d Cir.1993) (quoting Cuyler v. Sullivan, 446 U.S. 335, 356 n. 3, 100 S.Ct. 1708, 1722 n. 3, 64 L.Ed.2d 333 (1980)), cert. denied, ___ U.S. ___, 114 S.Ct. 1407, 128 L.Ed.2d 79 (1994).
The divergence of interest that signals an actual conflict may arise from two sources: (i) the lawyer's personal interest, such as when the lawyer may risk incriminating himself or incurring the hostility of a prosecutor he knows to be investigating him by pursuing a strategy that could help his client; or (ii) from the lawyer's professional interest, resulting from his obligation to protect the interest of another present or former client when the interest of that other client diverges from the interest of the client in question. Levy, 25 F.3d at 155-57. It bears emphasis that Levy reiterated a lawyer's obligation to protect former clients as well as current ones, thereby validating Judge Weinfeld's observation more than 40 years ago:
A lawyer's duty of absolute loyalty to his client's interests does not end with his retainer. He is enjoined for all time, except as he may be released by law, from disclosing matters revealed to him by reason of the confidential relationship. Related to this principle is the rule that where any substantial relationship can be shown between the subject matter of a former representation and that of a subsequent adverse representation, the latter will be prohibited.
T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F.Supp. 265, 268 (S.D.N.Y.1953).
Further, in a case in which there are myriad conflicts, each cannot be considered in isolation, but rather must be considered together when assessing whether there is a congruence of interests between the lawyer and his client. Levy, 25 F.3d at 157.
The court's obligation when even the possibility of a conflict of interest appears is to inquire into the interests of the lawyer so as to identify "whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all." Levy, 25 F.3d at 153.
If the court discovers that the attorney suffers from a severe conflictsuch that no rational defendant would knowingly and intelligently desire the conflicted lawyer's representationthe court is obliged to disqualify the attorney[.] If the court discovers that the attorney suffers from a lesser or only a potential conflictsuch that a rational defendant could knowingly and intelligently desire the conflicted lawyer's representationthe court should follow the procedure set out in Curcio, 680 F.2d at 888-90, in order to obtain directly from a defendant a valid waiver of his right to a non-conflicted lawyer[.]
Id. (citations omitted).
In deciding whether to accept or reject a defendant's waiver of one or more conflicts of interest, a court must "recognize a presumption in favor of [defendant's] counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict." Wheat v. United States, 486 U.S. 153, 164, 108 S.Ct. 1692, 1700, 100 L.Ed.2d 140 (1988). However, the Court recognized in Wheat the context in which that decision is made, and prescribed a notably flexible standard:
Unfortunately for all concerned, a district court must pass on the issue whether or not to allow a waiver of a conflict of interest *275 by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly. The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials. It is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before trial of what each of the Government's witnesses will say on the stand. A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics. Nor is it amiss to observe that the willingness of an attorney to obtain such waivers from his clients may bear an inverse relation to the care with which he conveys all the necessary information to them.
For these reasons, we think the district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.
Wheat, 486 U.S. at 162-63, 108 S.Ct. at 1699. Thus, as in Wheat and as in United States ex rel. Stewart v. Kelly, 870 F.2d 854, 857-58 (2d Cir.1989), a waiver of conflict is not binding on the court if the conflict is nonetheless actually or potentially substantial.[5] The authority of Wheat makes clear that that part of the Levy test which involves an assessment of how serious the conflict is, must include not only actual but also potential conflicts, and must include as well both a prudent awareness of how little can be predicted with certainty before a trial begins and a sober regard for how much can go wrong once a trial starts.
B. Lawyer as Unsworn Witness
"[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat, 486 U.S. at 159, 108 S.Ct. at 1697. Among the limitations on the right to select a particular lawyer, other than those resulting from that lawyer's conflicts of interest or simple unavailability within a reasonable time, see United States v. Locascio, 6 F.3d 924, 931 (2d Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1645, 128 L.Ed.2d 365 (1994), are limitations that may be imposed because "[f]ederal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Wheat, 486 U.S. at 160, 108 S.Ct. at 1698.
The ethical standards a court has an independent responsibility to preserve include a rule that may require a lawyer to withdraw from representing a client when that lawyer is in a position to be a witness. See, e.g., N.Y.Jud.Law DR 5-102(A) (McKinney 1993).
Even if the attorney is not called, however, he can still be disqualified, since his performance as an advocate can be impaired by his relationship to the events in question. For example, the attorney may be constrained from making certain arguments on behalf of his client because of his own involvement, or may be tempted to minimize his own conduct at the expense of his client. Moreover, his role as advocate may give his client an unfair advantage, because the attorney can subtly impart to the *276 jury his first-hand knowledge of the events without having to swear an oath or be subject to cross-examination.
Locascio, 6 F.3d at 933. Indeed, proof at trial about a lawyer's conduct may be such that his very presence at counsel table would itself distort the factfinding process by implying to the jury the court's endorsement or condonation of that conduct. United States v. Castellano, 610 F.Supp. 1151, 1167 (S.D.N.Y.1985), cited with approval in Locascio, 6 F.3d at 933.
IV.
A. Conflicts in Resuming Representation of Siddig Ali
Although Siddig Ali most recently decided he did not wish to resume being represented by the Kunstler firm, any possible recurrence of that issue should be laid to rest for good and all. If Kunstler and Kuby were to represent Siddig Ali, one substantial matter on which they would have to consult with and advise him would be whether or not to testify. As the above facts make clear, their advice to him would come burdened with the knowledge that he could be cross-examined about statements Siddig Ali made to the government dealing with not only El-Gabrowny, a current client of the firm, but also with Rahman and Nosair, past clients of the firm who are defendants in this case, and possibly with Sattar and Haggag, also past clients of the firm. It would come burdened also with the knowledge that Siddig Ali could be cross-examined about statements he made with respect to Kunstler and Kuby themselves. That in itself would warrant disqualification, regardless of any waiver.
Beyond that, many of the tape recordings in the case include Siddig Ali's voice. Counsel to El-Gabrowny might well wish to make arguments distancing his client from Siddig Ali, arguments that would be highly prejudicial to Siddig Ali's interest, in violation of their ongoing duty of loyalty to him. Levy, 25 F.3d at 156.
Further, the Kunstler firm, despite that duty, has (i) publicly accused its former client of lying, (ii) submitted to the court a letter stating that Siddig Ali admitted during a telephone call to Kuby that he lied to the government in his evidentiary proffers (8/16/94 Kunstler and Kuby Ltr. (2 pages) at 1), thereby accusing Siddig Ali of felonies as yet uncharged, see 18 U.S.C. §§ 1001 (false statements), 1505 (obstruction), and (iii) urged the court, before Siddig Ali's apparent experiment with cooperation came to an end, to compel their former client to waive his attorney client privilege as the price of entering a guilty plea, a suggestion that itself violated Rule 11(e)(1) of the Federal Rules of Criminal Procedure, which bars the court from participating in plea negotiations. (6/28/94 Tr. at 34-35) To return Siddig Ali's fate to such custodians would violate the court's independent duty to assure that Siddig Ali "receive[s] a trial that is fair and does not contravene the Sixth Amendment." Wheat, 486 U.S. at 161, 108 S.Ct. at 1698.
B. Conflicts in Representing El-Gabrowny
Four former clients of the Kunstler firm are defendants in this case: Rahman, Nosair, Siddig Ali, and Haggag. It may be advisable for a lawyer representing El-Gabrowny's interest to make arguments distancing El-Gabrowny from one or all of those defendants, or to adduce evidence helpful to El-Gabrowny but harmful to one or all of those defendants, measures which, if taken by the Kunstler firm, would violate that firm's duty to its former clients and, if not taken, would give rise to arguments by El-Gabrowny on appeal that his lawyer's performance had been adversely affected by a conflict of interest and his conviction therefore should be reversed. See Levy, 25 F.3d at 156-58.
The Nosair defense fund is a minefield of potential conflict. Nosair, a former Kunstler firm client, was the intended beneficiary of the fund, but the government has proffered evidence to suggest a substantial part of the proceeds were not spent to benefit him or his family. El-Gabrowny, who administered the fund, is alleged to have made some of its proceeds available for illegal activity. His interest is in proving that as much as possible of the fund was used to pay for Nosair's defense in the state case. Kunstler, one of Nosair's lawyers in the state case, has already *277 taken the position that the firm received only a small amount in fees, and has cast doubt on whether any of it came from the fund. He is already committed to a view of the facts that disserves El-Gabrowny's and possibly Nosair's interests. See supra p. 273.
Although Siddig Ali will not testify as a government witness at trial, it is entirely possible that he will testify in his own defense. If he does, either he would incriminate El-Gabrowny or he would be subject to cross-examination by the government based on statements to the government in which he did. Further, although the court previously discounted the likelihood that Nosair would testify because he had not done so at his state trial, Rahman, 837 F.Supp. at 71,[6] Nosair has filed a sealed submission relating to a proposed defense that could require his testimony. Rahman, who is alleged to have approved the seditious acts of others rather than to have acted directly himself, may well testify.
The Kunstler firm would be barred ethically from cross-examining any of those defendants, and from cross-examining any other of its former clients, such as Sattar, Elmasry and Haggag, if they were to testify. Wheat, 486 U.S. at 164, 108 S.Ct. at 1699. Either El-Gabrowny would have to forgo any cross-examination of any of those witnesses, or the court would have to maintain standby counsel to cross-examine former Kunstler firm clients.
Although the Kunstler firm and El-Gabrowny embraced the standby counsel alternative at the August 23 hearing, going so far as to suggest, incorrectly, that it was the court's proposal in November 1993 for dealing with conflicts of interest, see supra p. 269, that alternative provides no assured solution to the problem. Even if substitute counsel could cross-examine former clients of the Kunstler firm, there is no assurance that information potentially damaging to one of those clients would not appear during the examination of other witnesses. The court and counsel would have to remain constantly alert to detect such potential damage. When it was detected, the Kunstler firm would have to abandon cross-examination relating to such information, and let standby counsel take over. The same problem would afflict openings and summations, with the Kunstler firm barred ethically from making any argument or previewing any proof that could adversely affect any of its former clients at risk in this case. Thus, cross-examination for El-Gabrowny's benefit, and indeed his entire representation, would be conducted in the manner of a fugue, with the Kunstler firm developing only themes that could not damage its former clients, and standby counsel developing the themes that could. Even if such a bizarre scenario were workable and it is not any miscalculation of the potential effect of any argument or item of evidence would enable El-Gabrowny to argue on appeal that his representation had been adversely affected by a conflict of interest.
Beyond suggesting that any potential conflict of interest problems can be cured through the standby counsel device, the Kunstler firm has argued principally, in both its submissions to the court[7] and its public pronouncements,[8] that the entire conflict of interest *278 issue is a contrivance conjured by the government as an excuse to get rid of them. Two other defendants, Victor Alvarez and Amir Abdelgani, have chimed in with the assertion that the government lacks standing to raise the conflict of interest issue, an argument the Kunstler firm has rescued from its own deficiencies of standing by adopting it.
Addressing the second argument first, not only does the government not lack standing to raise this argument, as noted above, see supra p. 267, it is required under Levy and its precursors to call these matters to the court's attention, as the court was required to pursue them, with reversal likely for failure of either the government or the court to follow prescribed procedures. Levy, 25 F.3d at 152; see also Iorizzo, 786 F.2d at 59.
As to the claim that the issue is a government contrivance to get rid of the Kunstler firm,[9] the miasma of conflicting interests described above is entirely of the Kunstler firm's own creation. Even if one were to assume that the firm did nothing to encourage multiple representation, an assumption that founders on the firm's performance in the Salameh case, where it sought to represent the defendants convicted in the World Trade Center bombing, see supra pp. 271-272, no one forced the firm to assume multiple representation.
In Wheat, varying degrees of culpability among three jointly represented clients and the need for vigorous cross-examination of one loomed as obstacles to competent representation, and disqualification was upheld. In Stewart, defense counsel previously had represented the informant in an unrelated matter, and offered to limit cross-examination to the informant's criminal record. 870 F.2d at 855. Nonetheless, the compromise was found "not acceptable professional conduct," and disqualification was upheld even though the prior representation was in connection with another matter. Id. at 857. In this case, the prior representation was in connection with related matters. The conflicts of interest posed by the Kunstler firm's continued representation of El-Gabrowny are at least as dire as those that justified disqualification of counsel in Wheat and Stewart, particularly when considered not separately, but together, as Levy says they must be. Levy, 25 F.3d at 157. Just as important, the conflicts here, by their sheer number if nothing else, are at least comparable to the ones that necessitated reversal in Levy, where counsel earlier had represented A co-defendant who had fled, and counsel himself was suspected of complicity in that flight and in other criminal activity. Based on these actual and potential conflicts of interest, El-Gabrowny's waiver cannot be accepted and the Kunstler firm must be disqualified.
C. Kunstler and Kuby as Unsworn Witnesses
The status of Kunstler and Kuby as potential unsworn witnesses, to the extent it can be discerned now, emerges from (i) Kunstler's joint television appearance with Siddig Ali, and the latter's subsequent statement to the government that this appearance and other interviews included false statements as part of a strategy Kunstler and Kuby recommended, see supra p. 272; (ii) their statements to this court and to the Court of Appeals about how El-Gabrowny came to possess the forged passports, see supra pp. 272-273; and (iii) their statements about how much they received of the funds raised for Nosair's defense, combined with the government's proffer of illicit uses to which those funds were put. See supra pp. 273-274.
The first of these items of proof becomes a problem only if Siddig Ali testifies. If he does not, there may be no occasion for Kunstler and Kuby to "subtly impart to the jury *279 [their] first-hand knowledge of the events without having to swear an oath or be subject to cross-examination." Locascio, 6 F.3d at 933. However, the possibility of his testimony exists regardless of his status in the case, and that possibility must be considered. The Kunstler firm has brushed aside issues arising from their involvement in Siddig Ali's public statements with a tu quoque argument, as follows: If defense counsel may be disqualified because they have potential unsworn testimony on the subject of how their former client came to make prior inconsistent statements, government counsel also must be disqualified because they are potential witnesses on the prior inconsistent statements of the witnesses they call. That argument rests on two assumptions, neither of which is valid: first, that there is particular reason to believe that a witness will testify that a government lawyer told him to lie there isn't; second, that the relationship between a lawyer and a client is the same for disqualification purposes as the relationship between a lawyer and a non-client witness it isn't.
The other two items of proof that present the Kunstler firm as potential unsworn witnesses statements about the forged passports and evidence relating to the Nosair defense fund inhere in any continued representation of El-Gabrowny, in whose behalf counsel made statements about the passports and who is alleged to have been the administrator of the Nosair defense fund. They are imminent whether Siddig Ali testifies or not.
It is arguable that these unsworn witness problems are not as substantial as those presented in Locascio, where the proof would have suggested the disqualified attorney was house counsel to the RICO enterprise charged in the indictment. 6 F.3d at 933. However, they are nonetheless substantial, even without considering the government's suggestion that the Kunstler firm's activities in representing those whom the government contacted, and otherwise, may be read to show house counsel status. (7/28/94 Gov't Mem. at 30 n. *)
The firm's response to the unsworn witness problems, other than as set forth above, has been the same as its response to the conflict of interest problems, and may be responded to in much the same way: first, the government was obligated to raise the issue; second, even if one were to take the kindest view of how the firm came to be enmeshed in facts that will be proved at trial, and one were to assume that such involvement arose from a perceived need to correct a hostile public view of blameless clients, no one forced these lawyers to test-fly their defense theories in public and in court documents, and to say and do things that could be proved against their client at trial.
It is not necessary to consider whether these unsworn witness problems, standing alone, would be enough to warrant disqualification. They do not stand alone, and may not be considered alone. Rather, they should be considered together with the conflict of interest problems discussed above, cf. Levy, 25 F.3d at 157 (conflicts of interest should be considered together, not individually), and bearing in mind that this decision must be made before the trial together also with a realistic projection, if one is possible, of how sensitive the Kunstler firm is likely to be in avoiding future conflicts of interest and future entanglement in the underlying facts. That projection is not reassuring. As disclosed by the record summarized above, the Kunstler firm from the outset has either denied the existence of the problems discussed above, or trivialized them, objecting to the initial Curcio hearing in this case, Rahman, 837 F.Supp. at 66, and proffering without basis a blanket waiver on El-Gabrowny's behalf as recently as August 18. See supra p. 270.
The Kunstler firm's involvement in possible relevant proof at trial and its record of dealing with these issues in this case simply add weight to the conclusion that the motion to disqualify the firm must be granted.
The government's motion is granted. The Kunstler firm is disqualified from representing either Siddig Ali or El-Gabrowny at trial.
SO ORDERED.
NOTES
[1] That opinion was written on the last occasion I had to consider problems posed by the Kunstler firm's multiple representation in this case. The text counsel and their client apparently referred to, which has nothing to do with conflict of interest but deals only with preserving the attorney client privilege, reads as follows:
The government has suggested further that standby counsel be appointed to conduct cross-examination of any former client of the Kunstler firm who takes the stand at trial, so as to minimize the risk that client's privileged communications to the Kunstler firm will influence the cross-examination. That will be done.
United States v. Rahman, 837 F.Supp. 64, 71 (S.D.N.Y.1993).
[2] A portion of the government's submission relating to Siddig Ali's statements inculpating other defendants has been received ex parte and under seal. (7/29/94 McCarthy Aff. (received ex parte and sealed) ¶¶ 4-10) Although ex parte submissions may be resorted to when necessary to protect, among other things, against disclosure of information relating to ongoing investigations and information that could harm the national interest, see In re John Doe Corp., 675 F.2d 482, 489-90 (2d Cir.1982), and although the information in the government's submission fits those categories, it has not been used to decide this motion. The portion that deals with statements that potentially inculpate other defendants relate in part to subjects already disclosed. To the extent the ex parte submission goes beyond those subjects, it is not necessary to decide this motion.
[3] Kunstler and Kuby had earlier claimed in press interviews that they had evidence the government's informant, Emad Salem, was responsible for the World Trade Center explosion. See, e.g., Patricia Cohen, "Defense: Spy was Bomber," Newsday, Dec. 15, 1993 at 7. Although, as mentioned, they later sought to represent the World Trade Center defendants, the lawyer for one of the defendants in that case, Mahmoud Abouhalima, complained to the court that Kunstler and Kuby had never shared the alleged evidence with counsel during the trial, and concluded that Kunstler and Kuby were seeking to represent the World Trade Center defendants "for [their] own exclusive photo opportunity." (3/31/94 Abdellah Ltr. at 1)
[4] This calls to mind what occurred in open court on July 30, 1993, at a hearing pursuant to Curcio, to determine whether Siddig Ali and El-Gabrowny were aware of their right to be represented by conflict-free counsela hearing held over the protest of the Kunstler firm that no hearing was necessary. Siddig Ali and El-Gabrowny met with Kunstler and Kuby in a jury room adjoining the courtroom, and Siddig Ali then
gave what sounded like a rehearsed answer only marginally responsive to a question posed by the court:
THE COURT: Understanding what I just explained, and after having consulted both with Mr. Kunstler and Mr. Kuby, and with Ms. Scolari [CJA counsel appointed to consult with Siddig Ali, also over the protest of the Kunstler firm], do you want to continue in this case to be represented by Mr. Kunstler and Mr. Kuby? DEFENDANT SIDDIG ALI: Your Honor, I would like you to know that I conceive fully that I will be represented by Mr. Kuby and Mr. Kunstler and that will never put me in any conflict with my codefendant or any other co-defendants, [b]ecause I believe that my co-defendant and myself are innocent people. My conflict is not with my co-defendant or with anybody else, but it is with the government, with the FBI, and with those people who are accusing me of doing things or saying things that I have not conspired or done.
Rahman, 837 F.Supp. at 66 (quoting 7/30/93 Tr. 16). Rahman, when he was represented by the Kunstler firm, would repeat at his own Curcio hearing the same formulaic insistence that claimed innocence overcame any potential for conflict. Id. at 67, 68 (quoting 10/15/93 Tr. 8, 9).
[5] To the extent the court's earlier opinion in this case dealing with the government's motion to limit the Kunstler firm's representation of defendants suggests that only actual conflicts may give rise to a constitutional defect in representation, Rahman, 837 F.Supp. at 70, that suggestion is incorrect. Even a potential conflict that ripens into prejudice to a defendant causes a violation of the Sixth Amendment. Levy, 25 F.3d at 152.
[6] The same opinion suggested that it was unlikely Siddig Ali would cooperate or that if he testified he would incriminate El-Gabrowny. 837 F.Supp. at 71. "The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials." Wheat, 486 U.S. at 162-63, 108 S.Ct. at 1699. Ruefully, amen.
[7] The firm's initial brief on this motion opened as follows: "Once again, an increasingly desperate government turns to attacking defense counsel as a part of a strategy to obtain convictions, no matter what the cost to the Constitution. In the government's view, the only acceptable role for defense attorneys is to grease the machinery of justice by convincing clients that their ticket to freedom is to become a taxpayer-supported perjurer. Consequently, the prosecution views aggressive and zealous advocacy as a form of obstruction."
[8] "Mr. Kuby called the [current] motion `simply an attempt to get radical lawyers out of the case.'" Ronald Sullivan, "U.S. Moves to Exclude 2 Lawyers," The New York Times, July 7, 1994 at B4 col. 4.
"Kunstler and Kuby told reporters after the [Curcio] hearing [when the firm undertook to represent Rahman] that the government's argument for disqualification had no merit and was just part of an effort to `get rid of us.'
"`They are trying to limit this to lawyers who are not of our stripe,' Kunstler said." Gail Appleson, "Sheik Insists He Has Nothing To Do With Bombing," Reuters, Oct. 15, 1993 (available on Lexis).
[9] Whether the accomplishments and stature of the Kunstler firm, as described herein and otherwise, are such that the government would wish to have them replaced with less formidable counsel, is an issue that need not be reached in order to resolve the current motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261680/ | 861 F.Supp. 914 (1994)
Pietro PARRAVANO, Wayne Heikkila, Marguerite Dodgin, Earl Carpenter, David Bitts, Liz Henry, Norman L. de Vall, Pacific Coast Federation of Fishermens' Associations, Humboldt Fishermens' Marketing Association, Caito Fisheries, Inc., Golden Gate Fishermens' Association, and Salmon Trollers Marketing Association, Plaintiffs,
v.
Bruce BABBITT, as Secretary of the United States Department of the Interior, and in his individual capacity; Ron Brown, as Secretary of the United States Department of Commerce, and in his individual capacity, Defendants.
No. C 93-2003 TEH.
United States District Court, N.D. California.
July 29, 1994.
*915 *916 *917 James M. Johnson, Olympia, WA, Mary L. Hudson, Gorman & Waltner, Oakland, CA, for plaintiffs.
James C. Kilbourne, Jean E. Williams, U.S. Dept. of Justice, Environment and Natural Resource Div., Washington, DC, for defendants.
Barbara E. Karshmer, George Forman, Patricia A. Prochaska, John R. Shordike, Alexander & Karshmer, Berkeley, CA, for intervenor.
ORDER
THELTON E. HENDERSON, Chief Judge.
This matter came before the Court on April 25, 1994 on defendants' Motion to Strike or to File a Supplemental Opposition to Amicus Memoranda, plaintiffs' Motion for Partial Summary Judgment, plaintiffs' Motion to Strike Extraneous Matters, and defendants' Motion to Dismiss. After careful consideration of the parties' oral and written arguments and the record herein, the Court grants defendants' motions to file a supplemental opposition and to dismiss, and denies plaintiffs' motions to strike and for partial summary judgment.
FACTUAL BACKGROUND:
The focal point of this action is the popular Klamath River fall chinook salmon. These anadromous fish spawn in the Klamath River and its upper tributaries, migrate downstream to the ocean, and then return to their fresh water origins at age three or four to spawn and then die. An unfortunate combination of overfishing, prolonged drought, and habitat degradation have led to significantly depressed levels of Klamath chinook stock, to the detriment of commercial fishing interests, sport fishermen, and the Native American tribes who rely on these fish for subsistence and ceremonial needs. See, United States v. Eberhardt, 789 F.2d 1354, 1363 (9th Cir.1986) (conc. opin.) (overfishing has depleted the stocks of Klamath River fish). The conflicts inherent in having a chinook population too small to satisfy the needs of all who have a stake in the Klamath salmon are what underlie this case.
Plaintiffs are commercial fishermen and commercial fishing associations[1] who contend that the Secretary of Commerce ("Secretary Brown") improperly reduced the Klamath chinook ocean harvest rate for the 1993 fall fishing season. They contend that Secretary Brown's actions violate the Magnuson Fishery Conservation and Management Act ("Magnuson Act"), 16 U.S.C. § 1801 et seq., the Administrative Procedures Act ("APA"), 5 U.S.C. § 551 et seq., 42 U.S.C. § 1981 and the United States Constitution, the Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552b, the Klamath River Basin Act, PL 99-552, and the Trinity Basin Act, PL 98-541.
In a motion filed on July 16, 1993, plaintiffs sought partial summary judgment on plaintiffs' claims that defendants had violated procedural and substantive requirements of the Magnuson Act (plaintiffs' first cause of action) and that defendants' actions in setting the 1993 season were also in violation of the APA (plaintiffs' second cause of action). Defendants cross-moved for a partial summary judgment affirming their actions in setting *918 the 1993 season. In a preliminary order issued on August 12, 1993, and a detailed order issued on November 3, 1993, 837 F.Supp. 1034, the Court granted summary judgment to defendants except with regard to defendants' decision to increase the spawning escapement floor for Klamath River salmon by 3,000 fish.[2] The Court also granted summary judgment to defendants on plaintiffs' second motion for partial summary judgment, concerning plaintiffs' FOIA claim (plaintiffs' fifth cause of action).
Plaintiffs now seek a partial summary judgment on plaintiffs' remaining claims brought under the Magnuson Act. Plaintiffs seek a summary judgment that there is no federal law reserving fishing rights to the Hoopa Valley and Yurok Indians which must be considered applicable law by Secretary Brown in regulating ocean fisheries under the Magnuson Act, since ocean harvesting by plaintiffs may only be restricted to protect Indian fishing rights established by treaties.[3] Intervenor Sue Masten joined in defendants' opposition to plaintiffs' motion for partial summary judgment on this basis. Plaintiffs also submit in support of their motion for summary judgment the argument that Magnuson Act procedures and National Standards have been violated by defendants' "agreement" to "regulate all ocean seasons in accordance with the Interior Solicitor's opinion." On March 8 and March 14, 1994, respectively, the Humboldt Bay Harbor, Recreation and Conservation District of the State of California, and the State of California, filed briefs as amicus curiae in support of plaintiffs' motion for summary judgment.[4]
Defendants cross-move to dismiss (1) plaintiffs' allegation that the Secretary of the Interior ("Secretary Babbitt") violated constitutional equal protection and due process guarantees as well as 42 U.S.C. § 1981 in setting the 1993 Indian harvest allocation because such allocation was racially based and discriminatory, and (2) plaintiffs' allegation that Secretary Babbitt violated certain acts relating to the restoration of the Klamath and Trinity Rivers. Plaintiffs move to strike several documents that defendants filed with their motion to dismiss. We first address plaintiffs' motion for summary judgment, below.
LEGAL STANDARD:
Defendants' Motion to Dismiss
Dismissal is appropriate under Rule 12(b)(6) when a plaintiff's complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The Court must accept as true the factual allegations of the complaint and indulge all reasonable inferences to be drawn from them, construing the complaint in the light most favorable to the plaintiff. Dodd v. Spokane County, 393 F.2d 330, 334 (9th Cir.1968); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Unless the Court converts the Rule 12(b)(6) motion into a summary judgment motion, the court may not consider material outside of the complaint. Powe v. Chicago, 664 F.2d 639, 642 (7th Cir.1981). The Court must construe the complaint liberally, and dismissal should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Wright *919 and Miller, supra, § 1350; Intake Water Co. v. Yellowstone River Compact Com., 769 F.2d 568, 569 (9th Cir.1985).
Plaintiffs' Motion for Summary Judgment
Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir.1985); Fed. R.Civ.P. 56. Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The court may not weigh the evidence, and is required to view the evidence in the light most favorable to the nonmoving party. Id.
DISCUSSION:
I. PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
1). Background.
The areas that are the Yurok and Hoopa Valley Reservations today were originally set aside in the nineteenth century. The Act of March 3, 1853, authorized the President to "make ... reservations ... in the State of California ... for Indian purposes." 10 Stat. 226, 238. In 1855, by executive order and under authority of the Act of March 3, 1853, President Pierce established the Klamath River Reservation along the lower 20 miles of the Klamath River. I.C. Kappler, Indian Affairs: Laws and Treaties 816 (1904) ("Kappler"). The lands were mostly occupied by Yurok Indians, and the reservation encompassed what is today the lower portion of the Yurok Reservation. According to the Supreme Court in Mattz v. Arnett, 412 U.S. 481, 486, 93 S.Ct. 2245, 2248, 37 L.Ed.2d 92 (1973), the site was ideally selected for the Yuroks. They had lived in the area; the arable land, although limited, was "peculiarly adapted to the growth of vegetables," 1856 Report 238, and the river, which ran through a canyon its entire length, abounded in salmon and other fish. Kappler at 817.
The original Hoopa Valley Reservation, a 12 mile square on either side of the Trinity River, was first located and proclaimed in 1864, by the Superintendent of Indian Affairs for California, pursuant to legislation enacted that year. The legislation authorized the President to set apart up to four tracts of land in California "for the purposes of Indian reservations, which shall be of suitable extent for the accommodation of the Indians of said state, and shall be located as remote from white settlements as may be found practicable, having due regard to their adaptation to the purposes for which they are intended." Act of April 8, 1864, § 2, 13 Stat. 39, 40 ("1864 Act"); see also Kappler at 815; Donnelly v. United States, 228 U.S. 243, 255-57, 33 S.Ct. 449, 452-53, 57 L.Ed. 820, modified on other grounds and rehearing denied, 228 U.S. 708, 33 S.Ct. 1024, 57 L.Ed. 1035 (1913); Mattz v. Superior Court, 46 Cal.3d 355, 250 Cal.Rptr. 278, 282, 758 P.2d 606, 610 (1988). The reservation was mostly inhabited by Hoopa Indians. In 1876 President Grant formally set aside the reservation by Executive Order "for Indian purposes, as one of the Indian reservations authorized ... by Act of Congress approved April 8, 1864." Kappler, at 815.
In 1891, President Harrison issued an Executive Order extending the Hoopa Valley Reservation along the Klamath River from the mouth of the Trinity River to the Pacific Ocean, thereby encompassing and including the Hoopa Valley Reservation, the original Klamath River Reservation, and the connecting strip in between. See Mattz v. Arnett, 412 U.S. at 492-493, 93 S.Ct. at 2251-52.
In 1988 Congress enacted the Hoopa-Yurok Settlement Act of 1988 ("HYSA"), 25 U.S.C. § 1300i-1300i-11. The HYSA partitioned the extended Hoopa Valley Reservation into the present Hoopa Valley Reservation and the Yurok Reservation. The congressional partition "recognized and established" two distinct reservations for the Yurok and Hoopa Valley Tribes ("the Tribes"), and declared that "[t]he unallotted trust land and assets" of each reservation would thereafter be held in trust by the United States *920 for the benefit of the Hoopa Valley and Yurok Tribes, respectively. 25 U.S.C. § 1300i-1(b) & (c). The legislative history accompanying the HYSA indicates that tribal fishing rights constituted one such recognized asset:
The legislation will also establish and confirm the property interests of the Yurok Tribe in the Extension, including its interest in the fishery, enabling the Tribe to organize and assume governing authority in the Extension.
See Partitioning Certain Reservation Lands Between the Hoopa Valley Tribe and the Yurok Indians, S.Rep. No. 564, 100th Cong., 2d Sess. 2-9 (1988) and Partitioning Certain Reservation Lands Between the Hoopa Valley Tribe and the Yurok Indians, H.Rep. No. 938, pt. 1, 100th Cong., 2d Sess. 8-15 (1988).
The Tribes have historically been dependent on salmon fishery of the Klamath River. One estimate is that prior to settlement along the coast by non-Indians, the Indians in the Klamath River drainage "consumed in excess of 2 million pounds ... of salmon annually from runs estimated to have exceeded 500,000 fish." U.S. Department of the Interior, Environmental Impact Statement Indian Fishing Regulations 2 (Hoopa Valley Reservation, California (April 1985)). As the Court noted in Blake v. Arnett, 663 F.2d 906, 909 (9th Cir.1981), the fishery was "not much less necessary to the existence of the Indians than the atmosphere they breathed." See also Mattz v. Arnett, 412 U.S. at 487, 93 S.Ct. at 2249.
At the time the Hoopa Valley and Klamath River Reservations were created, the United States was well aware of the Indians' dependence upon the fishery. A specific, primary purpose for establishing the reservations was to secure to the Indians the access and right to fish without interference from others. See Mattz v. Arnett, 412 U.S. at 487-88, 93 S.Ct. at 2249 (Klamath River Reservation ideal for the Indians because of the river's abundance of salmon and other fish); Donnelly v. United States, 228 U.S. at 259, 33 S.Ct. at 453; United States v. Eberhardt, 789 F.2d at 1360 (citing People v. McCovey, 36 Cal.3d 517, 534, 205 Cal.Rptr. 643, 653, 685 P.2d 687, 697 (1984), cert. denied California v. McCovey, 469 U.S. 1062, 105 S.Ct. 544, 83 L.Ed.2d 432 (1984)); United States v. Wilson, 611 F.Supp. 813, 817-818 and n. 5 (N.D.Cal.1985) (Hoopa Valley Reservation Indian fishing rights were granted by Congress when it authorized President to create reservations for Indian purposes). Mattz v. Superior Court, 46 Cal.3d 355, 250 Cal.Rptr. 278, 290, 758 P.2d 606, 618 (river and Indian fishing played a primary role in the 1891 extension of the Hoopa Valley Reservation to include the old Klamath Reservation and connecting strip).
The power of the United States to reserve fishing rights for Indians and Indian tribes is derived from its plenary power over Indian affairs, grounded in the Indian Commerce Clause and the Interstate Commerce Clause. U.S. Const. Art. I Sec. 8; see Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 764, 105 S.Ct. 2399, 2402, 85 L.Ed.2d 753 (1985) ("Constitution vests the Federal Government with exclusive authority over relations with Indian tribes.").
The Indians' reliance on fishing continues to this day. As the court noted in United States v. Wilson,
To modern Indians of the Hoopa Valley Reservation, fishing remains a way of life, not only consistent with traditional Indian customs, but also as an eminently practical means of survival in an area which lacks the broad industrial or commercial base which is required to provide its population, Indian or otherwise, with predictable, full-time employment and income adequate to provide sufficient quantities and qualities of the necessities of life.
611 F.Supp. at 818 n. 5 (citations omitted).
On October 4, 1993, the Solicitor of the Department of the Interior issued an Opinion concluding that the fishing rights reserved when the reservations were created entitle the Tribes to a share of fishery resources sufficient to support their moderate living needs, but no more than 50% of the harvestable share, unless varied by agreement of the parties. Subsequently, on December 23, 1993, the Secretary of Commerce published an interpretative rule, which states that the Secretary recognizes that the Federally reserved *921 fishing rights of the Yurok and Hoopa Valley Tribes, as construed in the Solicitor's Opinion, are applicable law for the purposes of the Magnuson Act. 58 Fed.Reg. 68063 (December 23, 1993). The Federal Register notice states that all future fishery management measures for the ocean salmon fisheries off Washington, Oregon and California must provide for harvest allocations as provided for in the Solicitor's Opinion:
The [fishery management plan (FMP)] specifies that, to the maximum extent possible, optimum yield will be set at a level that fulfills the requirements of the Indian fishery for salmon on the Klamath River and that the Council must take the effects of in-river harvest on spawner escapement into account while setting ocean harvest levels.... The Solicitor's Opinion now provides a clear legal framework for allocating the salmon harvest between the Tribes and various other in-river and ocean commercial and recreational fishermen.... The Secretary will only approve ocean salmon management measures recommended by the Council that provide for tribal harvest opportunity consistent with the rights recognized in the Solicitor's Opinion and meet the spawning escapement goal for Klamath River fall chinook salmon.
58 Fed.Reg. 68063.
The rule amends the Appendix to 50 CFR Part 661, which is the framework amendment for annual management measures by including therein direction to consider as applicable law the construction of the rights provided in the Solicitor's Opinion. This amendment applied to the 1994 management measures developed by the Pacific Fishery Management Council. On January 3, 1994, the Assistant Secretary, Indian Affairs, formally instructed the Sacramento Area Director, Bureau of Indian Affairs, to implement the Solicitor's Opinion in regulating the on-reservation tribal fishery beginning in 1994.
2). Applicable Law
Standard of Review
Plaintiffs challenge Commerce's action in applying, as "applicable law" under the Magnuson Act, the construction of law set forth in the Solicitor's Opinion. Enacted in 1976, the Magnuson Act was intended to respond to overfishing and inadequate conservation measures which were threatening future commercial and recreational fishing, as well as the very survival of species. 16 U.S.C. § 1801(a); Lovgren v. Byrne, 787 F.2d 857, 861 (3rd Cir.1986) (Magnuson Act "was enacted at a time when overfishing of coastal waters was commonplace, threatening the existence of a number of species of fish"); Pacific Coast Federation of Fisherman's Assoc. v. Secretary of Commerce, 494 F.Supp. 626 at 635, n. 7 (N.D.Cal.1980) ("over-fishing of species was a primary impetus to passage of the Act").
The Act provides for the establishment of regional Councils which are charged with developing, after public comment, a recommended fishery management plan ("FMP") for regulating fishing in the EEZ. 16 U.S.C. § 1852. The Councils also recommend seasonal adjustments and amendments to the FMP. Id. The Council's recommendations are submitted to the Secretary of Commerce who reviews them for consistency with seven "National Standards" set forth in the Act and "other applicable law." Based on this review, the Secretary may either approve or disapprove the Council's recommendations. 16 U.S.C. § 1854; Eberhardt, 789 F.2d 1354 at 1363 (Councils "recommend" ocean fishing regulations to the Department of Commerce).
An action taken by the Secretary of Commerce under the Magnuson Act is subject to limited judicial review, 16 U.S.C. § 1855(b), and may only be invalidated if the challenged action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1982). We review legal questions under a de novo standard. We also note that the Department of the Interior has been given authority under 25 U.S.C. §§ 2 and 9 to manage and conserve Indian resources, and we must assume that the Department has been given reasonable power to effectively discharge its broad responsibilities for the management of Indian affairs. United States v. Eberhardt, 789 F.2d at 1354; Udall v. Littell, 366 F.2d 668, 672 (D.C.Cir.1966).
*922 3). Discussion
Fishing Rights of the Tribes
Plaintiffs first move for partial summary judgment that there is no federal law reserving fishing rights to the Hoopa Valley and Yurok Indians which must be considered applicable law by the Secretary of Commerce in regulating ocean fisheries, since ocean harvesting by plaintiffs may only be restricted pursuant to treaty-based Indian fishing rights. Plaintiffs essentially make three different arguments: (1) that the Hoopa Valley and Yurok Tribes have no federally reserved fishing rights; (2) that fishing rights secured by executive or statutory authority do not command the same authority as rights secured by treaty; and (3) that there can be no off-reservation regulation pursuant to an on-reservation fishing right. The Court will address these arguments in turn.
(i) Federally Reserved Fishing Rights
Plaintiffs first argue that the Hoopa Valley and Yurok Indians have no fishing rights because the establishment of their reservations did not "create any fishing rights at all." However, while the Hoopa Valley and Yurok Indians do not have any treaty based fishing rights, courts have consistently recognized that the federal government reserved Indian fishing rights when it established what are the Hoopa Valley and Yurok Reservations of today.
The Ninth Circuit held in United States v. Eberhardt that the Yurok and Hoopa Valley Indians have reserved fishing rights:
The right to take fish from the Klamath River was reserved to the Indians when the reservation was created.... [T]he right reserved includes fishing for ceremonial, subsistence and commercial purposes.
789 F.2d at 1359.
In People v. McCovey, the Supreme Court of California held that "[Indian fishing] rights were granted by Congress when it authorized the President to create the reservation for Indian purposes." 205 Cal.Rptr. at 653, 685 P.2d at 697. Further, the Northern District of California has previously confirmed the Yurok and Hoopa Valley Indians' right to fish:
It cannot be doubted that the Indians have a right to fish on the reservation. Congress has carefully preserved this right over the years, and he Courts have consistently enforced it. The Supreme Court has held that the creation of a reservation "for Indian purposes" encompasses the right to hunt and fish on that reservation. [citing Menominee Tribe of Indians v. U.S., 391 U.S. 404, 405, 88 S.Ct. 1705, 1707, 20 L.Ed.2d 697 (1968)].
Pacific Coast Federation of Fishermen's Asso. v. Secretary of Commerce, 494 F.Supp. 626, 632 (N.D.Cal.1980). See also, Mattz v. Superior Court, 46 Cal.3d 355, 250 Cal.Rptr. 278, 758 P.2d 606 (1988) (right to take fish from the Klamath River was reserved for the Indians when the reservation was created); Arnett v. Five Gill Nets, 48 Cal.App.3d 454, 121 Cal.Rptr. 906 (1975); cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757 (1976) (same); Donahue v. California Justice Court, 15 Cal.App.3d 557, 93 Cal.Rptr. 310 (1971) (same).[5]
Plaintiffs also contend that, even if there are fishing rights, they were not vested "in any particular tribe" when the reservations were set aside in the 19th century. While this is true, this was altered by the HYSA, which specifically vested fishing rights in the Yurok and Hoopa Valley Tribe in 1988. Pursuant to this law, the Yurok and Hoopa Valley Tribes have a federally reserved fishing right which includes fishing for ceremonial, subsistence and commercial *923 purposes. See discussion of HYSA, above.[6] Thus, the Hoopa Valley and Yurok Indians clearly have a federally reserved fishing right.
(ii) Treaty Versus Non-Treaty Rights
Plaintiffs' second argument is that only tribes with treaty rights should be accorded the power to regulate fishing off-reservation. This contention lacks merit. The federal power to reserve rights for Indians in conjunction with the creation of reservations may be exercised either through treaties, statutes, or executive actions pursuant to statutory authority. Court decisions upholding or recognizing the reserved fishing rights at issue have uniformly rejected a treaty versus non-treaty distinction. The Ninth Circuit addressed this very issue in Blake v. Arnett:
Congress can create a reservation, reserve rights to the Indians, and dispose of the lands of the United States by statute as well as by treaty ...
* * * * * *
We do not think that the distinction between a treaty and a statute has great significance.
* * * * * *
[B]oth treaties and statutes are the supreme law of the land. Const. Art. VI. cl. 2.... [W]e believe that whether the source of a right is in a treaty or in a statute has little contemporary relevance.
663 F.2d at 909-910 (citation omitted). See also United States v. Wilson, 611 F.Supp. at 818 ("It makes little practical difference that Congress granted these rights by statute rather than by treaty"); Arnett v. Five Gill Nets, 48 Cal.App.3d at 459, 121 Cal.Rptr. at 911 ("No reason appears why the manner in which the right was granted would make it more or less worthy of protection"); McCovey, 205 Cal.Rptr. at 652-53, 685 P.2d at 696-97.[7]See also Arizona v. California, 373 U.S. 546 at 598, 83 S.Ct. 1468, 1496, 10 L.Ed.2d 542 (1963) ("We can give but short shrift ... to the argument that the reservations either of land or water are invalid because they were originally set apart by the Executive") (water rights); United States v. Walker River Irrigation District, 104 F.2d 334, 336 (9th Cir.1939) ("We see no reason to believe that the intention to reserve need by evidenced by treaty or agreement. A statute or an executive order setting apart the reservation may be equally indicative of the intent.") (water rights).
(iii) On-Reservation Versus Off-Reservation Rights
Plaintiffs next argument concerns the scope of any fishing rights that the Tribes may possess. Plaintiffs contend that the Tribes' only right is an on-reservation right of access to the Klamath River and an on-reservation immunity from state regulation of fishing and that the Department of Commerce cannot regulate catch outside of the reservation to protect fish for the Tribes on reservation. However, plaintiffs do not provide any authority for their contention that the Tribes' fishing right is limited in this way.
*924 As anadromous fish, Klamath River chinook do not live out their existence on the reservation. They spawn in the upper reaches of the Basin, migrate as juveniles to the ocean where they reach adult and harvestable size, and return to the river of their origin to spawn. Only when they return to the reservation are the fish of any value to the Tribes. A federally reserved fishing right is a right to an opportunity to obtain possession of a portion of the resource, which can best be expressed by either the numbers of fish taken or an allocation of the harvestable resource. See United States v. Washington, 520 F.2d 676, 687 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976); Puget Sound Gillnetters Ass'n v. U.S. Dist. Ct., 573 F.2d 1123, 1129 n. 6 (9th Cir.1978), affirmed in part and vacated in part, Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). Thus, for the Tribes' federally reserved fishing right to have any practical meaning, it must include regulation of activities occurring outside the reservation which negatively impact that right.
While the off-reservation regulation of fishery pursuant to non-treaty based tribal fishing rights appears to be a matter of first impression, it is clear that courts have upheld off-reservation regulation of fishery pursuant to treaty based fishing rights.[8] For example, courts have held that fishing activities outside of tribal fishing areas of the Pacific Northwest Tribes must be regulated to permit a sufficient return of the fishery resource to tribal fishing areas so that these tribes may have a meaningful opportunity to harvest their share of the resource. See, e.g., Hoh Indian Tribe v. Baldrige, 522 F.Supp. 683, 687 (W.D.Wash.1981) (the State cannot so manage the fishery that little or no harvestable portion of the fish reaches the Indian fishing areas; the Magnuson Act clearly places a responsibility on the United States to police ocean fishery by Washington citizens insofar as is necessary to assure compliance with the treaties); U.S. v. Washington, 459 F.Supp. 1020, 1070 (W.D.Wash.1978) (same); Sohappy v. Smith, 302 F.Supp. 899, 911 (D.C.Or.1969) (same). That the fishing rights in these cases arose through treaty rather than through statutory and executive authority does not affect the scope of the fishing right, as explained above.[9]
Further authority for the proposition that a reserved right can affect off-reservation rights in order to satisfy the tribal on-reservation right comes from the context of water rights cases. In Winters v. United States, 207 U.S. 564, 576, 28 S.Ct. 207, 211, 52 L.Ed. 340 (1908), the Court found an implied off-reservation restriction of water because it was necessary to fulfill the needs of on-reservation use and because the land of the reservation would have been valueless without water. See also Arizona v. California, 373 U.S. 546, 599, 83 S.Ct. 1468, 1497, 10 L.Ed.2d 542 (1963) (implied restriction found off-reservation where water essential to "life of the Indian people"); Colville Confederated Tribes v. Walton, 647 F.2d 42, 47 (9th Cir. 1981) (Congress has the power to reserve off-reservation water for use on-reservation because "Congress intended to deal fairly with the Indians by reserving waters without which their lands would be useless.")
The fishery here, no less than the water in the water rights cases, has been deemed "essential to the life of the Indian people" for *925 whom the reservation was created. Arizona, 373 U.S. at 599, 83 S.Ct. at 1497. Further, here, as with the Pacific Northwest treaty tribes, the Government has "recognized the vital importance of the fisheries to the Indians and wanted to protect them from the risk that non-Indian settlers might seek to monopolize their fisheries." Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 666, 99 S.Ct. 3055, 3064, 61 L.Ed.2d 823 (1979). The Court is also mindful that "[t]he United States, acting through the Secretary of the Interior, has charged itself with moral obligations of the highest responsibility and trust [towards reservation Indians]." Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F.Supp. 252, 256-257 (D.D.C.1972). Thus, it appears entirely appropriate to the Court that this responsibility include the Department of Commerce's regulation of the ocean harvest of Klamath River salmon in order to provide the appropriate measure of the fishing rights of the Hoopa Valley and Yurok Tribes.
(iv). Magnuson Act Procedures and National Standards
Plaintiffs also argue in support of their motion for partial summary judgment that Magnuson Act procedures and National Standards have been violated by the "agreement" between the Secretaries of Commerce and the Interior to "regulate all ocean seasons in accordance with the Interior Solicitor's Opinion." While plaintiffs make this argument in their opening brief, they drop it in their reply, leading the Court to conclude that they accept defendants' correction of their interpretation of the Magnuson Act and its National Standards. Further, plaintiffs' argument appears directed at challenging defendants' decision to allocate a 1993 harvest of 18,500 fall chinook salmon for in-river Indian fishery. The Court specifically stated it would not adjudicate the validity of any allocation on this motion in its order of February 1, 1994. Nonetheless, the Court addresses plaintiffs' allegations here insofar as it is desirable to lend clarity to the record.
Plaintiffs first allege that Commerce's management of the ocean fishery so as to accommodate Interior's allocation to the Tribes constituted an improper delegation of power from the Department of Commerce to the Interior, because the "Secretary of the Interior, (and his Solicitor) has no statutory role in the establishment of fishery management plans under the FCMA." This contention of plaintiffs is grounded in a misunderstanding of the Magnuson Act.
The Magnuson Act, and its National Standards, 16 U.S.C., § 1801 et seq., apply to regulation of ocean harvesting in the Exclusive Economic Zone the area from 3-200 miles seaward and not to in-river fisheries. See Pacific Coast Fed. v. Secretary of Commerce, 494 F.Supp. 626, 631-633 (N.D.Cal. 1980) (rejecting plaintiffs' claim that the Council and the Secretary of Commerce should regulate in-river fisheries, and holding that the Secretary of Commerce had no jurisdiction over the "inland fisheries.") See also the Court's November 2, 1993 Order at 14: "the rivers running through the reservations are under the jurisdiction of the Department of the Interior."
Nonetheless, the Secretary of Commerce must manage the ocean fishery in a manner consistent "with any other applicable law," 16 U.S.C. § 1854(a)(1)(B) which, as we stated in our November 3, 1993 Order, we construe as including United States obligations to Indian reservations with respect to fishing rights. This is also acknowledged in the Fishery Management Plan ("FMP") for the affected area, which requires that any optimum yield for the ocean fishery must take into account the Indian fishery on the Klamath River. Therefore, the Secretary of Commerce's action in setting the 1993 allocation simply followed the Solicitor's Opinion defining the applicable law. This was not an improper delegation of power of Commerce to the Interior, as plaintiffs suggest.
Plaintiffs also contend that Defendants' actions are in violation of "applicable procedural requirements" of the Magnuson Act, and for support refer to their first motion for summary judgment under the Magnuson Act. The procedural claims plaintiffs raised in their first motion were already ruled upon by this Court in our previous orders and plaintiffs cannot seek to review them here.
*926 In sum, plaintiffs fail to show that they are entitled to judgment as a matter of law that an allocation of fish from ocean fisheries to the Hoopa Valley and Yurok Tribes, as "nontreaty tribes," is unlawful. Accordingly, the Court dismisses plaintiffs' remaining claims under the Magnuson Act (plaintiffs' first cause of action), and denies plaintiffs' motion for partial summary judgment.
II. PLAINTIFFS' MOTION TO STRIKE
Plaintiffs move to strike three of defendants' exhibits appended to defendants' motion to dismiss, on the basis that these exhibits are "outside the pleadings." However, these exhibits were not submitted by defendants to prove factual matters outside the averments of the Amended Complaint. The Exhibits plaintiffs seek to strike are Bureau of Indian Affairs Public Notices and a BIA Federal Register Notice, all of which were issued pursuant to 25 CFR 250.12(a). Exhibit 2 is a notice in the nature of an interpretative rule, defining the eligibility criteria for Indian fishing on the Yurok and Hoopa Valley reservations, to bring these criteria into conformity with the Hoopa-Yurok Settlement Act (HYSA), 25 U.S.C. § 1300i et seq.[10] Exhibits 3 and 4 are notices setting the 1993 harvest allocation for the Indian in-river fishery.
Thus, these Exhibits constitute either applicable law, or adjudicative facts subject to judicial notice pursuant to F.R.E. 201, since they are outside of reasonable controversy. As a result, the Court denies plaintiffs' motion to strike defendants' exhibits.
III. DEFENDANTS' MOTION TO DISMISS
Defendants first move to dismiss the claims which form the balance of plaintiffs' second, third, and fourth causes of action, which allege Secretary Babbitt's 1993 in-river fishery allocation for the Hoopa Valley and Yurok Tribes are discriminatory and violate due process. These causes of action involve 1) claims of Fifth Amendment and equal protection 42 U.S.C. § 1981 violations, and 2) claims of Fifth Amendment due process violations. Defendants also move to dismiss the claims which constitute plaintiffs' sixth cause of action, which alleges that Secretary Babbitt has violated the Klamath and Trinity River Acts. The Court will address these claims in turn.
1). Equal Protection and 42 U.S.C. § 1981 Claims
Plaintiffs charge that the Secretary's authorization of a harvest of 18,500 fall chinook for the 1993 season was racially discriminatory, and violated the equal protection clause and 42 U.S.C. § 1981.[11] In order to succeed on either cause of action, plaintiffs must be able to allege racial discrimination as an element of their claim. General Building Contractors Ass'n v. Pennsylvania, 458 *927 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982) ("[42 U.S.C.] 1981, like the Equal Protection Clause, can be violated only by purposeful discrimination.") However, plaintiffs fail to allege any cognizable claim of racial discrimination.
Plaintiffs allege that the allocations are racially based and discriminatory because "none of the tribes of said Indians have any treaty with the United States and some "Indians" are not tribal members." However, regulations regarding Indians are not considered "racial," regardless of whether the Indians in question are affiliated with treaty tribes.
Indians enjoy a "unique legal status," Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), which derives from the Constitution through the "Indian Commerce Clause," Article I, Sec. 8, cl. 3, which provides Congress with the power to "regulate Commerce ... with the Indian Tribes," through Article II, Sec. 2, cl. 2, the treaty-making power, and from the special relationship between the Federal government and Indians. Id. at 552, 94 S.Ct. at 2483.
Literally every piece of legislation dealing with Indian tribes and reservations ... single out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized. Id. at 552, 94 S.Ct. at 2483-84.
In Mancari, the Court explained that a Bureau of Indian Affairs Indian employment preference was not "racial" because it was granted to Indians "not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities." Id. at 554, 94 S.Ct. at 2484.[12] The Court further held that "[a]s long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians," the regulation will not be disturbed. Id. at 555, 94 S.Ct. at 2485.
The Supreme Court revisited the question whether regulation of Indian affairs was racially based in United States v. Antelope, 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977). Addressing a challenge that a federal criminal statute applied to Indians was racially discriminatory, the Court held that:
[S]uch regulation is rooted in the unique status of Indians as "a separate people" with their own political institutions. Federal regulation of Indian tribes, therefore, is governance of once-sovereign political communities; it is not to be viewed as legislation of a "`racial' group consisting of `Indian'.... Morton v. Mancari, supra, 417 U.S. at 553 n. 24, 94 S.Ct. at 2484 n. 24.
The regulation in this case restricts on-reservation fall chinook tribal harvest based on the existence of federally-recognized Tribes and their respective reservations, and not on any "racial" classification. All Indians who are authorized by the Secretary to fish on the Hoopa Valley or Yurok reservations in 1993 had to be members of either Hoopa Valley or Yurok Tribes.[13] Thus, under the rule of Mancari, the regulation is not racially based, but is based on the political status of the Tribes.
Plaintiffs argue that because these Tribes are not parties to treaties with the United States, the allocation is racially based. However, courts have applied the rule set forth in Mancari in both treaty and non-treaty situations. See Alaska Chapter, Assoc. Gen'l Contractors of America, Inc., 694 F.2d at 1168-1170 (applying the rule of Mancari to contract award preference for Indian-owned *928 businesses in Alaska, where the treaty power does not apply, and under a statutory definition of "Indian" which involved classification based on blood quantum and recognition by a tribal or governmental entity); Barona Group of Capitan Grande Band of Mission Indians v. American Mgmt. and Amusement, 824 F.2d 710, 722-723 (9th Cir.1987) (Mancari rule applied in case involving 25 U.S.C. 81, which applies to all tribes).
Plaintiffs do not cite a single case to support their claim that the fishery allocation presents a cognizable § 1981 or equal protection claim. Plaintiffs' entire opposition to defendants' motion on the issue of racial classification consists of their motion to strike, which the Court denies. Since it appears beyond doubt that plaintiffs can prove no set of facts in support of their equal protection and § 1981 claims which would entitle them to relief, these claims are dismissed.
2). Due Process Claims
Plaintiffs' due process argument is that they have a right of access to "federal ocean fisheries" under the Magnuson Act and that they were deprived of this right without notice or a hearing before issuance of defendants' 1993 harvest regulations.[14] As this Court has previously noted, the Magnuson Act was enacted in response to the overfishing of ocean stock which was threatening commercial and recreational fisheries, as well as the very survival of some species. 16 U.S.C. 1801(a). To accomplish the goals of the Magnuson Act, Congress established an "exclusive economic zone," ("EEZ"), within which the Department of Commerce would exercise jurisdiction. 16 U.S.C. 1811(a).
Thus, the Magnuson Act confers on the Secretary of Commerce authority to manage the fishery resources in the EEZ for conservation. It does not confer on commercial fishermen any right or title in the fishery resources under the Department of Commerce's authority. Plaintiffs do not point to any language in the Magnuson Act showing Congressional intent that the fishing privileges that may be afforded under the Act to ocean users of the fishery resource vests in them a property right protected by the Fifth Amendment.
Further, plaintiffs can have no property right in the migratory fish themselves. See Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284, 97 S.Ct. 1740, 1751, 52 L.Ed.2d 304 (1977) ("it is pure fantasy to talk of `owning' wild fish, birds, or animals.") In addition, plaintiffs have no right to fish which implicates property interests, nor do they have any legitimate claim of entitlement. While they may have an expectation of participation, "a unilateral expectation" of a benefit is insufficient to establish a property interest. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).
Plaintiffs' entire written argument in opposition to defendants' motion to dismiss their due process claim consists of their motion to strike and one footnote asserting that Vietnamese Fishermen Ass'n of America, et al. v. California Department of Fish & Game, et al., 816 F.Supp. 1468 (N.D.Cal.1993) recognizes that fishermen have a property right to fish. However, as plaintiffs conceded at oral argument, that proposition is nowhere stated in that case. Again, since it appears beyond doubt that plaintiffs can prove no set of facts in support of their due process claim which would entitle them to relief, these claims are dismissed. Thus, the Court dismisses plaintiffs' second, third, and fourth causes of action.
3). Restoration of the Klamath and Trinity Rivers Claims
The second category of claims defendants seek to dismiss are those involving alleged violations of two statutes which provide for restoration of the Klamath and Trinity Rivers. (plaintiffs' sixth cause of action). Plaintiffs assert in this regard that Defendant *929 Babbitt has failed to comply with his restoration responsibilities and has failed to regulate in-river fishing to protect the fishery.
A). Standing
First, defendants move to dismiss these claims because plaintiffs lack standing, since they have not alleged that they have suffered or will suffer a concrete injury. Article III of the Constitution limits the judicial power of federal district courts to "cases and controversies."
It is not enough that a litigant claims that a violation of federal law has occurred; the litigant must have "standing" to invoke the power of a federal court.
Fernandez v. Brock, 840 F.2d 622, 625 (9th Cir.1988). To establish standing under Article III, a plaintiff must allege three elements. First, the plaintiff must have suffered an "injury in fact" an invasion of a legally protected interest which is (a) concrete and particularized, Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975), and (b) "actual or imminent, not `conjectural' or `hypothetical,'" Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1723, 109 L.Ed.2d 135 (1990). Second, there must be a causal connection between the injury and the conduct complained of the injury has to be "fairly ... trace[able] to the challenged action of some third party not before the court." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976). Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Lujan v. Defenders of Wildlife, ___ U.S. ___, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
The party invoking federal jurisdiction bears the burden of establishing these elements. Id. At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we "presum[e] that general allegations embrace those specific facts that are necessary to support the claim," Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990).
Given the low threshold plaintiffs must pass to survive a motion to dismiss, plaintiffs' allegations satisfy the first requirement to show standing. In the complaint, plaintiffs allege the following: that they have been "severely impacted" by "defendants' actions"; that defendants Babbitt and the Department of the Interior are charged with restoring and maintaining fish runs in the Klamath; that the status of the Klamath River runs is the direct result of the failure and refusal by Secretary Babbitt to improve and protect the habitat and restore runs by stocking fish; and that defendants have failed and refused to protect Klamath River runs.
These pleadings suffice to allege injury, since the Court understands the complaint to allege that plaintiffs have suffered decreased fishing opportunity as a result of defendants' inaction, although this is not explicit in the complaint.[15] Further, because on a motion to dismiss we "presum[e] that general allegations embrace those specific facts that are necessary to support the claim," Lujan v. National Wildlife Federation, 497 U.S. at 889, 110 S.Ct. at 3189, the Court finds that plaintiffs successfully plead that their decreased fishing opportunity is caused by the conditions which the Acts seek to address, and that the relief they seek an order directing defendants to implement measures to improve Klamath River runs will likely redress their injury. Thus, the Court denies defendants' motion to dismiss plaintiffs' claims on the ground that plaintiffs do not successfully allege standing.
*930 B). Judicial Review
Although the Court finds that plaintiffs successfully allege standing, plaintiffs do not successfully allege a basis for judicial review. Neither the Klamath Basin Act nor the Trinity Basin Act (the "Acts") contain provisions granting a private right of action. Plaintiffs seek judicial review pursuant to the Administrative Procedure Act ("APA"), or, in the alternative, assert there to be an implied private right of action in the Acts.
i). Judicial Review Under the APA.
Plaintiffs have generally alleged jurisdiction under the APA, 5 U.S.C. § 551 et seq. When jurisdiction is alleged pursuant to the APA, a plaintiff can claim a right to judicial review under § 10(a) of the APA, which provides:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
5 U.S.C. § 702. This provision contains two separate requirements. First, the person claiming a right to sue must identify some "agency action" that affects her in the specified fashion. Lujan v. National Wildlife Federation, 497 U.S. 871, 881-82, 110 S.Ct. 3177, 3185, 111 L.Ed.2d 695 (1990). Second, the party must show she has suffered legal wrong, or has been adversely affected or aggrieved by that action. Id.
Plaintiffs' complaint refers to no specific action or inaction that violates the Acts, but only generally states that Secretary Babbitt has failed to implement measures to improve Klamath River Runs, including habitat improvement and fish planting measures. Plaintiffs do not attempt to meet the test laid out in Lujan. Rather, according to plaintiffs, because they allege general agency inaction, review is available under 5 U.S.C. § 706(1) which authorizes a district court to "compel agency action unlawfully withheld or unreasonably delayed" (emphasis added).
However, the claims plaintiffs present here do not match what is required to invoke 5 U.S.C. § 706(1). Courts which have reviewed claims of delay pursuant to this provision have done so in the context of specific allegations of inaction, usually in the context of delayed administrative review of a plaintiff's claim before an agency, or of delayed agency rulemaking. See Telecommunications Research & Action v. F.C.C., 750 F.2d 70 (D.C.Cir.1984), Public Citizen Health Research Group v. Comm'r Food and Drug Admin., 740 F.2d 21 (D.C.Cir.1984). Plaintiffs do not point to any authority to support their position that 5 U.S.C. § 706(1) can be utilized to review the kind of claim of agency inaction here made by plaintiffs.
ii). Implied Private Right of Action.
Plaintiffs alternatively contend that the Acts contain an implicit private right of action. Whether the Acts confer a private right of action is determined by the four-part test announced by the Supreme Court in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975): (i) the plaintiff must belong to the class for whose especial benefit the statute was created; (ii) the legislature must have shown an intent, either explicitly or implicitly, to create a private remedy; (iii) finding an implied cause of action must be consistent with the underlying purposes of the statute; and (iv) the cause of action must not be one that has traditionally been left to state law. An evaluation of the other elements is not necessary if the Court finds that Congress did not intend to create a private cause of action. See California v. Sierra Club, 451 U.S. 287, 298, 101 S.Ct. 1775, 1781, 68 L.Ed.2d 101 (1981); Stupy v. Postal Service, 951 F.2d 1079, 1081 (9th Cir. 1991).
There is no indication that Congress intended the Acts to provide a basis for a private right of action. The search for legislative intent begins with an examination of the language of the statute and then proceeds to a review of the legislative history and the application of traditional aids to statutory interpretation. See Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981).
An examination of the language of the Acts indicates no intent to provide for a private cause of action. Rather, the text of the Acts provides that task forces to formulate management programs and to coordinate management *931 activities among federal, state and local agencies are to be established. Trinity Basin Act, 98 Stat. at 2721, 2722-23 and Klamath Basin Act, 16 U.S.C. § 460ss-1 to -3. The Klamath Basin Act explicitly mandates membership of the Task Force to include representatives of the commercial salmon fishing industry, the in-river sport fishing community, the Department of the Interior, and the Hoopa Valley and Yurok Tribes, indicating that Congress intended the members of these various groups to communicate and resolve disputes through direction of the Task Force. 16 U.S.C. § 460ss-3(c)(1)(A).
Nor does the legislative history indicate any congressional intent to create a private cause of action. Plaintiffs point to legislative history discussing the seriousness of the degradation of the Klamath and Trinity Rivers and the frustration with past federal inaction felt by many who testified at the hearings on the proposed Acts. However, these facts do not suffice to show legislative intent to create a private remedy. Thus, plaintiffs successfully allege neither an implied private right of action nor a basis for judicial review pursuant to the APA.
Lastly, plaintiffs suggested in their written briefs that the Court should stay consideration of defendants' motion to dismiss pending intervention of either the Yurok or Hoopa Valley Tribes. Plaintiffs in fact assert that the parties have stipulated to such an intervention. However, defendants state that no such stipulation has been agreed to, and indeed, no such stipulation has been filed with the Court. Therefore, the Court declines to stay consideration of defendants' motion for this reason. Plaintiffs' sixth cause of action is therefore dismissed.[16]
CONCLUSION:
For the foregoing reasons, defendants' motion to file a supplemental opposition is granted, and plaintiffs' motion for a partial summary judgment is denied. Plaintiffs' motion to strike is denied, and defendants' motion to dismiss plaintiffs' remaining claims is granted. Further, as there are no remaining causes of action in the complaint, the action is dismissed in its entirety.
IT IS SO ORDERED.
NOTES
[1] In addition to seven individual plaintiffs, there are five organizational plaintiffs: Pacific Coast Federation of Fishermen's Associations, Humboldt Fishermen's Marketing Association, Caito Fisheries, Inc., Golden Gate Fishermen's Association, and the Salmon Trollers Marketing Association.
[2] In the August 12, 1994 Order, the Court remanded the issue of the increase of the spawning escapement floor to the Secretary of Commerce so he could supplement the Administrative Record. On August 19, 1993, defendants made a submission to this Court in accordance with this Order. Now, eight months later, plaintiffs state that they intend to submit "comments" on the issue. At this point, the issues regarding whether the Secretary of Commerce properly increased minimum spawning escapement in 1993 are moot. Therefore, the Court declines to give plaintiffs an extension of time to respond.
[3] In the Court's February 1, 1994 Order, we stated that "the only issue the Court will consider, in connection with plaintiffs' Motion for Partial Summary Judgment, is whether the Klamath River tribes possess federally reserved rights, such that ocean harvesting may be curtailed by the government to protect such rights under the Magnuson Act. The Court will not address, or allow adjudication of, any issue concerning the allocation, amount, or extent of, such rights with respect to any Tribe or plaintiff."
[4] Defendants move to strike or to file a supplemental opposition to the amicus briefs, because the briefs were filed after defendants filed their opposition to plaintiffs' motion for summary judgment. At oral argument, the Court granted defendants' motion to submit an opposition to the amicus briefs.
[5] Plaintiffs ignore these cases except Eberhardt, which they characterize as upholding an Interior regulation prohibiting Indian fishing for commercial purposes because the fishing rights involved were not treaty rights. However, Eberhardt does not concern the issue of treaty rights. Rather, the issue before the court in Eberhardt was whether the Secretary of the Interior had any authority, absent evidence of the "imminent extinction" of the fishery resource, to ban Indian commercial fishing on-reservation. Eberhardt, 789 F.2d at 1358. The Ninth Circuit held that, even absent such a showing, such regulation "to protect and conserve the fishery resource for the benefit of the Indians," was not an abrogation of what the Court clearly held to be a well-established right to fish. Id. at 1359.
[6] While plaintiffs imply that because this right was not vested before 1988, it may not be enforced by restricting ocean fisheries, Indian property rights which are not vested as against congressional action are still protected and enforceable against third parties such as plaintiffs. See F. Cohen's Handbook of Federal Indian Law, 486-99 (R. Strickland ed. 1982) (tribal rights of occupancy afford the tribe enforceable property right against all but the federal government).
[7] In response to California's petition for Supreme Court review of Arnett v. Five Gill Nets, Solicitor General Bork's brief for the United States noted:
That executive orders played a prominent role in the creation of the Reservation does not change this result [that the United States reserved to the Indians the right to fish on the Reservation without state interference]. Regardless of the manner in which a reservation is created the purpose is generally the same: to create a federally-protected refuge for the tribe....
With respect to fishing rights we see no reason why a reservation validly established by executive order should be treated differently from other reservations.
Memorandum for the United States as Amicus Curiae, at 5, Arnett v. Five Gill Nets, (U.S. No. 75-527), cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757 (1976).
[8] Contrary to plaintiffs' assertions, the fact that fulfilling a reserved tribal right may require regulation of activities outside the areas where the tribal right is enjoyed does not render the right an "off-reservation" right.
[9] The cases plaintiffs cite to support their argument that only fishing rights provided through treaty may affect regulation of fishery off-reservation do not support that proposition. For example, plaintiffs rely upon Wahkiakum Band of Chinook Indians v. Bateman, 655 F.2d 176 (9th Cir.1981), and United States v. Oregon, 787 F.Supp. 1557 (D.Or.1992), for authority. At issue in both cases were tribes seeking to be declared successors in interest to signatories of various treaties, which has no relevance to the instant case. Plaintiffs also cite United States v. Forty-Eight Pounds of Rising Star Tea, 35 F. 403 (D.C.N.D.Cal.1888), aff'd, 38 F. 400 (C.C.N.D. 1889) as authority. This case describes how a reservation was extended to include a fishing cannery so that it would not compete with the reservation fishery, and does not stand for the proposition that Indians with fishing rights through statutory or executive authority can only be helped on-reservation.
[10] Plaintiffs specifically attack Exhibit 2, asserting that there has been "no properly adopted amendment of the C.F.R. in question," presumably meaning that the BIA change in the regulations should have been issued with notice and comment. However, interpretative regulations such as this notice do not require notice and comment proceedings.
Assuming that Exhibit 2 is not "properly adopted," plaintiffs attack the superseded regulation as defining "eligible Indian" to include not only tribal members but other persons, and claim this is racially discriminatory. However, as discussed below, classification on the basis of "Indian" status is neither racially discriminatory nor constitutionally impermissible. Further, federal law permits in limited circumstances recognition of certain Indians who demonstrate a sufficient nexus to Indian tribes. See 25 U.S.C. 479. In some circumstances such criteria that includes racial factors is not considered impermissible. See Alaska Chapter, Associated General Contractors of America v. Pierce, 694 F.2d 1162, 1168 (9th Cir.1982).
[11] The Fourteenth Amendment to the U.S. Constitution provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const.Amend. XIV. The due process clause of the Fifth Amendment imposes on the federal government the limitations that the equal protection clause of the Fourteenth Amendment imposes on the states. Richards v. Secretary of State, Dept. of State, 752 F.2d 1413, 1415 n. 1 (9th Cir.1985).
The Civil Rights Act provides for equal rights under the law, and states that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens ..." 42 U.S.C. § 1981.
[12] In fact, the Court noted that the preference, applying only to members of federally recognized tribes, operated to exclude many people racially classified as Indian. Mancari at 553 n. 24, 94 S.Ct. at 2484 n. 24.
[13] Prior to the 1988 Hoopa-Yurok Settlement Act, 25 U.S.C. 1300i et seq., eligibility to participate in the on-reservation Indian fishery was based on the criteria stated at 25 C.F.R. 250.5. In 1992, in order to conform the eligibility criteria to the Settlement Act, the Bureau of Indian Affairs, (BIA) issued a notice changing the criteria stated at 25 C.F.R. Part 250 to require membership in either the Hoopa Valley or Yurok Tribes. See defendants' Exhibit 2.
[14] The Fifth Amendment to the U.S. Constitution provides that "[n]o person shall ... be deprived of life, liberty or property, without due process of law...." U.S. Const.Amend V. Discrimination that is "so unjustifiable as to be violative of due process," is considered to be within the Fifth Amendment concept of due process. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).
[15] In their written brief, plaintiffs misstate the test that must be met to allege injury in order to show standing. Plaintiffs argue that because they fall within the "zone of interests" Congress intended to protect through the Klamath and Trinity Acts, they are injured parties whose interests these acts are designed to protect. However, plaintiffs are confusing prudential considerations regarding a "zone of interests" with the constitutional Article III requirement of injury. Establishing Article III standing is a precursor to addressing prudential considerations. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970).
[16] Plaintiffs also allege in their complaint that their sixth cause of action should not be dismissed because it is based on Secretary Babbitt's "trust responsibility." There are no specific pleadings whatsoever regarding this violation, and plaintiffs only address this claim in their motion to dismiss by citing to two cases, which do not suffice to clarify how Secretary Babbitt has allegedly violated a "trust responsibility." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261696/ | 861 F.Supp. 653 (1994)
NORTHLAKE MARKETING & SUPPLY, INC., Plaintiff,
v.
GLAVERBEL S.A., et al., Defendants.
No. 92 C 2732.
United States District Court, N.D. Illinois, Eastern Division.
August 4, 1994.
*654 Anthony S. DiVincenzo, Campbell & DiVincenzo, Chicago, IL, for plaintiff.
Jerold I. Schneider of Spencer, Frank & Schneider, Washington, DC, Blake L. Harrop *655 of Sonnenschein, Nath & Rosenthal, Chicago, IL, for defendant.
MEMORANDUM OPINION AND ORDER
SHADUR, Senior District Judge.
After two false starts, Northlake Marketing & Supply, Inc. ("Northlake") has filed its five-count Second Amended Complaint ("SAC") against Glaverbel S.A. ("Glaverbel"), Foseco, Inc. ("Foseco") and Fosbel, Inc. ("Fosbel") (the latter two are collectively termed "Foseco-Fosbel" for convenience).[1] Three counts seek judicial declarations only against Glaverbel and Fosbel as to United States Patent Nos. 4,792,468 ("'468"), 4,920,084 ("'084") and 4,489,022 ("'022"), all owned by Glaverbel and exclusively licensed to Fosbel: Count I requests a ruling that Northlake is not infringing Patents '468 and '084, while Counts II and III allege that all three patents (1) are invalid under 35 U.S.C. §§ 101, 102, 103 and 112 and (2) are unenforceable for having been fraudulently or inequitably obtained. Counts IV and V accuse all three defendants of having obtained and of seeking to enforce those allegedly invalid patents in violation of (1) the Sherman and Clayton Antitrust Acts (15 U.S.C §§ 1, 2 and 15) and (2) the common law of unfair competition.[2]
In earlier litigation Glaverbel and Fosbel had sued Northlake and other parties in the United States District Court for the Northern District of Indiana, asserting two claims of patent infringement. On those claims Magistrate Judge Andrew Rodovich granted summary judgment in Northlake's favor, finding that Glaverbel and Fosbel had failed to meet their burden of establishing a genuine factual issue as to the existence of such infringement. Northlake had also responded with counterclaims asserting both the invalidity of Patent '022 (and another patent not at issue heresee n. 11) and violations of federal antitrust and state unfair competition law. After a bench trial Magistrate Judge Rodovich dismissed those counterclaims on March 31, 1992 on the ground that Northlake had failed to meet its burden of proof.
As a consequence of that last ruling this Court's December 9, 1992 memorandum opinion and order held that this is not the proper forum for Northlake to advance its claims based on Patent '022, so all such claims were stricken from the SAC. This Court's April 7, 1993 memorandum opinion and order summarized the effect of two other rulings that it had made:
In combination, this Court's oral ruling of December 17, 1992 and its brief February 26, 1993 memorandum opinion and order (the "Opinion") held that to the extent that Northlake's current antitrust and unfair competition claims arise out of any alleged conduct up to and including the date of Judge Rodovich's decision, those claims are barred against all three defendants on claim preclusion grounds.
Now before this Court is the Foseco-Fosbel Fed.R.Civ.P. ("Rule") 56 motion for summary judgment on the remaining temporal segment of Northlake's antitrust and unfair competition claimsthat is, any such claims covering the period from April 1, 1992 to the present.[3] For the reasons set forth in this memorandum opinion and order, the Foseco-Fosbel motion is granted, those claims are dismissed with prejudice and Foseco is dismissed as a party to this action.
Summary Judgment Standards
Familiar Rule 56 principles impose on the movant the burden of establishing the lack of *656 a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the recordonly those inferences that are reasonable"in the light most favorable to the nonmovant (Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991) and cases cited there).
But it is not the movant alone that bears a burden under Rule 56. In accordance with the teaching of Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53 and the plain command of Rule 56(c) and (e), a nonmovant plaintiff has the burden of coming forth with evidence in support of its case. Here is how Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir.1994) has framed the issue:
When as in the present case a defendant moves for summary judgment on the ground that the plaintiff lacks evidence of an essential element of his claim, the plaintiff is required by Fed.R.Civ.P. 56, if he wants to ward off the grant of the motion, to present evidence of evidentiary qualityeither admissible documents or attested testimony, such as that found in depositions or in affidavitsdemonstrating the existence of a genuine issue of material fact.
And Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir.1994) has paraphrased Rule 56(e) to convey the same message:
The non-movant may not rely upon mere allegations, but must present specific facts to show that a genuine issue of material fact exists.
Not just any tendered material will suffice to meet that burden. Such proffered material must meet the strictures of the Federal Rules of Evidence so as to be admissible at trial (Winskunas, 23 F.3d at 1267; Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 n. 2 (7th Cir.1994)).[4] Where a non-movant fails to present evidence that satisfies its burden in opposing the movant's Rule 56 motion, the motion must be granted (Waldridge, 24 F.3d at 920-21).
Parties
Northlake is a competitor of Foseco, Fosbel and Glaverbel in the United States market for the ceramic welding and repair of industrial ovens used principally by the steel, glass and copper industries (Foseco's Vice President of Administration Anthony Money ("Money") Dep. 11, 24; Northlake's President James Hamilton ("Hamilton") Aff. ¶¶ 1, 4). Foseco is a wholly-owned Delaware-incorporated great-grandchild subsidiary of Dutch company Foseco Holding BV (Money Dep. 4, 14). Fosbel is an Ohio corporation whose stock is held 51% by Foseco Holding BV and 49% by Glaverbel (Money Dep. 21).[5] Of the nine seats on Fosbel's Board of Directors, Foseco controls five and Glaverbel controls the other four (Money Dep. 23).
Under the joint venture agreement pursuant to which the participants formed Fosbel, Foseco manages Fosbel and supplies it with the powders used in ceramic welding, while Glaverbel supplies technical advice and has made Fosbel the exclusive licensee of its Patents '468 and '084 (Money Dep. 10-11; Fosbel's Director of Business Development Chuck Zvosec Dep. 28, 73; P.Supp.Mem.Ex. C at 2). Fosbel supplies the actual ceramic welding services to industrial customers (Money Dep. 24).
Lack of Evidence Supporting Northlake's Claims
For nearly 30 years (ever since the decision in Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 176-77, 86 S.Ct. 347, 350, 15 L.Ed.2d 247 (1965)) it *657 has been established that a suit for violation of the antitrust laws may be predicated on a defendant's attempted enforcement of a fraudulently procured patent (though since Walker v. FMC the Federal Circuit has supplanted the concept of "fraud on the Patent Office" with a term that has somewhat broader connotations "inequitable conduct" the basis for an antitrust claim remains that of actual fraud in the procurement; see, e.g., FMC Corp. v. Manitowoc Co., 835 F.2d 1411, 1417-18 (Fed.Cir.1987) and cases cited there). Northlake's SAC alleges just such conduct by Foseco and Fosbel, but that is not enough for Rule 56 purposes. In response to Foseco-Fosbel's motion Northlake must present sufficient evidence to support the reasonable inference that Foseco or Fosbel or both acted or attempted to act in such a manner after March 31, 1992. Northlake runs aground on that requirement.
More specifically, Northlake invokes Walker v. FMC by alleging that defendants hindered its ability to secure ceramic welding work by telling prospective customers that Northlake was infringing Glaverbel's patents (remember that it is a predicate of Northlake's claim, which is being accepted as true solely for purposes of dealing with the current motion, that the patents were procured by inequitable conduct). To support that allegation Northlake cites to Hamilton's affidavit. What follows is a summary of what he says there.
In June 1992 Hamilton asked Inland Steel ("Inland") about the possibility of Northlake's replacing Fosbel in performing such work on Inland's coking ovens (Hamilton Aff. ¶ 4). On August 5, 1992 Northlake performed a trial repair to Inland's satisfaction, and Northlake was then invited to submit a price for such repair work and was also advised that Fosbel would be told of Northlake's successful trial and would be "given the opportunity to submit a new price in response to Northlake's quotation" (Hamilton Aff. ¶¶ 5, 6). During an October 1992 meeting with Inland supervisor Willie Johnson ("Johnson") Hamilton was told that Northlake had submitted a lower bid than Fosbel but that Fosbel's Vice President of Sales Ernie Goffe ("Goffe") and salesman Jerry Verdi ("Verdi") had told Johnson that Fosbel was going to sue Northlake for patent infringement, a warning that Johnson had reported to his supervisor Alan Ellis (Hamilton Aff. ¶¶ 9-10). Johnson suggested that Northlake should present evidence to Inland of its "legal rights" to use the ceramic welding process, and it then submitted a copy of Magistrate Judge Rodovich's grant of summary judgment in its favor in the Indiana litigation (Hamilton Aff. ¶¶ 11-12). Northlake ultimately secured Inland's business and began doing ceramic repair work for it on January 25, 1993 (Hamilton Aff. ¶ 13).
Northlake's problem is that the key pieces of evidence in that account the claimed statements by Fosbel employees Goffe and Verdi that interfered with Northlake's effort to get business from Inland face problems posed by the hearsay rule and other rules of evidence. Although Johnson's testimony as to the making of such statements would clearly have been admissible as nonhearsay under Fed.R.Evid. ("Rule"[6]) 801(d)(2)(D), the asserted statements were not heard directly by Hamilton but were rather relayed to him by Johnson. If the story of what Johnson told Hamilton were being offered for the truth of the matter asserted (that is, to prove that Goffe and Verdi had really said what Johnson reported to Hamilton), those purported Goffe-Verdi statements would be inadmissible hearsay (Rule 801(c) and 802). With those statements thus out of the case for that purpose, this Court would have been tendered no evidence that Fosbel or Foseco voiced any warnings or threats of suits for infringement of Glaverbel's patents (Wigod v. Chicago Mercantile Exch., 981 F.2d 1510, 1518-19 (7th Cir.1992) (stating the rule in connection with a similar Rule 56 motion brought against antitrust claims); accord, Winskunas, 23 F.3d at 1268; Randle v. LaSalle Telecommunications, Inc., 876 F.2d *658 563, 570 n. 4 (7th Cir.1989) and cases and treatises cited there).
But suppose that Hamilton's affidavit testimony as to what Johnson told him were somehow independently admissible when viewed in a clearly nonhearsay sense that is, simply as evidence of the fact and of the content of Johnson's statement, rather than for its truth. In that event the Hamilton testimony itself could be admissible, but not to serve Northlake's ultimate goal of establishing the truth of Johnson's account of the Fosbel threats (the impermissible hearsay purpose described in the last paragraph). Would the result be any different in the special environment of a summary judgment motion, remembering that Northlake's Rule 56 task is not to prove the asserted fact, but only to create a reasonable inference of its existence?
Factfinders are regularly instructed, as provided in Rule 105, as to the limited use of evidence that is admissible only for one purpose, rather than unconditionally (see, e.g., Moylan v. Meadow Club, Inc., 979 F.2d 1246, 1247-48, 1250 (7th Cir.1992); Thronson v. Meisels, 800 F.2d 136, 143 (7th Cir.1986)). And just as the constraints of the hearsay rule prevent Hamilton's testimony from being employed to prove that Johnson was truthful in attributing the claimed statements to Goffe and Verdi, so too those constraints forbid the use of that same testimony to create an inference to the same effect (see generally 1 Jack Weinstein & Margaret Berger, Weinstein's Evidence ¶ 105[03] (1993); G. Michael Fenner, Law Professor Reveals Shocking Truth About Hearsay, 62 Mo.-K.C.L.Rev. 1, 58-62 (1993)) even as logical as such an inference might be if the Johnson statement were permitted to be taken as gospel.[7] Again Northlake would strike out, even on the most favorable basis on which Hamilton's statement could arguably be considered.
Indeed, even if that had not been the case Northlake could not survive the present summary judgment motion on the basis of the evidence now under consideration. It will be remembered that the Rule 56 standard co-incides with that under Rule 50(a), which asks whether "there is no legally sufficient evidentiary basis for a reasonable jury to have found for [Northlake] with respect to that issue" that is the teaching of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). If a jury were to find on the sole strength of Hamilton's affidavit that the asserted Goffe-Verdi statements had been made to Johnson, the purposes that underlie the hearsay rule would be seriously subverted: Look at the impossible task that faces a cross-examiner who is required to challenge the truth of such a twice-removed alleged statement to pierce two levels of absent witnesses. That is the stuff of which a Rule 403 exclusion is fashioned: Attenuated probative force of the purported underlying statement, heavily overbalanced by unfair prejudice to the party opposing admissibility. So even if such a hypothetical (though analytically unsound) premise were to be adopted, this Court would perforce still exclude the testimony under discussion.
That then leads to consideration of the next proposed item of evidence. Hamilton also says that Northlake has pursued other welding work but with very limited success: Other than Inland it has obtained work only from Geneva Steel, and that not until February 1993 (Hamilton Aff. ¶ 17). Hamilton has attempted to solicit work from other companies, including six for whom Northlake had done such work before the Indiana litigation, but in each case the prospect raised the possibility of Northlake's continued infringement of Glaverbel's patents and the consequential threat of lawsuits by Fosbel and Glaverbel (Hamilton Aff. ¶¶ 16, 18). Although Hamilton does not say so expressly, he clearly seeks to imply that Northlake's limited success in securing work stems from actions by Fosbel or Foseco or both.
In those respects Northlake does not even reach a level that would bar the evidence in hearsay terms. This time it does not offer even hearsay evidence, by way of Hamilton's *659 affidavit or otherwise, that the various companies learned of Northlake's alleged patent problems from Foseco or Fosbel (or even from Glaverbel for that matter). Given that evidentiary void, Northlake fails to create a reasonable (that is, a fact-based) inference that it was actually Fosbel's or Foseco's conduct that had created the concerns voiced by those companies the necessary predicate for Northlake's claim that Fosbel or Foseco has threatened to enforce the patents in a manner violating federal antitrust and state unfair competition laws. It is Northlake's burden to present evidence sufficient to create a genuine issue, and not for this Court to indulge pure speculation as to the requisite causal connection. Total silence of the evidentiary record on that crucial issue is necessarily fatal to Northlake under Rule 56(e). Thus that second part of Hamilton's affidavit cannot create a reasonable inference of improper conduct by either Fosbel or Foseco during the relevant time frame.
Still another piece of evidence to which Northlake refers is this April 15, 1992 letter sent to Northlake's lawyers by Glaverbel's Washington, D.C. counsel (P.Supp.Mem. Ex. P):
As you know, this office represents Glaverbel, S.A. in patent matters. We wish to "formally" bring the following to your attention.
The use in the United States of ceramic welding powder by Exo-Ram[8] and/or Northlake of the type which was seized by Court Order in Belgium and tested by an independent laboratory designated by a Court-appointed expert, for refractory repair, infringes at least claim 1 of U.S. Patent No. 4,792,468. Furthermore, the powder mixture per se infringes at least claim 1 of U.S. Patent No. 4,920,084. Duplicate copies of each patent are enclosed by fax and mail. As you know, the corresponding Belgian patent has been asserted against your clients in the litigation in Belgium.
The first tentative corroboration we had from Northlake that the same type of powder was actually used in the United States was the November 22nd, 1991 Declaration of Samuel E. May. This information was, of course, confirmed by Mr. May's testimony in the recent case of Glaverbel and Fosbel v. Northlake et al.
In Germany, the challenges to validity of the corresponding German patent by Northlake Marketing & Supply, Inc. and by Lichtenberg Feuerfest GmbH have been rejected by the German Patent Office, and neither has appealed this determination.
Your "invalidity defense" that the "modified drawing of the '468 patent" which showed a refractory particle distribution from U.S. Patent No. 3,684,560, was also the distribution curve of the oxidizable particles (of '560) has been established as mathematically impossible at the deposition of Mr. Mottet which Mr. Brezina took in August 1991.
If you have any other defenses to validity and/or infringement, we invite you to share them with us promptly. Absent very strong, credible, non-cumulative evidence supporting invalidity and/or non-infringement received in this office by Friday, April 24th, 1992, we have been authorized to proceed with a patent infringement lawsuit against your clients based upon infringement of U.S. Patent Nos. 4,792,468 and 4,920,084.[9]
As against Glaverbel that letter would unquestionably be admissible, and it is just as unquestionably evidence of Glaverbel's conduct during the relevant time period.
But the difficulty here is that Northlake seeks to use the letter as evidence of improper conduct by Foseco or Fosbel, and not against the defense chair that is unoccupied by Glaverbel. It was after all Glaverbel's counsel who wrote the letter and who put Northlake on notice of a threatened patent infringement suit by Glaverbel itself. Nothing in the letter suggests any conduct by Foseco or Fosbel: Neither is mentioned in the letter, and nothing in the letter suggests *660 that either is joining in Glaverbel's indicated enforcement activity.
To rely on that item of evidence in opposition to the Foseco-Fosbel Rule 56 motion, Northlake must present some evidence linking one or both of them to Glaverbel by way of "contract, conspiracy or combination" so that it may reasonably be inferred that the content of the letter assuming only for the moment that it states a sufficient predicate for an antitrust claim is ascribable to one or both of them (Greater Rockford Energy & Technology Corp. v. Shell Oil Co., 998 F.2d 391, 397 (7th Cir.1993)). It is not enough that Fosbel as Glaverbel's licensee would derive benefit from the latter's successful enforcement of the '468 and '084 Patents against Northlake.
One added factor bears mention. By definition any evidence against Fosbel or Foseco or both must reflect its or their post-March 31, 1992 conduct, because only that conduct is now at issue in this case. Even if some inference could be drawn that either or both of them was or were involved in triggering Glaverbel's letter (again a matter of sheer speculation), nothing has been offered to support an inference that such hypothetical conduct antedated April 1, 1992 rather than taking place during the ensuing two weeks.
Hence this additional proposed item of evidence is also of no help to Northlake in creating any reasonable inference that Foseco or Fosbel or both engaged in conduct after March 31, 1992 that is violative either of federal antitrust law (see, e.g., Greater Rockford, 998 F.2d at 397; Wigod, 981 F.2d at 1519; Reserve Supply Corp. v. Owens-Corning Fiberglas Corp., 971 F.2d 37, 48-55 (7th Cir.1992)) or of the common law of unfair competition.
That leaves, as the final gossamer strand in Northlake's effort to weave an evidentiary web, its reference to this Glaverbel "Press Release" (P.Supp.Mem.Ex. S):
The High Court of Justice in London recently gave a decision in favor of Glaverbel in the action for infringement of its ceramic welding process brought, in June or 1987, against the British Coal Corporation (BCC) and other companies of that group. The compensation which will have to be paid by BCC is likely to amount to several millions of sterling pounds; the definitive amount, however, must still be determined by the court. We have not yet been advised if BCC will file an appeal.
The ceramic welding process is a novel process developed by Glaverbel for the hot repair of industrial furnaces, mainly in the glass, coke, steel and copper metallurgy fields. It consists of repairs to the refractory linings of these furnaces by means of physicochemical reactions between oxidizing gases, finely divided metals and refractory particles at temperatures in excess of 2000° C.
This technique, considered revolutionary at the time of its invention, remains today the process with the highest performance. It is protected throughout the world by patents and commercialized by Fosbel, a joint venture established in 1981 between the Belgian Glass Group, Glaverbel and the British Group, Foseco. Fosbel has a worldwide commercial network at its disposal, with companies established in Europe, Japan, the United States and Brazil.
Although the version of the Press Release tendered to this Court is undated, the final Foseco-Fosbel reply memorandum acknowledges that it was issued after March 31, 1992. Moreover, Hamilton asserts without contradiction that he received the Press Release in the mail from Fosbel and also that it was "published in several trade publications" (Hamilton Aff. ¶¶ 14-15). At last, then, Northlake has presented some evidence of conduct that both (1) occurred after the watershed date and (2) is at least linked to one of the defendants over whom this Court has jurisdiction.
That however is not enough. To advance its antitrust claims Northlake must also create at least a reasonable inference of bad faith enforcement of Patents '084 and '468 against it.[10] But when the Press *661 Release is viewed alone as it must be because it is really Northlake's only evidence in opposition to the current Rule 56 motion it is un reasonable to construe the document as supporting any such inference.
In principal part the Press Release is a forthright factual report of the result of Glaverbel's U.K. litigation, coupled with a general description of Glaverbel's ceramic welding process. Its only assertion that is even arguably relevant to this case is that Glaverbel's process is also covered by other patents elsewhere (inferentially including the United States) and is commercialized by Fosbel. But those mere avowals of fact cannot reasonably be construed as being the type of action that rises to the level of enforcement (or threatened enforcement) of a patent, which is an essential predicate of Northlake's antitrust claims.
Case law in this area (involving claims of patent misuse) consistently rest on actual lawsuits charging infringement of the tainted patents (see FMC Corp., 835 F.2d at 1412, 1417-18; Argus Chem. Corp. v. Fibre Glass-Evercoat Co., 812 F.2d 1381, 1381, 1384-85 (Fed.Cir.1987); Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 876-77 (Fed.Cir.1985); Brunswick, 752 F.2d at 265-66, 268; Handgards, Inc. v. Ethicon, Inc., 601 F.2d 986, 993 (9th Cir.1979)). That is hardly surprising, for such claims (as was also true in the seminal Walker v. FMC litigation) are most typically brought as counterclaims to patent infringement suits (Brunswick, 752 F.2d at 265).
It may be possible, though this Court is aware of no case that has expressly so held, that some conduct short of instituting a suit (or directly threatening such a suit) could constitute the requisite enforcement action. But whatever that hypothetical lesser quantum of conduct might be, it surely would have to be more than the Delphic reference to the existence of a patent or patents that Northlake offers here. If it were otherwise, any such reference however innocuous could trigger exposure to an antitrust claim. Any such rule would be absurd, for common sense teaches that some more assertive conduct is required before a patent holder can be said, within the meaning of the antitrust laws, to be enforcing its patent.
It is also worth noting that the Press Release does not refer to any particular United States patent. At the time that the Press Release was issued and sent to Hamilton, Glaverbel had licensed to Fosbel not only the patents that are the subject of this litigation '468 and '084 but also '022, the validity of which is not open to challenge here.[11] That ambiguity only serves further to underscore the unreasonableness of the inference that Northlake wishes to call into play here: when the subject of an assertion is itself unclear, it is hard to ascribe any specific assertion to the speaker.[12]
And so this final strand, like the others already discussed, cannot support the weight that Northlake wishes it to bear. It has produced no admissible evidence that reasonably supports the inference of conduct that is a sufficient predicate for an antitrust claim.
Northlake's Substantive Claims
What has been said to this point suffices to dispatch Northlake's Counts IV and V. But this opinion should not close without a few words about the lack of any showing of at *662 least one essential element of any such antitrust claims as those asserted in Count IV.
This Court of course realizes that Northlake has been responding to the Fosbel-Foseco motion and that the focus of that motion has been on the insufficiency of the evidence already discussed. But the fact remains that the teaching of Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553 is that the Rule 56 movant need not "support its motion with affidavits or other materials negating the opponent's claim." As plaintiff, it is Northlake that bears the burden of proof of its antitrust claims in the summary judgment context, just as it would at trial (id. at 324-25, 106 S.Ct. at 2553-54).
It might therefore have been expected that Northlake would at least have taken a pass at addressing, in the form of admissible evidence, the prima facie elements of its antitrust claim. After all, Rule 56(e) could not make it more plain that the nonmovant plaintiff cannot rest on its pleadings, just as it could not at trial. Having said that, however, this Court would be reluctant to rest its own ruling here on a ground that Northlake might argue that it had not understood it was obligated to meet (even though it should have had such an understanding). What follows, then, is a brief exposition of another fundamental gap in Northlake's support for its antitrust claims but as an independent deficiency on Northlake's part, unnecessary to the already-pronounced defeat of those claims.
As already stated, the purported basis for Northlake's Sherman Act claims is the type of conduct proscribed by Walker v. FMC: the alleged fraudulent procurement and the later maintenance and enforcement of patents (Abbott Lab. v. Brennan, 952 F.2d 1346, 1354 (Fed.Cir.1991); Brunswick, 752 F.2d at 264-66). But the mere possession of a "patent does not establish presumption of market power in the antitrust sense" (Abbott Lab. 952 F.2d at 1354; accord, American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1367 (Fed.Cir.1984)). So even if Northlake had established a reasonable inference of such conduct by Foseco or Fosbel or both after March 31, 1992, Northlake would still have to show by the same standard that "the other elements necessary to a [Sherman Act] § 2 case are present" (Walker v. FMC, 382 U.S. at 174, 86 S.Ct. at 349). Although far less common, Sherman Act § 1 cases can also be based on the fraudulent procurement and bad faith enforcement of patents (see, e.g., United States v. Singer Mfg. Co., 374 U.S. 174, 200, 83 S.Ct. 1773, 1787, 10 L.Ed.2d 823 (1963) (White, J., concurring)), in which event the antitrust elements required by that section must be similarly shown.
Sherman Act § 1 violations must involve (Denny's Marina, Inc. v. Renfro Productions, Inc., 8 F.3d 1217, 1220 (7th Cir.1993)):
(1) a contract, combination or conspiracy; (2) a resultant unreasonable restraint of trade in the relevant market; and (3) an accompanying injury.
In comparison, Sherman Act § 2 requires a showing of (United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966)):
(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.
Those respective requirements of "unreasonable restraint of trade" and "monopoly power"[13] share the essential ingredient of demonstrating *663 an adverse effect on competition in the "relevant market."
As for Northlake's Section 1 claim, the determination of that competitive impact must be undertaken using the Rule of Reason, for Northlake has offered no evidence that the patents were used in a "manifestly anticompetitive" manner so as to justify the conclusion that defendants' actions are per se Sherman Act violations (Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977)). And what are crucial both to the Rule of Reason analysis and to assessing the existence of Section 2 "monopoly power" are the delineation of the relevant market (Fishman v. Estate of Wirtz, 807 F.2d 520, 531-32 (7th Cir.1986)) and evidence of the defendant's power in that market (Grinnell Corp., 384 U.S. at 571, 86 S.Ct. at 1704; Wilk v. American Medical Ass'n, 895 F.2d 352, 359 (7th Cir.1990)). "Relevant market" is defined as being made up of "commodities reasonably interchangeable by consumers for the same purposes" (du Pont, 351 U.S. at 395, 76 S.Ct. at 1007). Identification of the relevant market is crucial in evaluating an antitrust claim because, as Justice O'Connor observed in her concurrence to Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 37 n. 7, 104 S.Ct. 1551, 1572 n. 7, 80 L.Ed.2d 2 (1984):
A common misconception has been that a patent or copyright, a high market share, or a unique product that competitors are not able to offer suffices to demonstrate market power. While each of these three factors might help to give market power to a seller, it is also possible that a seller in those situations will have no market power: for example, a patent holder has no market power in any relevant sense if there are close substitutes for the patented product.
Here Northlake has offered no evidence whatever as to the relevant market. Without data on such issues (for example) as (1) the relevant customer base (whether just coke ovens used by steel companies or whether also encompassing, for example, industrial ovens utilized in other industries[14]) or (2) even more critically, whether the relevant market is limited to the type of ceramic welding process offered by Fosbel and Northlake (rather than other methods of repair being "reasonably interchangeable" with that process), it is impossible to draw any reasoned inference as to the presence or absence of Fosbel's market power. That problem is further compounded by the total lack of information as to the presence or absence of other competitors in the market-place. Perhaps Northlake and Fosbel are the only suppliers in the relevant market (whatever it may be), but it is entirely possible that they are only two entrants in a market filled with numerous other competitors. And uncertainty is Northlake's enemy. Silence on that issue (as on the several other issues) cuts against Northlake, as the plaintiff having the burden of proving (or in this instance, of creating reasonable inferences in support of) its claim.
Northlake's failure to present evidence as to the relevant market, which is crucial element of its antitrust claim would independently justify the granting of summary judgment in Foseco-Fosbel's favor (American Hoist, 725 F.2d at 1366; cf. Abbott Lab. 952 F.2d at 1354-55 (a like holding in the Rule 12(b)(6) dismissal context)). As already stated, though, this Court has no wish to court still another claim of wounded surprise (however unjustified) on Northlake's part. This opinion will rest on Northlake's utter failure of proof in evidentiary terms, which has occupied the principal part of the discussion.[15]
*664 Conclusion
As to Northlake's Count IV antitrust claim, it has not met its Rule 56 burden of creating a genuine issue of material fact. Because Northlake's Count V common law unfair competition claim is based on the same alleged conduct by Foseco or Fosbel or both, each of them is entitled to a judgment as a matter of law on both counts. Those counts are therefore dismissed with prejudice.
No claim against Foseco now remains in this action, and it is hence dismissed entirely as a defendant. In accordance with National Metalcrafters v. McNeil, 784 F.2d 817, 821 (7th Cir.1986) this Court expressly determines under Rule 54(b) that there is no just reason for delay and expressly directs the entry of final judgment in favor of Foseco.
As to Fosbel, however, Northlake's Counts I through III remain alive. Accordingly this Court sets a status hearing for 8:45 a.m. August 18, 1994, at which time those remaining parties will be expected to discuss the necessary future proceedings in the case.
NOTES
[1] Only Foseco and Fosbel have been served with process. Glaverbel has not and hence is not subject to this Court's jurisdiction.
[2] Although neither the SAC nor any of the submissions on the current motion suggest just which jurisdiction's law should supply the rules of decision in that last respect, this Court's disposition of Count V renders it unnecessary to address that choice of law question.
[3] Neither side has filed the General Rule 12 statements that are required by this District Court to facilitate the resolution of Rule 56 motions, though each has submitted evidentiary materials together with its memoranda. All of this opinion's factual recitals are therefore gleaned from those memoranda (when properly supported by attached exhibits, deposition testimony or affidavits). This opinion refers to only one other submission: Northlake's January 18, 1994 Further Supplemental Response, which will be cited as "P.Supp.Mem.."
[4] While affidavits are not ordinarily the proper form in which to admit evidence at trial, they are clearly sufficient to meet a nonmovant's burden under Rule 56(e) as long as they are "admissible in content, in the sense that a change in form but not in content, for example a substitution of oral testimony for a summary of that testimony in an affidavit, would make the evidence admissible at trial" (Winskunas, 23 F.3d at 1268).
[5] To be more precise, Money Dep. 21 discloses only that "a Glaverbel Group Company" is the other shareholder. Because this Court has no jurisdiction over Glaverbel anyway, that other shareholder will simply be referred to as Glaverbel for ease of designation.
[6] No confusion should be engendered by this opinion's dual use of the term "Rule" to denote both the Federal Rules of Civil Procedure (all of which bear single-digit or two-digit numbers) and the Federal Rules of Evidence (all of which bear three-digit numbers).
[7] After all, the other alternative would seem to be that Johnson had fabricated the making of the Goffe-Verdi statements and with what motive, to what end?
[8] Exo-Ram is "an affiliate of Northlake" (P.Supp.Mem. 5).
[9] [Footnote by this Court] As of the parties' last submission in this case (on March 23, 1994) no such suit had been filed.
[10] Northlake's Supp.Mem. 2 suggests that Sherman Act liability may be imposed merely for the fraudulent procurement of a patent. That is simply wrong it must also be shown that the patent has been used after its issuance in an anticompetitive fashion (Brunswick Corp. v. Riegel Textile Corp., 752 F.2d 261, 266 (7th Cir. 1984)).
[11] Northlake and Foseco-Fosbel agree that the British patent referred to in the Press Release corresponds to Glaverbel's United States Patent No. 3,684,560 a patent that had expired as of March 31, 1992. That being so, the only United States patents to which the Press Release could have referred were one or more of Patents '468, '084 and '022.
[12] Northlake's Supp.Mem. 20 argues that because it "prevailed on Glaverbel's infringement claims under the '022 patent" in the Indiana litigation, the Press Release can logically be referring only to Patents '468 and '084. That contention is seriously misleading. In that prior litigation Magistrate Judge Rodovich did grant summary judgment to Northlake on Glaverbel's claim of patent infringement, but after a trial on the merits he held that Patent '022 was valid. Thus the statement in the Press Release that Glaverbel's ceramic welding process "is protected throughout the world by patents and commercialized by Fosbel" cannot by any stretch of the imagination be labeled a bad faith assertion. At least as to Patent '022, Glaverbel held and holds a patent that enjoys a judicial finding of validity.
[13] Sherman Act § 1's "restraint of trade" element is assessed in terms of "the competitive significance" of defendant's conduct (National Soc'y of Professional Eng'rs v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978); see also Wisconsin Music Network, Inc. v. Muzak Ltd. Partnership, 5 F.3d 218, 221-22 (7th Cir.1993); Banks v. NCAA, 977 F.2d 1081, 1087-88 (7th Cir.1992), quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107-08 (7th Cir.1984)). Sherman Act § 2 also applies a competition-based definition (United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956)):
Monopoly power is the power to control prices or exclude competition.
Accord, such cases as American Academic Suppliers, Inc. v. Beckley-Cardy, Inc., 922 F.2d 1317, 1319 (7th Cir.1991); Indiana Grocery, Inc. v. Super Valu Stores, Inc., 864 F.2d 1409, 1414 (7th Cir.1989).
[14] Fosbel says that it services ovens used by the steel, glass and copper industries, while Northlake's filings mention only its repair work of coke ovens used by the steel industry.
[15] This may be somewhat more charitable than Northlake deserves. Celotex, 477 U.S. at 325, 106 S.Ct. at 2554 teaches that:
the burden on the moving party [under Rule 56(c)] may be discharged by "showing" that is, pointing out to the district court that there is an absence of evidence to support the non-moving party's case.
And Foseco-Fosbel did just that when they said this in their May 26, 1993 memorandum opposing Northlake's motion to vacate this Court's earlier grant of summary judgment in favor of Foseco-Fosbel:
We are aware of no authority which allows Northlake, in response to summary judgment, to selectively avoid certain issues of proof. For example, there is no basis to avoid proof of the relevant market in an antitrust suit.
When this Court granted that motion to vacate, Northlake had clearly and specifically been placed on notice of its burden to prove the relevant market as part of its antitrust claim. It should really make no difference that Foseco-Fosbel did not advert to the issue on the current go-round, for the burden on Northlake never changed and it was never met. All the same, this Court does not (though it well might) rest this opinion on that failure by Northlake. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261700/ | 861 F.Supp. 133 (1994)
WOLFF SHOE CO., Plaintiff,
v.
UNITED STATES, Defendant.
Court No. 92-08-00557. Slip Op. 94-133.
United States Court of International Trade.
August 24, 1994.
Sosnov & Associates, Steven R. Sosnov, for plaintiff.
Frank W. Hunger, Asst. Atty. Gen., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, James A. Curley (Edward N. Maurer, Office of the Asst. Chief Counsel, U.S. Customs Service, of counsel), for defendant.
MEMORANDUM OPINION
TSOUCALAS, Judge:
Plaintiff, Wolff Shoe Co. ("Wolff"), brought this action to contest countervailing duties and the underlying payment of interest assessed by the United States Customs Service ("Customs") on non-rubber footwear imported *134 by Wolff from Spain. Defendant has petitioned the Court to dismiss the case pursuant to Rule 12(b) of the Rules of this Court, contending this Court lacks jurisdiction because plaintiff filed its summons more than 180 days after its protests were denied and therefore failed to comply with 28 U.S.C. § 2636(a) (1988).
Wolff filed five protests against liquidations of the various entries in this case which were decided in August and September of 1991. The grounds asserted in the protests were (1) countervailing duties should not have been assessed, or, alternatively, (2) if countervailing duties are applicable, the duty should not exceed the estimated amount and/or (3) interest should not have been assessed from the date the estimated duties were deposited through the date of liquidation. Customs checked the "approved" box on these protests and added a handwritten "in part" and stamped "approved as to interest computation." The entries were then reliquidated only as to interest and the difference was refunded to Wolff.
Wolff then protested the reliquidations on November 19, 1991, re-asserting grounds (1) and (2) without the claim as to interest. This subsequent protest was denied on March 6, 1992 on grounds that it was duplicative of the original protests filed in this matter. Wolff then filed a summons in this Court on August 13, 1992.
Defendant asserts that Customs' response to Wolff's protests of the liquidation operates as a denial and, therefore, this Court lacks jurisdiction over this matter pursuant to 28 U.S.C. § 2636(a) which requires that an action to contest the denial of a protest be brought within 180 days of that denial. Defendant cites Sanyo Elec., Inc. v. United States, 81 Cust.Ct. 114, 115, C.D. 4775, 1978 WL 31106 (1978) for the proposition that the test to determine whether a protest is denied or granted is "the extent to which the protest has resulted in a change of the protested decision." Since Customs only reliquidated as to the interest, defendant argues, it follows that Customs denied the protest as to the assessment of countervailing duties and Wolff had 180 days after that denial in which to properly bring an action before this Court.
Wolff maintains that Customs' response to its initial protests constitutes an approval of the protest because Customs checked the "approved" box and neglected to check the "denied in full or in part" box. Wolff points out that statutory law deals only with approvals, denials in whole and denials in part of protests, granting this Court jurisdiction only in the case of a denial. See, i.e., 28 U.S.C. § 2636(a). Wolff asserts that, after Customs expressly approved the protests, it was required to protest the reliquidation in order to get judicial review.
This Court finds that Customs' response to Wolff's initial protests constitutes an approval of the protest.
Wolff's protests asserted three grounds: (1) countervailing duties should not have been assessed, or, alternatively, (2) if countervailing duties are applicable, the duty should not exceed the estimated amount and/or (3) interest should not have been assessed from the date the estimated duties were deposited through the date of liquidation. Clearly, the substance of the protests is the assessment of countervailing duties. Interest is incidental to and determined by the amount of countervailing duties. That being so, when Customs approved the protest, notwithstanding that it said "as to interest only," Customs left the substance of the protest open by not specifically denying it. Further, for Customs to check "approved" on a form where the choices are "approved" and "denied in full or in part" is to indicate approval. The addition of "in part as to interest" is meaningless where the crux of the protest is the assessment of countervailing duties. In addition, Sanyo is not applicable here because the initial protest underlying Sanyo presented two alternative classifications, not, as here, a claim as to duties assessed with an incidental, related claim as to interest. Sanyo, 81 Cust. Ct. at 114, C.D. 4775, 1978 WL 31106. Therefore, Customs did not deny the protests of the liquidation and 28 U.S.C. § 2636(a) does not bar Wolff's later protest of the reliquidation.
*135 Defendant also contends that Wolff's protest of the reliquidation is barred because, by re-asserting the claim as to assessment of countervailing duty, it raised a question not involved in the reliquidation and violated 19 U.S.C. § 1514(d) (1988)[1]. See also Computime, Inc. v. United States, 772 F.2d 874, 877 (Fed.Cir.1985). Because the initial protests were approved only "as to interest" and the reliquidation was only as to the recomputation of interest, defendant asserts that the subsequent protests were not valid. Consequently, according to the defendant, this Court lacks subject matter jurisdiction over this action or, alternatively, Wolff fails to state a claim on which relief can be granted.
Without directly addressing Computime or 19 U.S.C. § 1514(d), Wolff argues it properly contested the assessment of countervailing duties in its protest of the reliquidation because Customs did not express a denial of the initial protests. Therefore, Wolff asserts, a protest of the reliquidation was required to exhaust available administrative remedies and to vest this Court with jurisdiction.
This Court is unpersuaded by defendant's arguments and finds that Wolff's protest as to the reliquidation was a valid and timely protest.
Pursuant to 28 U.S.C. § 1581(a) (1988), this Court shall have exclusive jurisdiction over any civil action commenced to contest Customs' denial of a protest. Absent a denial, however, this Court has no jurisdiction. For the reasons set out above, this Court finds that Customs approved Wolff's protests against the liquidation of its entries, both as to the assessment of countervailing duties and as to interest. Therefore, when Customs failed to reliquidate as to the assessment of countervailing duties, the only recourse by which Wolff could appeal to this Court was by protesting the reliquidation.
Thus, under these circumstances, the protest of the reliquidation is a valid renewal of the protest of the liquidation, even when the later protest is identical to the earlier one. See Transflock, Inc. v. United States, 15 CIT 248, 249, 765 F.Supp. 750, 751 (1991); see also Philip Morris U.S.A., A Division of Philip Morris Inc. v. United States, 13 CIT 556, 561, 716 F.Supp. 1479, 1483 (1989), aff'd in part without opinion and rev'd in part without opinion, 907 F.2d 158 (Fed.Cir. 1990).
Defendant's argument that 19 U.S.C. § 1514(d) bars such a protest is without merit. That provision has consistently been interpreted as barring protests of reliquidation when the importer failed to raise a claim in its protest of the liquidation and is raising it for the first time in its protest of the reliquidation. See, e.g., Audiovox Corp. v. United States, 764 F.2d 848, 849 (Fed.Cir.1985); see also Computime, 772 F.2d at 877[2].
Therefore, 19 U.S.C. § 1514(d) does not bar Wolff's protest. A contrary result would allow Customs to approve a protest of a liquidation and then fail to reliquidate as to the grounds asserted, barring the importer's only recourse to this Court.
In addition, it bears noting that Wolff's protest of the reliquidation was timely pursuant to 19 U.S.C. § 1514(c)(3)(A) (1988) which requires that a protest be filed within ninety days after notice of reliquidation. The entries were reliquidated between August and October 1991 and Wolff's protest as to the reliquidation was filed within ninety days thereafter, on November 19, 1991.
Finally, this Court notes that the present action complies with 28 U.S.C. § 2636(a) which requires that an action to contest the denial of a protest be brought within 180 days of that denial. Customs denied Wolff's protest of the reliquidations on March 6, 1992 and Wolff filed a summons in this Court *136 within 180 days thereafter, on August 13, 1992.
Conclusion
This Court finds Customs approved Wolff's protest of the liquidation, Wolff's subsequent protest of reliquidation was valid and timely, and this action was timely brought pursuant to 28 U.S.C. § 2636(a). Accordingly, defendant's motion to dismiss for lack of jurisdiction is denied and this Court finds plaintiff does not fail to state a claim upon which relief can be granted.
NOTES
[1] 19 U.S.C. § 1514(d) states: "The reliquidation of an entry shall not open such entry so that a protest may be filed against the decision of the Customs Service upon any question not involved in such reliquidation."
[2] The Computime court held an importer could not challenge classification of a separate category of merchandise for the first time at reliquidation when it could have raised the argument in its protest against the initial reliquidation. Interpreting 19 U.S.C. § 1514(d), the Court stated: "a protest following liquidation can contest only those points raised by the Customs Service's decision on the initial protest." Computime, 772 F.2d at 877 (emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3094979/ | Opinion filed December 2,
2010
In The
Eleventh
Court of Appeals
__________
No. 11-10-00320-CR
__________
CAROL
JOHNENE MORRIS, Appellant
V.
STATE
OF TEXAS, Appellee
On
Appeal from the 441st District Court
Midland
County, Texas
Trial
Court Cause No. CR37161
M E M O R A N
D U M O P I N I O N
Carol Johnene Morris filed this appeal from the denial
of her motion to recuse. Upon receiving the docketing statement, the notice of
appeal, and the clerk’s record on October 25, 2010, we notified Morris in
writing that the order from which she appealed did not appear to be a final
appealable order. We notified Morris that her appeal would be subject to
dismissal if she did not respond by November 9, 2010, showing grounds to
continue this appeal. Morris has not responded.
The order denying Morris’s motion to recuse is an
interlocutory order, not a final appealable order. Means v. State, 825
S.W.2d 260 (Tex. App.—Houston [1st Dist.] 1992, no pet.). We have no
jurisdiction to review that order at this time.
The appeal is dismissed for want of jurisdiction.
December 2, 2010 PER
CURIAM
Do not publish. See Tex.
R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2261706/ | 861 F.Supp. 527 (1994)
Sharon Joyce WALKER, widow of Wade J. Trahan, on her own behalf and behalf of her minor children, Jason Dwayne Trahan and Josh Michael Trahan
v.
Armogene BRAUS and Terra Resources, Inc.
Civ. A. No. 88-0917.
United States District Court, E.D. Louisiana.
August 2, 1994.
*528 David B. Allen and Herbert W. Barnes, Samanie, Barnes & Allen, Houma, LA, for Josh Michael Trahan and Jason Dwayne Trahan.
Maurice P. Mathieu and Jay James Luke, Mathieu & Dagate, Houma, LA, for Sharon Joyce Walker, widow of Wade J. Trahan, on her own behalf & on behalf of her minor children, Jason Wayne Trahan & Josh Michael Trahan.
Harold Menton Wheelahan, III, Harold M. Wheelahan, III, PLC and Louis John Cosenza, New Orleans, LA, for Ungar & Wheelahan intervenor-plaintiff.
Guy E. Wall and Scott A. O'Connor, Gordon, Arata, McCollam & Duplantis, New Orleans, LA, for Terra Resources, Inc. and Terra Industries, Inc.
Charles E. Bourg, II, Morgan City, LA, for Armogene Braus.
Maurice P. Mathieu and Jay James Luke, Mathieu & Dagate, Houma, LA, for State Farm Fire & Cas. Co.
ORDER
HEEBE, District Judge.
This cause came on for a hearing on a previous day on the motion of plaintiff, Sharon Joyce Walker, individually and on behalf of her minor children, Jason Dwayne Trahan and Josh Michael Trahan, to modify and/or amend the judgment entered on May 7, 1992, by assessing 20 percent of the fault of the accident which killed Wade J. Trahan, the plaintiff's husband, against defendant, Armogene Braus. Plaintiff has also been asked to show cause as to why the Court should not strike the damages awarded for past and future loss of society in light of the decision of the Fifth Circuit Court of Appeals in Walker v. Braus, 995 F.2d 77 (5th Cir.1993). Both parties have agreed to waive oral argument.
*529 The Court has considered the legal memoranda submitted by the parties and is now fully advised in the premises and ready to rule. The Court finds that (1) Braus is 20 percent at fault for the death of Wade Trahan and (2) dependents of an operator of a fishing boat may not recover loss-of-society damages in a wrongful death action brought under general maritime law.
I. FACTS
On January 5, 1988, a fishing vessel owned and operated by Wade Trahan was travelling at an excessive rate of speed on the wrong side of Turtle Bayou. Trahan's boat collided head-on with a vessel owned and operated by defendant, Armogene Braus;[1] Trahan was killed instantly. The collision occurred in Terrebonne Parish, Louisiana, approximately 160 feet north of the intersection between Turtle Bayou and the United Gas Pipeline Canal. The accident occurred on a sharp bend in the waterway, where the Bayou is narrow. The bend creates a blind spot which makes it difficult to see approaching traffic on the other side of the bend. At the time of the accident, Trahan was neither a seaman nor a longshoreman.
Trahan's vessel was a bass fishing boat approximately sixteen feet long and was propelled by a seventy horsepower outboard motor. Trahan was the driver and sole occupant of the boat. The Braus vessel was a twenty-five foot aluminum crew boat. Armogene Braus captained the boat on the day of the accident. Aboard Braus' boat were four workers for Action Oilfield Services, Inc., a company with whom defendant, Terra Resources, Inc. ("Terra"), contracted to provide labor in Terra's oil fields. Terra did not own any vessels. Accordingly, in June 1987, Terra began to charter vessels from Braus. Harold DeLeon, an employee of Terra, orally chartered the Braus vessel from Braus Marine Rentals, a boat rental company owned by Braus. Braus operated his own boat when transporting workers and equipment.
At the time of the accident, the four workers were embarked on a job for Terra, and as a result, were the employees of Terra. Walker, 995 F.2d at 79. The four workers and Braus were riding in a rectangular cabin situated in the center of the boat, thereby reducing their capacity to see and hear oncoming vessels.
II. PROCEDURAL HISTORY
On March 4, 1988, plaintiff brought a general maritime action pursuant to Fed. R.Civ.P. 9(h) against defendants, Armogene Braus and Terra Resources, Inc., to recover damages for the wrongful death of Wade Trahan.[2]
This Court bifurcated the trial on the issues of liability and damages. As to liability, the Court concluded the following: (1) Trahan was 70 percent contributorily negligent for piloting his craft at an excessive speed on an unsafe course: (2) Trahan was 10 percent contributorily negligent for failing to maintain an adequate lookout; (3) the Braus vessel was 10 percent at fault for failure to maintain an adequate lookout; and (4) the Braus vessel was 10 percent at fault for failing to sound its horn when approaching the blind corner.
On April 8, 1991, the Court entered findings of fact and conclusions of law assessing 80 percent of the fault against Trahan and 20 percent against Terra. The Court assessed the vessel's 20 percent fault against Terra on the ground that the dealings between Terra and Braus were consistent with a demise charter. Under a demise or bareboat charter, the owner relinquishes total control and full possession to the charterer. Walker, 995 F.2d at 81. A demise charter requires complete transfer of possession, command, and navigation of the vessel from the owner to the charterer. Agrico Chemical *530 Co. v. M/V Ben W. Martin, 664 F.2d 85, 91 (5th Cir.1981), citing Gaspard v. Diamond D. Drilling Co., 593 F.2d 605, 606 (5th Cir. 1979). The vessel is transferred to the charterer without crew, fuel, or supplies. Because the charterer's personnel operate and man the vessel while the charter is in existence, the charterer is responsible for the negligence of the vessel or its crew. Walker, 995 F.2d at 81. The conclusion of this Court that the arrangement between Terra and Braus amounted to a demise charter compelled the conclusion that Terra, as demise charterer, be charged with the fault of the Braus vessel.
On the issue of damages, this Court awarded $160,000 for loss of society, $87,831.19 for loss of support from the date of the accident until trial, $271,612.56 for future loss of support, and $5,270 for funeral expenses, all of which were reduced by 80 percent, the percentage of fault attributed to Wade Trahan. On May 7, 1992, this Court entered judgment for the plaintiffs in the amount of $104,942.75.
Plaintiff and Terra appealed the judgment to the Fifth Circuit Court of Appeals. Braus did not appeal. On July 14, 1993, the Fifth Circuit reversed this Court's finding that Terra was a demise charterer of the Braus vessel. The Fifth Circuit stated that the factors relied upon by this Court were legally insufficient to create a bareboat charter. Walker, 995 F.2d at 82. The appellate court stated that "the law is well settled in this Circuit that the type of arrangement Terra had with Braus was for a ferry or taxi service, or a time charter; and, therefore, not a bareboat charter." Id. at 81. The circuit court reversed the judgment of this Court imposing liability on Terra and remanded for "further proceedings as may be appropriate." Id. at 82.
The Fifth Circuit also asked this Court to take a second look at the award for loss of society. The Court stated:
Since the issue of consortium damages may well come up again in the further proceedings, we suggest to the trial court that recent case law developments indicate that the trend is to eliminate consortium damages across the board in maritime cases.
* * * * * *
The Supreme Court has clearly indicated its desire to achieve uniformity of damage recoveries in the exercise of admiralty jurisdiction. Allowing [Trahan] to recover loss of consortium damages would directly contradict the policy of uniformity emphasized and relied on by the Court in Miles; and without expressly so deciding at this time, we acknowledge the strength of the argument that damages for loss of society may no longer be permitted in a general maritime wrongful death action involving the operator of a fishing boat.
Walker, 995 F.2d at 80, 82 (emphasis added).
On December 10, 1993, plaintiff moved to modify and/or amend this Court's judgment to reflect that Braus was 20 percent at fault for the collision. Because this Court originally held that the arrangement between Braus and Terra was a demise charter, this Court concluded that Terra was 20 percent at fault for the death of Trahan. As a result, the Court did not have to address the extent of Braus' liability for Trahan's death. The Fifth Circuit's subsequent reversal of this finding and the dismissal of Terra from the case prompted the filing of plaintiff's motion to include Braus in the judgment and to assess against him the 20 percent fault originally assessed against Terra. On January 31, 1994, Braus filed an opposition to the motion to modify and/or amend the judgment and suggested that the Court reconsider its findings that the Braus vessel was 10 percent negligent for failing to maintain a proper lookout and 10 percent negligent for failing to sound a signal as it approached a blind bend.
In addition, pursuant to the instructions of the Fifth Circuit, this Court asked the plaintiff to show cause as to why the award for loss of society should survive after Walker. The plaintiff subsequently submitted a supplemental memorandum and argued that dependents of persons killed in state territorial waters may recover loss-of-society damages in a maritime wrongful death action.
*531 Both the motion to amend and/or modify the judgment and the plaintiff's response to the rule to show cause are presently before this Court.
III. THE MOTION TO MODIFY AND/OR AMEND THE JUDGMENT
This Court found that the Braus vessel was a total of 20 percent negligent for violating two sections of the Inland Navigational Rules, section 2009(f) and section 2005. 33 U.S.C. §§ 2005, 2009(f). The Braus vessel was found 10 percent negligent for failing to maintain a proper lookout in violation of section 2005.[3] As previously stated in this Court's conclusion of law number 26, "the question of a proper lookout is one of fact to be determined from all of the circumstances." Walker v. Braus, 1991 WL 55877, at *7, 1991 U.S.Dist. LEXIS 4785, at *19 (E.D.La. Apr. 8, 1991), citing Inland Oil and Transport Co. v. Ark-White Towing Co., 696 F.2d 321, 325 (5th Cir.1983), quoting China Union Lines, Ltd. v. A.O. Anderson & Co., 364 F.2d 769 (5th Cir.1966), cert. denied, 386 U.S. 933, 87 S.Ct. 955, 17 L.Ed.2d 805 (1967).
The Braus vessel was also found to be 10 percent negligent for failing to sound the appropriate signal while approaching the blind bend in Turtle Bayou in violation of section 2009(f) of the Inland Navigational Rules.[4]
Defendant Braus, in his objection to plaintiff's motion, contests the finding that the collision was a blind bend collision, arguing that there is no blind bend on Turtle Bayou where the accident occurred. Braus maintains that if the vessels were operating within the prescribed inland rules, then the bend is not a blind bend. His theory is that Trahan was travelling at an excessive speed on the wrong side of the Bayou, and had Trahan been following the proper inland rules, then the blind bend rule would not apply and Braus would not be 10 percent negligent for violating 33 U.S.C. § 2009(f). Braus suggests that a blind bend under the Inland Navigational Rules only exists if the bend is blind as to the vessels when the vessels are operating within and following the inland rules. Braus claims that if a vessel is operating in violation of the inland rules when a possible violation occurs, then as to the vessel there can be no violation of the blind bend rule. Braus also asks the Court to review the aerial photographs and diagrams of the accident scene.
This Court thoroughly reviewed all of the evidence prior to issuing its findings of fact and conclusions of law in its two opinions. Braus has not pointed to any clear errors in the previous findings of this Court. The Fifth Circuit on appeal did not disturb the findings of fault as to the Braus vessel and Braus has not submitted any new evidence which would alter this Court's finding that the Braus vessel was 20 percent at fault.
The Fifth Circuit's conclusion that Terra was a time charterer and therefore not liable for the negligence of the vessel compels this Court to conclude that Braus is responsible for the 20 percent negligence of his vessel. Accordingly, the motion of plaintiff to modify and/or amend the judgment to reflect that defendant Braus is 20 percent at fault for the death of Wade Trahan is granted.
IV. DAMAGES FOR LOSS OF CONSORTIUM/LOSS OF SOCIETY UNDER GENERAL MARITIME LAW[5]
This case requires the Court to consider the breadth and scope of nonpecuniary *532 damages recoverable in a wrongful death action brought under general maritime law. Plaintiff argues that dependents of persons killed in state territorial waters may recover loss-of-society damages in a maritime wrongful death action. For the reasons that follow, this Court holds that damages for loss of society are not available in a general maritime wrongful death action involving a person killed while operating a fishing boat within state territorial waters. This conclusion comports well with Supreme Court jurisprudence and the trend within the Fifth Circuit toward denying loss-of-society damages in all maritime cases.
A. Supreme Court Jurisprudence Regarding Loss-Of-Society Damages In A Maritime Wrongful Death Action.
The wrongful death action for persons killed in state territorial waters was born in Moragne v. State Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). The Moragne Court, however, did not define the precise contours of the wrongful death cause of action, and in particular, the type of damages recoverable. Id. at 408, 90 S.Ct. at 1791. Nevertheless, the Court set forth two broad principles to guide lower courts who are called upon to determine the scope of the Moragne action.
The first is uniformity in federal maritime law. The Moragne Court stated that "recognition of a right to recover for wrongful death under general maritime law will assure uniform vindication of federal policies, removing the tensions and discrepancies that have resulted from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts." Id. at 401, 90 S.Ct. at 1788. The second consideration is to accord "special solicitude" to those persons (and their beneficiaries) who come within the admiralty jurisdiction of the federal courts. Id. at 387, 90 S.Ct. at 1780. According to the Moragne Court, "`the humane and liberal character of proceedings in admiralty [is] to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.'" Id., quoting The Sea Gull, 21 F.Cas. 909, 910 (C.C.Md.1865).
With these two principles in mind, the Supreme Court in Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 585-90, 94 S.Ct. 806, 814-18, 39 L.Ed.2d 9 (1974), permitted dependents of a longshoreman killed in state territorial waters to recover damages for loss of society. The Court defined the term "society" quite broadly as a "range of mutual benefits each family member receives from the others' continued existence, including love, affection, care, attention, companionship, comfort, and protection." Id. at 585, 94 S.Ct. at 814. In reaching its conclusion, the Gaudet Court reasoned that "our decision is compelled if we are to shape the remedy to comport with the humanitarian policy of the maritime law to show `special solicitude' for those who are injured within its jurisdiction." Id. at 588, 94 S.Ct. at 816; see also id. at 577, 94 S.Ct. at 811. This rule was later extended to include dependents of injured longshoremen. American Export Lines, Inc. v. Alvez, 446 U.S. 274, 276, 100 S.Ct. 1673, 1674, 64 L.Ed.2d 284 (1980). Alvez was also premised on the notion that persons that come within the admiralty jurisdiction of the federal courts deserve "special solicitude." Id. at 284-86, 100 S.Ct. at 1679-80.
However, in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 622-26, 98 S.Ct. 2010, 2013-16, 56 L.Ed.2d 581 (1978), the Supreme Court declined to award loss-of-society damages to dependents of a longshoreman killed on the high seas. The Court reasoned that the Death on the High Seas Act ("DOHSA"), 46 U.S.C.App. §§ 761-768 (West Supp.1994), expressly limits damages to pecuniary loss, thereby precluding the Court from reading into the statute recovery for nonpecuniary losses. Id. at 625-26, 98 S.Ct. at 2015-16; accord Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 216, 106 S.Ct. 2485, 2491, 91 L.Ed.2d 174 (1986). Higginbotham, however, created an inconsistency: If a person was killed in state territorial waters, Gaudet permitted recovery for loss of society; on the other hand, if the person had the misfortune of being killed on the high seas, loss-of-society damages were not recoverable.
*533 This anomaly was rectified in Miles v. Apex Marine Corp., 498 U.S. 19, 32-33, 111 S.Ct. 317, 325-26, 112 L.Ed.2d 275 (1990), where the Supreme Court held that nondependents of a Jones Act seaman may not recover loss-of-society damages under general maritime law. In doing so, Miles limited the remedy available under Gaudet only to longshoremen killed in state territorial waters. Id. at 31, 111 S.Ct. at 325.[6] As such, the Court restored "a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law." Id. at 33, 111 S.Ct. at 326.
The Supreme Court's decision in Miles is important in two respects. First, the Supreme Court has indicated that the policy of providing uniformity in the type of damages recoverable in a maritime wrongful death action, whether brought pursuant to statute or the common law, is an important ingredient in determining whether certain types of damages such as loss of society are recoverable. 498 U.S. at 30-33, 111 S.Ct. at 324-26. Second, Miles represents a doctrinal shift away from a broad reading of "special solicitude" and toward a more narrow one. Rather than provide "special solicitude" according to the dictates of Moragne, Gaudet, and Alvez, the Supreme Court has indicated in Miles that uniformity in maritime law requires that those who sue under general maritime law receive no more "solicitude" than those who sue under the DOHSA or the Jones Act. See, e.g., Miles, 498 U.S. at 30-33, 111 S.Ct. at 324-26.[7]
Turning to the issue presented in this case, the Court notes that the Supreme Court has not specifically decided the question whether the dependents of a decedent who was neither a seaman nor a longshoreman can recover loss-of-society damages under general maritime law. After Miles, however, it is clear that uniformity in maritime law drives the determination of whether such damages are recoverable. With this in mind, the Court now looks to the case law within the Fifth Circuit to determine whether loss-of-society damages are available under general maritime law to the dependents of a person killed in state territorial waters who was neither a seaman nor a longshoreman.
B. The Trend Within The Fifth Circuit Regarding Recovery For Loss Of Society Under General Maritime Law.
Although the Fifth Circuit has not addressed the question whether dependents of a nonseaman killed within state territorial waters can recover loss-of-society damages, the Fifth Circuit has addressed the issue of loss-of-society damages on four occasions since the Supreme Court decided Miles. In three of these cases, the Fifth Circuit relied on Miles and denied recovery for loss of society to dependents of longshoremen and seamen. In Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119, 122-23 (5th Cir.1994), the Fifth Circuit declined to permit the dependents of a longshoreman killed on the high seas to recover for loss of society. The court reasoned that because the decedent did not meet the requirements of Gaudet or Alvez (longshoreman killed or injured within state territorial waters), loss-of-society damages would be unavailable to the decedent's dependents. Id. Similarly, in Michel v. Total Transp., Inc., 957 F.2d 186, 191 (5th *534 Cir.1992), the Fifth Circuit held that the dependents of a Jones Act seaman could not recover loss-of-consortium damages for injuries the seaman suffered in the course of his employment. The Fifth Circuit also declined to award loss-of-society damages to the wife of a seaman injured within state territorial waters. Murray v. Anthony J. Bertucci Construction Co., Inc., 958 F.2d 127, 129-32 (5th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 190, 121 L.Ed.2d 134 (1992); accord Horsley v. Mobil Oil Corp., 15 F.3d 200, 202-03 (1st Cir.1994); Lollie v. Brown Marine Serv., Inc., 995 F.2d 1565, 1565 (11th Cir. 1993) (per curiam); Smith v. Trinidad Corp., 992 F.2d 996, 996 (9th Cir.1993) (per curiam). The one case in which the Fifth Circuit awarded loss-of-society damages involved a longshoreman killed within Louisiana territorial waters, thereby entitling the dependents to damages pursuant to Gaudet. Randall v. Chevron U.S.A., Inc., 13 F.3d 888, 903 (5th Cir.1994). The Randall court found that Gaudet is still good law within the Fifth Circuit and that the case came "squarely within [Gaudet's] ambit." Id.
A similar trend toward denying loss-of-society damages under general maritime law appears among the lower courts within the Fifth Circuit. In Earhart v. Chevron U.S.A., Inc., 852 F.Supp. 515, 515-16 at *1-*2 (E.D.La.1993) (Clement, J.), the district court refused to award the wife of a nonseaman injured on a fishing vessel within state territorial waters loss-of-society damages. In Carnival Cruise Lines v. Red Fox Indus., Inc., 813 F.Supp. 1185, 1187 (E.D.La.1993) (Clement, J.), the district court refused to permit dependent relatives of an injured seaman to recover loss-of-society damages against a third party manufacturer. According to the court in Carnival Cruise Lines, a contrary conclusion would "strike a blow to the policy [of uniformity] Miles sought to establish." Id. Similarly, in Ellender v. John E. Graham & Co., 821 F.Supp. 1136 (E.D.La.1992) (Feldman, J.), the district court declined to permit an injured spouse to recover loss-of-consortium damages against a third-party nonemployer on the ground that "the rationale in Miles extends to a nonemployer." Id. at 1136. Finally, in In re Waterman S.S. Corp., 780 F.Supp. 1093, 1094-95 (E.D.La.1992) (Sear, C.J.), the district court held that "consortium type claims cannot be recovered for the wrongful death of a seaman, whether under either the Jones Act or general maritime law."[8]
There appears to be only one decision within the Fifth Circuit which permitted the dependents of a nonseaman killed within state territorial waters to recover loss-of-society damages under general maritime law, but that decision does not survive Miles. In Skidmore v. Grueninger, 506 F.2d 716, 727-29 (5th Cir.1975), the Fifth Circuit held that the spouse and children of a person killed on a pleasure boat in West Virginia territorial waters could recover for loss of society. The Skidmore court relied on the Supreme Court's decision in Gaudet and reasoned that loss-of-society damages are recoverable because of "the `humanitarian policy of the maritime law to show "special solicitude" for those who are injured within its jurisdiction.'" Id. at 728, quoting Gaudet, 414 U.S. at 588, 94 S.Ct. at 816. However, Skidmore is no longer viable after Miles. Miles specifically limited the remedy available under Gaudet to longshoremen killed within state territorial waters. Miles, 498 U.S. at 31, 111 S.Ct. at 325. Skidmore relied exclusively on *535 the Supreme Court's decisions in Gaudet, and because the decedent in Skidmore was not a longshoreman, the Court finds that Skidmore is no longer authority for the proposition that dependents may recover loss-of-society damages under general maritime law.
Indeed, the trend within the Fifth Circuit indicates that loss-of-society damages are recoverable only in cases that fit the fact pattern of Gaudet or Alvez, namely, where a longshoreman is killed or injured within state territorial waters. See, e.g., Randall v. Chevron U.S.A., 13 F.3d 888, 903-04 (5th Cir. 1994) (permitting the dependents of a longshoreman to recover loss-of-society damages). Accordingly, it would be anomalous for this Court to allow loss-of-society damages in a case such as this, which involves a nonseaman killed while operating a fishing boat in state territorial waters. The Court therefore holds that the dependents of a nonseaman killed while operating a fishing boat within state territorial waters may not recover damages for loss of society under general maritime law.
The Court recognizes that the conclusion reached here implies that the dependency requirement for recovering loss-of-society damages under general maritime law is no longer viable. See Randall, 13 F.3d at 903; Miles v. Melrose, 882 F.2d 976, 988-89 (5th Cir.1989), aff'd sub nom. Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990); Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455, 460 (5th Cir.1985), cert. denied, 475 U.S. 1019, 106 S.Ct. 1205, 89 L.Ed.2d 318 (1986); Truehart v. Blandon, 672 F.Supp. 929, 938 (E.D.La.1987). However, the Supreme Court's concern for uniformity in maritime law in Miles and the trend within the Fifth Circuit compel this result. See, e.g., Haltom, 771 F.Supp. at 180-81 (the Supreme Court in Miles did not distinguish between dependents and nondependents when it denied recovery for loss of society).[9]
Ignoring the trend within the Fifth Circuit, plaintiff relies on Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084 (2d Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1060, 127 L.Ed.2d 380 (1994), for her contention that the dependents of nonseamen killed in state territorial waters may recover damages for loss of society under general maritime law. Wahlstrom, however, is unhelpful to plaintiff in this case. The methodology employed by the Wahlstrom court actually supports the conclusion reached here. Critical to the Second Circuit's conclusion in Wahlstrom was the assertion that permitting nondependents to recover for loss-of-society would impermissibly undermine the uniformity requirement of maritime law by "expand[ing] the class of beneficiaries of nonseamen who may recover for loss of society in the aftermath of the Supreme Court's denial of such recovery [in Miles] to the beneficiaries of seamen." 4 F.3d at 1092. Therefore, Wahlstrom suggests that in determining whether to award loss-of-society damages under general maritime law, courts must look to the recovery available under the DOHSA and the Jones Act so that recovery for nonpecuniary damages is uniform for the DOHSA, the Jones Act, and general maritime law.[10] Accordingly, because the Fifth Circuit has specifically declined to permit dependents of Jones Act seamen to recover loss-of-society damages, Michel, 957 F.2d at 191; Murray, 958 F.2d at 129-32; and because the dependents of persons who sue under the *536 DOHSA cannot recover nonpecuniary damages such as loss of society, Higginbotham, 436 U.S. at 622-26, 98 S.Ct. at 2013-16, this Court would frustrate the goal of uniformity by permitting dependents of a nonseaman to recover damages that the beneficiaries of seamen the wards of admiralty cannot recover.
The Ninth Circuit has disagreed with the Second Circuit's decision in Wahlstrom, asserting that Wahlstrom's reading of the uniformity requirement in Miles is too broad. Sutton v. Earles, 26 F.3d 903, 916-17 (9th Cir.1994). In Sutton, five persons were killed and four persons injured when a pleasure craft collided with a buoy in California territorial waters. Id., 26 F.3d at 906. The district court awarded the beneficiaries of the decedents damages for loss of society regardless of whether the beneficiaries were dependent on the decedents. Id., 26 F.3d at 914, 920. The Ninth Circuit affirmed this portion of the district court's decision, concluding that the dependency requirement for recovering loss-of-society damages is inconsistent with the humanitarian policy of providing special solicitude to those that come within the admiralty jurisdiction of the federal courts. Id., 26 F.3d at 919-20. The court reasoned: "The fact that the death of a seaman in territorial waters leads to recovery only of pecuniary damages is dictated by statute, Miles, 498 U.S. at 32-33, 111 S.Ct. at 325-26, and that statute does not limit recoveries for the deaths of non-seamen." Id., 26 F.3d at 917; see also id., 26 F.3d at 916 ("[T]he results in Higginbotham and Miles were clearly dictated by statute, and neither statute limits the damages recoverable for death in territorial waters that were authorized by Gaudet.").
The Court declines to follow Sutton because it is inconsistent with the Supreme Court's decision in Miles and with the trend within the Fifth Circuit toward eliminating loss-of-society damages under general maritime law.[11] To begin with, Sutton creates a non-uniform rule of recovery within the Ninth Circuit, precisely what the Supreme Court counseled against in Miles. Just one year ago, in Smith v. Trinidad, 992 F.2d 996, 996 (9th Cir.1993), the Ninth Circuit held that the uniformity requirement in Miles compelled the conclusion that the spouse of an injured seaman may not recover loss-of-society damages under general maritime law. See also Newhouse v. United States, 844 F.Supp. 1389, 1393-94 (D.Nev.1994) (beneficiaries of nonseaman killed in state territorial waters cannot recover nonpecuniary damages such as future economic loss in a survival action because Miles "has limited the availability of damages under a Moragne wrongful death action to those that reflect pecuniary losses."). Sutton therefore creates an anomaly within the Ninth Circuit: The beneficiaries of seamen traditionally the wards of admiralty cannot recover damages that beneficiaries of nonseamen are permitted to recover. The Supreme Court's decision in Miles was designed to eliminate these kinds of inconsistent results. Miles, 498 U.S. at 30-33, 111 S.Ct. at 324-26.[12] Finally, the *537 trend within the Fifth Circuit is clearly in the direction of eliminating loss of society as an element of damages in all maritime cases. Therefore, in the interest of uniformity, this Court follows that trend and declines to follow Sutton.
The Court also recognizes that lower courts in other circuits have come to a different conclusion than that reached in this case, but the Court finds those decisions inconsistent with the Supreme Court's decision in Miles and the trend within the Fifth Circuit. In Emery v. Rock Island Boatworks, Inc., 847 F.Supp. 114, 116-18 (C.D.Ill.1994), a district court permitted the spouse of an injured passenger to recover damages for loss of society in a negligence action against the owner of the boat.[13] The Emery court reasoned that "[i]n situations ... where the plaintiff does not have a cause of action available against the defendant under the DOHSA or the Jones Act, the concerns for uniformity, as expressed in Miles and Higginbotham, simply do not exist." Id. at 118. The court held that the uniformity requirement of Miles only applied in cases where the statutory and general maritime law causes of action overlap. Id. at 117. Emery was followed by Schumacher v. Cooper, 850 F.Supp. 438, 453-54 (D.S.C.1994), where the dependents of a nonseaman were permitted to recover loss-of-society damages in a personal injury negligence action brought under general maritime law. This Court finds that Emery and Schumacher read the Supreme Court's decision in Miles much too narrowly. At the very least, Miles represents a decisive endorsement of the importance of achieving uniformity in maritime law, especially in cases involving the type of damages recoverable by beneficiaries who come within the admiralty jurisdiction of the federal courts. Therefore this Court declines to follow the holdings of Emery and Schumacher.
In In re Morehead Marine, 844 F.Supp. 1193, 1197 (S.D.Ohio 1994), the court permitted survivors of nonseamen killed in state territorial waters to recover nonpecuniary damages, such as loss of society, under general maritime law. The court offered two reasons for its decision. First, the court reasoned that permitting recovery of nonpecuniary damages furthers the "`humanitarian policy of the maritime law to show "special solicitude" for those who are injured within its jurisdiction.'" Id. Next, the court asserted that because no federal statute expressly limited recovery to pecuniary damages, the plaintiffs could recover nonpecuniary damages. Id.; see also Mussa v. Cleveland Tankers, 802 F.Supp. 84, 86-87 (E.D.Mich.1992) (limiting Miles to its facts).
The Court finds that the decision in Morehead Marine is premised on an overbroad conception of "special solicitude."[14]Miles *538 makes it clear that persons who sue under general maritime law receive no more and no less "solicitude" than those that come within the scope of the DOHSA or the Jones Act. Miles, 498 U.S. at 30-33, 111 S.Ct. at 324-26. More importantly, however, Morehead Marine's examination of the issue is inconsistent with the analytical framework set out in Miles. Miles teaches that in determining whether to award loss-of-society damages, courts must look to the DOHSA and the Jones Act for guidance so that recovery for nonpecuniary damages remains uniform across maritime law. 498 U.S. at 30-33, 111 S.Ct. at 324-26. The court in Morehead Marine failed to do so. This Court therefore disagrees with the analysis in Morehead Marine.
Finally, in Powers v. Bayliner Marine Corp., 855 F.Supp. 199, 202 (W.D.Mich.1994); Petition of Cleveland Tankers, Inc., 843 F.Supp. 1157, 1158-60 (E.D.Mich.1994); and Sugden v. Puget Sound Tug & Barge Co., 796 F.Supp. 455, 457 (W.D.Wash.1992), the courts held that loss-of-society damages are recoverable under general maritime law in an action against a non-employer. Because the plaintiffs had sued a non-employer, the courts concluded that the uniformity requirement expressed in Miles (which involved a claim against a Jones Act employer) was inapplicable. Id. However, Powers, Cleveland Tankers, and Sugden read Miles too narrowly. The concern in Miles for uniformity in maritime law must apply with equal force in cases involving non-employers, otherwise Miles' concern for uniformity would be hollow. Indeed, district courts in this circuit have already expressly held that the uniformity requirement in Miles compels the conclusion that loss-of-society damages are not available in a general maritime action brought against a non-employer. Ellender, 821 F.Supp. at 1136-37; see also Carnival Cruise Lines, 813 F.Supp. at 1187 ("Allowing plaintiffs to recover loss of society damages against [a third party manufacturer] when they would not otherwise be recoverable against [the injured seaman's employer] would strike a blow to the policy Miles sought to establish.").
CONCLUSION
The Court is mindful of the traditional "twin aims" of maritime law achieving uniformity and providing "special solicitude" to those that come within the admiralty jurisdiction of the federal courts. See Miles, 882 F.2d at 987; Truehart, 672 F.Supp. at 937. However, after the Supreme Court's decision in Miles, uniformity appears to carry the day in federal maritime law. The trend within the Fifth Circuit is toward refusing to award loss-of-society damages in cases brought under general maritime law. Consistent with this trend, and considering the Fifth Circuit's clear instructions to this Court in Walker, 995 F.2d at 82, this Court holds that loss-of-society damages are unavailable in a general maritime wrongful death action involving the operator of a fishing boat within state territorial waters.
Accordingly,
IT IS THE ORDER OF THE COURT that the motion of plaintiff, Sharon Joyce Walker, individually and on behalf of her minor children, Jason Dwayne Trahan and Josh Michael Trahan, to modify and/or amend the judgment entered on May 7, 1992, by assessing 20 percent of the fault of the accident which killed Wade J. Trahan, the plaintiff's husband, against defendant, Armogene Braus, be, and the same is hereby GRANTED.
IT IS THE FURTHER ORDER OF THE COURT that the damages of $32,000.00 ($160,000.00 × 20%) awarded to plaintiff, Sharon Joyce Walker, individually and on behalf of her minor children, Jason Dwayne Trahan and Josh Michael Trahan, for past and future loss of society ($3,520.00 + $28,480.00 = $32,000), be, and the same are hereby *539 STRICKEN from the Court's judgment of May 7, 1992. (Doc. 188).
IT IS THE FURTHER ORDER OF THE COURT that an amended judgment be entered in favor of plaintiff, Sharon Joyce Walker, individually and on behalf of her minor children, Jason Dwayne Trahan, and Josh Michael Trahan, and against defendant, Armogene Braus, in the amount of $18,620.24, plus prejudgment interest from the date of judicial demand until the date of the original judgment, May 7, 1992, at the rate set forth in La.Civ.Code art. 2924, plus interest from the date of the original judgment, May 7, 1992, until paid at the rate set forth in 28 U.S.C. § 1961.
IT IS THE FURTHER ORDER OF THE COURT that an amended judgment be entered in favor of plaintiff, Sharon Joyce Walker, individually and on behalf of her minor children, Jason Dwayne Trahan, and Josh Michael Trahan, and against defendant, Armogene Braus, in the amount of $54,322.51, plus interest from the date of the original judgment, May 7, 1992, until paid at the rate set forth in 28 U.S.C. § 1961.
The Court will prepare an amended judgment in conformity with this opinion.
NOTES
[1] The Braus vessel was planing on top of the water, as opposed to pushing through the water. In order to be "on top," the Braus vessel had to be travelling at least twenty miles per hour. The evidence revealed that Trahan's fishing boat was travelling at a high rate of speed and trailing white water.
[2] Braus counterclaimed to recover damages for damage to his boat against the estate of Wade Trahan and Trahan's insurer, State Farm Fire and Casualty Company. None of the issues raised in the counterclaim are presently before the Court.
[3] 33 U.S.C. § 2005 provides: "Every vessel shall at all times maintain a proper lookout by sight and hearing as well as by all available means appropriate to the circumstances and conditions so as to make a full appraisal of the situation and the risk of collision."
[4] 33 U.S.C. § 2009(f) provides: "A vessel nearing a bend or an area of a narrow channel or fairway where other vessels may be obscured by an intervening obstruction shall navigate with particular alertness and caution and shall sound the appropriate signal as prescribed in 34(e) [33 U.S.C. § 2034]." Section 2034(e) also provides: "[V]essels nearing a bend or an area of a channel or fairway where other vessels may be obscured by an intervening obstruction shall sound one prolonged blast."
[5] The Fifth Circuit has recently stated that loss of consortium and loss of society damages are synonymous. Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119, 122 n. 4 (5th Cir.1994); see also Skidmore v. Grueninger, 506 F.2d 716, 728 n. 10 (5th Cir.1975). For purposes of clarity, this Court will use the term loss of society.
[6] One court has referred to Gaudet in the following terms: "[Gaudet] has therefore been condemned to a kind of legal limbo: limited to its facts, inapplicable on its facts, yet not overruled." Miller v. American President Lines, Ltd., 989 F.2d 1450, 1459 (6th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 304, 126 L.Ed.2d 252 (1993). Another court has held that after Miles, "Gaudet damages are no longer recoverable by the survivors of longshore workers injured or killed in territorial waters." Smallwood v. American Trading & Transp. Co., 839 F.Supp. 1377, 1385 (N.D.Cal.1993).
[7] Prior to Miles, the Supreme Court and the Fifth Circuit appeared to take a different view. In Alvez, the Supreme Court stated: "[T]he liability schemes incorporated in [the] DOHSA and the Jones Act should not be accorded overwhelming analogical weight in formulating remedies under general maritime law." 446 U.S. at 283, 100 S.Ct. at 1678; accord Cruz v. Hendy Int'l Co., 638 F.2d 719, 725 (5th Cir.1981); see also Hlodan v. Ohio Barge Line, Inc., 611 F.2d 71, 75 (5th Cir. 1980) (the DOHSA and the Jones Act do not limit the damages recoverable in a Moragne action); Skidmore, 506 F.2d at 728 (awarding loss-of-society damages and quoting language from Gaudet which suggests that damage awards ought to be guided by the "humanitarian policy" of general maritime law).
[8] Other recent district court decisions which have refused to permit recovery for loss of society include: Reynolds v. Zapata Off-Shore Co., 796 F.Supp. 1015, 1016 (S.D.Tex.1992); Haltom v. Lykes Bros. Steamship Co., Inc., 771 F.Supp. 179, 180-81 (E.D.Tex.1991) (dependent widow of seaman); Duplantis v. Texaco, Inc., 771 F.Supp. 787, 788 (E.D.La.1991) (seaman's wife cannot recover loss-of-consortium damages under general maritime law); Cater v. Placid Oil Co., 760 F.Supp. 568, 569-71 (E.D.La.1991) (spouse of injured Jones Act seaman cannot recover loss-of-consortium damages under general maritime law); Turley v. Co-Mar Offshore Marine Corp., 766 F.Supp. 501, 502 (E.D.La.1991) (wife of Jones Act seaman); West v. Zapata Gulf Marine Corp., 766 F.Supp. 502, 502-03 (E.D.La.1991) (loss-of-consortium damages unavailable in personal injury action brought under general maritime law); Breland v. Western Oceanic, Inc., 755 F.Supp. 718, 719 (W.D.La.1991) (wife and children of injured seaman); Anglada v. Tidewater, Inc., 752 F.Supp. 722, 723-25 (E.D.La.1990) (Feldman, J.) ("[L]oss of society or consortium damages must be rejected in the context of personal injury and wrongful death unseaworthiness claims.").
[9] Of course, the dependency requirement remains in cases involving longshoremen killed or injured within state territorial waters. Gaudet, 414 U.S. at 577-83, 94 S.Ct. at 811-14; Alvez, 446 U.S. at 280-86, 100 S.Ct. at 1677-80; Randall, 13 F.3d at 903-04.
[10] This has certainly been the position of the Fifth Circuit in cases involving nondependents who wish to recover loss-of-society damages. The Fifth Circuit's decision in Sistrunk is illustrative:
If this court were to hold that the parents could recover for loss of society in this case, we should create vagaries in admiralty jurisdiction that Moragne was designed to destroy: first, where the death occurs in territorial waters, parents like those in this case could recover for loss of society on the basis of unseaworthiness under Moragne but not for negligence under the Jones Act, [citation]; and second, and even more anomalous, parents similarly situated to those in this case would have a cause of action for loss of society if the death occurred in territorial waters but not if the death occurred on the high seas, see DOHSA [citation]....
770 F.2d at 459.
[11] The Sutton court did not refer at all to the Fifth Circuit's decision in Walker, 995 F.2d 77.
[12] The Sutton court side-stepped the uniformity requirement of Miles by asserting that "[w]e do not consider ourselves free to give such weight to the interest of uniformity, in light of Gaudet's explicit acknowledgement that it was creating a non-uniform category of damages in territorial waters, Gaudet, 414 U.S. at 588 n. 22, 94 S.Ct. at 816 n. 22, and the acknowledgements of non-uniformity in Higginbotham, 436 U.S. at 624, 98 S.Ct. at 2014," (fn. omitted). This Court disagrees with this analysis. To begin with Higginbotham allegedly posed only a "minor" threat to uniformity. 436 U.S. at 624, 98 S.Ct. at 2014. By contrast, Sutton creates a significant discrepancy within the Ninth Circuit by permitting the beneficiaries of nonseamen to recover damages that the beneficiaries of seamen cannot recover. Finally, even assuming Gaudet and Higginbotham stand for the proposition that non-uniform categories of damages are acceptable in federal maritime law, the Supreme Court's recent concern in Miles with creating uniform categories of damages should serve as the proper guide for lower courts. In fact, a district court within the Ninth Circuit concluded that Miles' limitation on recovering non-pecuniary damages is not "limited to those actions involving seamen." Newhouse, 844 F.Supp. at 1394. Otherwise, "such a holding would lead to the anomalous result that seamen those who are entitled the greatest protection under maritime law would be afforded a lesser degree of protection than non-seamen." Id.
The Sutton court also stated that "[w]e ... do not consider controlling the statement in Miles that `the holding of Gaudet ... applies only to longshoremen.' 498 U.S. at 39, 111 S.Ct. at 328. The point that the court was making was that Gaudet does not apply to seamen." 26 F.3d at 917 n. 17. This restrictive reading of Miles's limitation of Gaudet is novel and inconsistent with decisions within the Second, Fifth, and Sixth Circuits as well as a decision by a district court within the Ninth Circuit itself. See Wahlstrom, 4 F.3d at 1091-92; Nichols, 17 F.3d at 122-23; Randall, 13 F.3d at 902-03; Murray, 958 F.2d at 130-31; Miller, 989 F.2d at 1459; Smallwood, 839 F.Supp. at 1385.
[13] The Emery court aptly characterized the confusion in this area of maritime law, and stated:
In researching this issue, the Court has uncovered a labyrinth of factual scenarios and legal theories from various courts yielding different results on whether loss of society claims may be brought under admiralty law. Some courts have allowed and some courts have precluded such claims under admiralty law depending on the legal theory and the specific facts alleged in the case. For example, some courts have distinguished admiralty claims brought under statutory as opposed to common law theories, brought by seamen as opposed to longshoremen, brought by neither seamen nor longshoremen, brought against employers as opposed to third parties, and brought as a result of injuries occurring in territorial waters as opposed to on the high seas. The significance of these various distinctions have led to courts reaching different results on the issue of awarding loss of society damages under admiralty law.
847 F.Supp. at 116.
[14] In addition, none of the cases relied upon by the Morehead Marine court are authority for the proposition that dependents of persons killed in state territorial waters may recover loss-of-society damages. The remedy available under Gaudet has been limited to longshoremen killed in state territorial waters, Miles, 498 U.S. at 31, 111 S.Ct. at 325, and the decedent in Morehead Marine was not a longshoreman. Moreover, in Complaint of Cambria Steamship Co., 505 F.2d 517 (6th Cir.1974), cert. denied, 420 U.S. 975, 95 S.Ct. 1399, 43 L.Ed.2d 655 (1975), Daughenbaugh v. Bethlehem Steel Corp., 891 F.2d 1199 (6th Cir.1989), and Garner v. Dravo Basic Materials Co., 768 F.Supp. 192 (S.D.W.Va.1991), the courts did not even address the question whether loss-of-society damages are recoverable under general maritime law. In Cambria Steamship and Daughenbaugh, the courts merely recited the broad "humanitarian policy" language found in Moragne and Alvez. Cambria Steamship, 505 F.2d at 522; Daughenbaugh, 891 F.2d at 1204. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261712/ | 861 F.Supp. 340 (1994)
Robert N. COHEN, Plaintiff,
v.
Richard G. AUSTIN, administrator, General Services Administration, Defendant.
Civ. A. No. 92-CV-5623.
United States District Court, E.D. Pennsylvania.
August 25, 1994.
*341 Dennis L. Friedman, Philadelphia, PA, for plaintiff.
David R. Hoffman, James G. Sheehan, Lois W. Davis, U.S. Attys. Office, Philadelphia, PA, for defendant.
MEMORANDUM AND ORDER
JOYNER, District Judge.
Before the Court are the cross-motions for summary judgment of the parties pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. This case involves an action filed by plaintiff, Robert N. Cohen, who was removed from his position as a GS-12 contract specialist with defendant, General Services Administration. The case has a lengthy procedural history, which we have already fully discussed in a previous opinion. See Cohen v. Austin, 833 F.Supp. 512 (E.D.Pa.1993) (denying *342 an earlier motion for summary judgment filed by defendant). Suffice it to say that plaintiff has filed suit in this Court alleging violations of Title VII, 42 U.S.C. § 2000e-16(c), in that his removal and denial of his within-grade increase were prompted by religious discrimination, and that his removal was based on reprisal for engaging in prior protected activities. Pursuant to the Civil Service Reform Act, 5 U.S.C. § 7701 et seq., plaintiff also seeks review of the decision of the Merit Systems Protection Board ("MSPB"), which affirmed defendant's actions of removing him and denying his within-grade increase. Finally, plaintiff seeks review of the decision of the Equal Employment Opportunity Commission ("E.E.O.C."), which affirmed the MSPB's findings of no discrimination and reprisal.
Standards
A. Standard for a motion for summary judgment
In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The court is required to determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In making this determination, all reasonable inferences must be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 256, 106 S.Ct. at 2512. While the movant bears the initial burden of demonstrating an absence of genuine issues of material fact, the nonmovant must then establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir.1990), cert. denied, 499 U.S. 921, 111 S.Ct. 1313, 113 L.Ed.2d 246 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)).
In cases where the parties have filed cross-motions for summary judgment, each side essentially contends that no issue of material fact exists from its perspective. United States v. Hall, 730 F.Supp. 646, 648 (M.D.Pa. 1990). The court must, therefore, consider each motion for summary judgment separately. Id. Nor do the standards under which the court grants or denies summary judgment change because cross-motions are filed. Id. Each party still bears the initial burden of establishing a lack of genuine issues of material fact. Id. Such contradictory claims do not necessarily guarantee that if one party's motion is rejected, the other party's motion must be granted. See id. (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir.1968)).
B. Standards under the Civil Service Reform Act
This Court has jurisdiction to hear plaintiff's claims because it is a "mixed case" of both discrimination and non-discrimination claims. Kean v. Stone, 926 F.2d 276 (3rd Cir.1991); Gollis v. Garrett, 819 F.Supp. 446, 449 (E.D.Pa.1993); Mayo v. Edwards, 562 F.Supp. 907, 908 (D.D.C.1983), aff'd, 741 F.2d 441 (D.C.Cir.1984). However, there are different standards of review with regard to mixed cases. For the non-discrimination claims (the denial of the within-grade increase and plaintiff's removal), the decision of the MSPB will be set aside if it is found to be: "1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2) obtained without procedures required by law, rule, or regulation having been followed; or 3) unsupported by substantial evidence." 5 U.S.C. § 7703(c) (1980); Murray v. United States Dept. of Justice, 821 F.Supp. 94, 108 (E.D.N.Y.1993), aff'd, 14 F.3d 591 (2nd Cir.1993). Review of the MSPB decision is limited solely to the administrative record.[1]Murray, 821 F.Supp. at 108; Diaz v. United States Postal Serv., 668 F.Supp. 88, 91 (D.P.R.1987), aff'd, 853 F.2d 5 (1st Cir.1988). Further, judicial review of the MSPB's decision is very narrow. Romero v. Department of the Army, 708 F.2d 1561, 1563 (10th Cir.1983). To determine if *343 the decision is supported by substantial evidence, courts inquire whether the decision is supported "`by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Tilley v. Frank, 728 F.Supp. 1293, 1296 (E.D.La.1990); Murray, 821 F.Supp. at 108. While the evidence need not be unequivocal, there must be more than a mere scintilla of evidence which must reasonably support the MSPB's findings. Henley v. United States, 379 F.Supp. 1044, 1049 (E.D.Pa.1974). Under the arbitrary and capricious standard, courts will defer to the MSPB decision "unless the penalty is so harsh or disproportionate to the offense as to be an abuse of discretion." Tilley, 728 F.Supp. at 1297. Reviewing courts should not generally inquire into the wisdom of the agency's personnel decisions or substitute its own judgment for that of the agency when considering personnel decisions because such decisions are usually within the competence and discretion of the executive officials. Diaz, 668 F.Supp. at 91 (citations omitted).
With regard to the discrimination claims, however, plaintiff is entitled to de novo review. 5 U.S.C. § 7703(c)(3) (1980); Rana v. United States, 812 F.2d 887, 890 (4th Cir. 1987). Thus, plaintiff is entitled to a review of the formal record as well as any new evidence that is presented to this Court. Rana, 812 F.2d at 890; Hodgson v. Department of the Air Force, 750 F.Supp. 1037, 1040 (D.Colo.1990), aff'd, 999 F.2d 547 (10th Cir.1993).
Discussion
I. Review of the MSPB decision
Before addressing plaintiff's arguments, a brief discussion about performance standards is warranted. As a GS-12 contract specialist working for a governmental agency, plaintiff was bound by a set of performance standards which the agency used in evaluating his performance. See Wilson v. Department of Health and Human Serv., 770 F.2d 1048, 1050-1053 (Fed.Cir.1985) (discussing performance appraisal system for federal employees). Plaintiff's performance standards were divided into five critical elements, each of which represented different tasks to be performed by plaintiff. For instance, critical element number one states "Analyzes requirements and plans procurements. Includes the following tasks: Reviews procurement requests ... Identifies and resolves deficiencies in scope of work and specifications. Performs industry analysis. Develops the procurement plan." For each critical element, there are standards "which set forth the degree of proficiency necessary to achieve a given rating (e.g., minimally satisfactory, satisfactory, or outstanding)." Wilson, 770 F.2d at 1050. The purpose of these standards is "to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria ... related to the job in question for each employee or position under the system." 5 U.S.C. § 4302(b)(1) (1977 & Supp.1994).
A. Different performance standards
Plaintiff first argues that he is entitled to summary judgment because different performance standards were imposed on him than were imposed on other GS-12 contract specialists. Essentially, plaintiff argues that the agency action in providing him with different standards is arbitrary and capricious, that the MSPB erred by not considering this argument, and as such, the decision below is not supported by substantial evidence. However, plaintiff's first argument is without merit.
In analyzing this issue, we will only consider plaintiff's argument with regard to critical element number two of his performance standards. In so doing, we note that to sustain defendant's action, it only needs to be shown that plaintiff's performance was unacceptable with regard to one critical element. Robinson v. Department of Army, 50 M.S.P.R. 412, 421 (1991) (citing Wilson v. Department of the Navy, 29 M.S.P.R. 6, 8 (1985)). Since Administrative Judge Squire and the MSPB ultimately affirmed defendant's actions by concluding that plaintiff had failed in his performance only with regard to critical element number two, we only need to consider that critical element.
It is clear from the record that plaintiff received his initial set of performance standards on September 22, 1988. These standards set out the expected performance for *344 all GS-12 contract specialists within the branch. Critical element two states as follows: "Develops and issues solicitations. Includes the following tasks: Assembles and issues solicitation packages. Identifies exceptions or changes needed in standard contract provisions. Selects appropriate contract type. Coordinates socioeconomic factors with appropriate activities." Under the standards of expected performance for critical element number two, the following is stated:
Solicitations are complete and conform to requirements of the FAR [Federal Acquisition Regulations] and GSAR [General Services Acquisition Regulations]. Protests or audits do not later reveal defects in the solicitation package such that the package would not have been acceptable if the defects had been identified earlier. Solicitations are distributed to a sufficient number of prospective bidders to ensure competition. When possible, solicitations are left open longer than the 30-day minimum in order to increase competition. Procurements do not have to be re-solicited due to insufficient competition.Supports socioeconomic programs by using 8A contracts when practical.Procurements not set aside for small business are adequately justified when under management or third party review.Solicitations are completed within established time frames.
Apparently, when plaintiff received his "warning regarding unacceptable performance" letter on October 21, 1988, it included a set of revised performance standards to which plaintiff was held during his ninety day probationary performance improvement period. With regard to the second critical element, the following was included:
Expected performance: Solicitations are to be complete and in conformance with the FAR and GSAR. They are to be distributed to a sufficient number of prospective bidders so that they do not have to be resolicited. Protests or administrative audits should not reveal any major solicitation defects, which would render the solicitation package unacceptable. Solicitations are to be completed within established time frames allowing for award within an acceptable variance to the anticipated award date provided by the funding office. You are also expected to use 8(a) contracts when practical. Contracts not set aside for small business must be properly justified for the management. All documentation must be self supporting and understandable to third party review. Technical errors discovered in the solicitation should be resolved in one or two days (unless excusably delayed by parties outside of this office).
Marginally acceptable performance: Minimally acceptable performance would be having the solicitation in for review (approximately) 105 days before award, in order to guarantee award on the anticipated target award date. There would be no mistakes that could result in a solicitation/award being nullified upon protest. The solicitation must be open at least 30 days. Technical errors should be resolved within five days. At the minimum, you should notify the cognzant [sic] engineer of any technical problems immediately and resolve the problem later.
Plaintiff bases much of his argument on the fact that defendant did not provide any documentary evidence regarding the performance standards of other GS-12 contract specialists within the branch in answer to his interrogatories. In the proceedings below, Administrative Judge Squire granted plaintiff's motion for sanctions for defendant's refusal to comply with the discovery requests, and as such, allowed plaintiff to take a negative inference from defendant's actions. Plaintiff now argues that if the performance standards of other GS-12's had been provided, they would have been different than the performance standards actually imposed on plaintiff. However, the evidence in the record does not support this conclusion, despite the negative inference.[2]
*345 Michael Grieco, one of plaintiff's supervisors, testified that when he gave plaintiff the October 21st warning letter, it included a performance improvement plan in it, which, included, among other things, the standards set out for marginally acceptable performance. Prior to that, the performance standards had only set out the standards for expected performance, which plaintiff was required to meet for satisfactory performance. R. 1712-13, 1736. In addition, the performance standards and critical elements that plaintiff received in October 1988 were identical to those of all other GS-12's in the branch, and all GS-12's received the revised performance standards within that same time frame. R. 196-97. He further testified that plaintiff's original performance standards were identical for all GS-12's, and that they were rewritten for all GS-12's sometime in the summer of 1988. R. 123, 1633-35. Bruce Zalut, another one of plaintiff's supervisors, also testified that the performance standards issued in September 1988 were identical for all of the GS-12's in the branch, and were rewritten because the Employee Relations Branch required them to be standardized. R. 2167-68. Finally, Louis Amorosi, another GS-12 employed by defendant, testified that his performance standards appeared to be the same as those received by plaintiff in September 1988. R. 995-97.
While the MSPB did not consider whether plaintiff's performance standards were different, and Judge Squire did not consider the negative inferences, we find there has been no prejudice to plaintiff because the above evidence shows that plaintiff's performance standards were identical to those of all other GS-12's. Aside from the negative inference, plaintiff has failed to produce any evidence that his performance standards were different from those of other GS-12's. Although we acknowledge that plaintiff could not produce any documentary evidence of this, he still could have produced some testimony by witnesses to rebut defendant's evidence. As stated by the Third Circuit, when drawing a negative inference, consideration of all evidence to the contrary must be made. Kline v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, 877 F.2d 1175, 1180 (3rd Cir.1989). Thus, even if Judge Squire had considered the negative inference, she would have had to weigh it against the above evidence. Given that defendant has presented evidence on this issue, and plaintiff has not produced any evidence, we cannot say Judge Squire's determination that the standards were the same is not supported by substantial evidence. As such, plaintiff's first argument fails. See e.g. Luscri v. Department of the Army, 39 M.S.P.R. 482, 492 (1989) (appellant's mere assertion that his performance was not acceptable was insufficient to rebut substantial evidence presented by agency through testimony even though agency presented no documentary evidence of such performance).
B. Performance standards are unreasonable
Plaintiff next argues that the performance standards to which he was held are inherently unreasonable because the standards for marginally acceptable performance are more difficult to attain than those for expected performance. For the following reasons, we agree with plaintiff.
As stated previously, agencies are required to establish performance appraisal systems that allow an accurate evaluation of one's job performance based on objective criteria to the maximum extent feasible. Rogers v. Department of Defense Dependents Sch., 814 F.2d 1549, 1553 (Fed.Cir.1987) (citing 5 U.S.C. § 4302(b)(1) (1982)). When an employee challenges the reasonableness of the performance standards, we are entitled to make an independent determination of whether the standards comply with the above statute. Id. In order to be valid under the statute, the standards should be "`sufficiently objective and precise in the sense that most people understand what they mean and what they require ...'" Id. (citations omitted).
In Williams v. Department of Health and Human Serv., 30 M.S.P.R. 217 (1986), the court rejected the performance standards imposed on plaintiff, a secretary for the Food and Drug Administration, on the basis that the performance standards as written were unclear, and because the performance standard *346 for minimally satisfactory performance appeared to require a higher level of performance than the standard for fully satisfactory performance. Finding that such standards were not reasonable, the court stated that "performance standards must be specific enough to provide a firm benchmark toward which the employee must aim his performance not an elusive goal which the agency at its pleasure may find the employee met or failed to meet." Id. at 219-20.
Likewise, in this case, plaintiff's performance standard for marginally acceptable performance appears to be more difficult to achieve than the standard for expected performance. First, although the standard for expected performance requires solicitations to be completed within established time frames so that they are awarded "within an acceptable variance to the anticipated award date," such is not the case under the standard for marginally acceptable performance. Rather, under this standard, plaintiff must turn in the solicitation for review within 105 days before award, "in order to guarantee award on the anticipated target award date." (emphasis added) Thus, under the marginally acceptable standard, plaintiff is held to a higher standard because the solicitation must be awarded on the target date whereas the expected performance standard allows for a variance from the anticipated date.
Second, under the expected performance standard, "protests or administrative audits should not reveal any major solicitation defects, which would render the solicitation package unacceptable." However, under the marginally acceptable standard, "there would be no mistakes that could result in a solicitation/award being nullified upon protest." Arguably, the latter is also more difficult to achieve than the former because the latter allows for no mistakes, whereas the standard for expected performance simply requires there to be no major mistakes or defects, thus apparently allowing for minor defects in the solicitation.
While the MSPB rejected this argument by plaintiff, we find its reasoning to be unsound. The MSPB stated:
although the "marginally acceptable" standard references performance that would "guarantee" an award on the anticipated target date, while the "expected performance" standard references performance that allows for an award "within an acceptable variance to the anticipated award date," the former standard pertains to submitting a solicitation for review, while the latter standard pertains to completed solicitations. Although the "marginally acceptable" standard's time frames are more specific, the additional specificity does not establish that it is harder to achieve than the less specific "expected performance" standard. For these reasons, we find that the "expected performance" standard is harder to achieve than the "marginally acceptable performance" standard, and the appellant's argument to the contrary is without merit.
Cohen v. General Serv. Admin., 53 M.S.P.R. 492, 500 (1992).
Given that the purpose of the marginally acceptable standard is to inform plaintiff about the minimum requirements of satisfactory work, see performance standards supra page 344, it defies logic that the standard would discuss what is acceptable for a solicitation submitted for review, but not explain what is minimally acceptable for a completed solicitation. Obviously, a solicitation for review is just a draft, whereas the completed solicitation is the final work product, and ultimately the work upon which plaintiff is judged. Thus, it is doubtful that the two standards refer to two different types of solicitations.
Even if the marginally acceptable performance standard refers to a solicitation for review as opposed to the final work product, the marginally acceptable standard is still harder to achieve. The language of the standard requires the solicitation to be submitted within the time frame in order to guarantee award on the anticipated target award date. Thus, whether the standard refers to a solicitation for review is not the issue because either way, the end result is that the solicitation submitted must be guaranteed to be awarded on the target date, whereas completed awards need only meet an acceptable variance of the target date. Thus, MSPB's conclusion that the marginally acceptable standard is not harder to meet is erroneous. *347 As such, because the standards are not clearly written and they appear to be more difficult to achieve at the marginally acceptable level, the performance standards as written are unreasonable.
C. Performance standards are absolute
Plaintiff also argues that the performance standards are invalid because they are impermissibly absolute. An absolute performance standard is one that allows for a rating of unsatisfactory performance based on a single incident of poor performance. Smith v. Department of Veteran Affairs, 59 M.S.P.R. 340, 348 (1993). While absolute performance standards are allowed in cases where a single failure to meet the standard could result in breach of security, injury, death or great monetary loss, absent such circumstances, an absolute performance standard is invalid, and the establishment of such a standard constitutes an abuse of discretion. Id.; Callaway v. Department of the Army, 23 M.S.P.R. 592, 598 (1984).
In Smith, the court held that the performance standards imposed on a pharmacist were impermissibly absolute. The standards stated that a pharmacist: "Upon receipt of a medication order ... or prescription ..., always reviews and interprets physicians [sic] order to ensure the appropriate dosage and directions ... Always contacts physician when there is an incompatibility or improper dose ... Shows no hesitancy in contacting physicians." Id. at 348. The court reasoned that the standards were absolute because a failure to review and interpret a physician's order as provided, or to contact a physician for clarification on a single incident would result in an unsatisfactory rating under the performance standards. Id.
Similarly, in Sullivan v. Department of the Navy, 44 M.S.P.R. 646, 651-52 (1990), aff'd, 949 F.2d 403 (Fed.Cir.1991), the court found the standard that "all recurring reports are [to be] accurately prepared and submitted/received by the required dates" to be absolute. The court noted that there was no evidence that failure to meet the standard would cause death, injury, breach of security or great monetary loss to justify an absolute standard. While the court also acknowledged that an absolute standard is not fatally invalid if the position description, written instructions and agency clarify the standard so that the employee knows the standard is not applied in an absolute manner, the court held there was no evidence that the employee was aware of this in Sullivan.
In the present case, the performance standards imposed on plaintiff are absolute. First, the marginally acceptable performance standard, as stated above, requires plaintiff to guarantee award of the solicitation on the target date. Second, the marginally acceptable standard allows for "no mistakes that could result in a solicitation/award being nullified upon protest." Thus, under the marginally acceptable standard, if plaintiff failed to award the solicitation by the targeted award date, or if the solicitation contained errors, plaintiff's performance would be rated as unacceptable. Even under the standards for expected performance, there could not be any major solicitation defects which would render the solicitation package unacceptable. Given that a failure to meet these standards would result in a rating of unacceptable performance similar to the standards in Sullivan, the standards are absolute.
While the MSPB rejected plaintiff's argument that the standards were absolute, the MSPB made this determination by reasoning that plaintiff was fired for committing more than just one error. In so doing, the MSPB considered plaintiff's performance under the standards. Rather than looking at the standards in the abstract, the MSPB reasoned that when plaintiff failed to work on a certain solicitation package assigned by defendant, plaintiff committed several errors under the marginally acceptable performance standards, such as failing to have the solicitation in for review before 105 days, failing to guarantee award on the target date, failing to keep the solicitation open at least 30 days and failing to prevent mistakes that could have resulted in the award being nullified upon protest. Cohen v. General Serv. Admin., 53 M.S.P.R. 492, 501 (1992).
However, the MSPB's analysis is faulty because it does not address whether the standards are absolute. Determining whether *348 a standard is absolute and invalid is separate from determining whether plaintiff's conduct as measured by the performance standard is unacceptable. Callaway, 23 M.S.P.R. at 600. While plaintiff may have committed several errors under the standards, the number of errors cited by defendants is irrelevant to the question of whether the standards are absolute. If the standards were not absolute, they would have provided some guidelines to plaintiff as to how many mistakes could be made before his performance was unacceptable, such as stating how many solicitations could be submitted late. Rather, under the standards imposed, plaintiff's one failure in any of the tasks resulted in unacceptable performance.
From the record, we also find no evidence justifying the absolute standard or that plaintiff knew the standards were not imposed in an absolute manner. Indeed, Michael Grieco even testified that prior to giving plaintiff the October 1988 warning letter of unacceptable performance, which contained the standards imposed on plaintiff, plaintiff did not even know what marginally acceptable performance was supposed to be. R. 1713. As such, defendant abused its discretion in implementing the above performance standards. This, coupled with the fact that the standards are also unreasonable, requires us to reverse the MSPB's decision sustaining plaintiff's removal from his employment and denying his within-grade increase. See e.g. Eibel v. Department of the Navy, 857 F.2d 1439, 1444 (Fed.Cir.1988) (reversing MSPB's decision upholding appellant's removal based on invalid performance standards).
D. Performance standards are not objective
Although there is sufficient evidence to reverse plaintiff's removal and denial of the within-grade increase based on the above reasons, we also agree with plaintiff's argument that the performance standards are not entirely objective. While a performance standard is not invalid if it allows for some subjectivity by the reviewing official, it should be sufficiently objective for the employee to know what is expected of him, and to "provide the employee with a firm benchmark toward which to aim his performance, and not an elusive goal which the agency may find the employee met or failed to meet at its pleasure." O'Neal v. Department of the Army, 47 M.S.P.R. 433, 441 (1991); see also 5 U.S.C. § 4302(b)(1).
In O'Neal, the court held that the performance standards were not sufficiently objective where appellant's supervisor could not adequately explain how she determined the difference between acceptable and unacceptable performance with regard to a certain critical element. She noted the work would be unacceptable if it constantly had to be rewritten and acceptable if rewriting occurred "`once in a blue moon.'" Id. The court held the agency failed to present substantial evidence that it had apprised its employee of the standards against which she was measured in both practice and by its instructions.
In the present case, there seems to be some confusion over how plaintiff's supervisors arrived at performance ratings. Michael Grieco testified that with regard to the standards under which plaintiff was rated in September 1988, in order to receive a satisfactory rating, the employee would have to comply with the expected performance standard. R. 1673. To receive a two or a one rating (for marginally acceptable performance or unsatisfactory) would depend on how often the employee failed to meet the expected level of performance. Mr. Grieco estimated that if the employee failed to meet the standard seventy percent of the time, the employee would probably get a two or a one. R. 1674-75, 1677, 1686. However, Mr. Grieco admitted there were no written standards which established any level of performance other than expected performance. R. 1677. Further, he stated that with regard to critical element one, if the contract specialist "repeatedly" failed to meet the expected level of performance, he would get a two or a one, but he admitted there was no written standard indicating what "repeatedly" meant. R. 1677-78. Mr. Grieco also testified that the standards were revised so as to establish more precise standards in which to rate the employee, ie., such that the employee would be rated by the amount of times he met or *349 exceeded the expected level of performance. R. 124-25. Interestingly, he admitted that the performance standards to which plaintiff was held prior to September 1988 established criteria to receive a rating at the one, three and five levels, but the revised standards only established criteria to receive a performance rating of a three (satisfactory), R. 138, thus indicating the revised performance standards are actually less precise.
Mr. Newburg, another one of plaintiff's supervisors, testified that the new performance standards established in September 1988 were the performance standards under which plaintiff was evaluated up until the time of his removal. R. 837-8. When plaintiff was first given the new performance standards, Mr. Grieco was his immediate supervisor. R. 888. Although Mr. Newberg did not testify as to how he arrived at the performance ratings for critical element number two, his testimony indicates that he evaluated plaintiff subjectively with regard to other critical elements. For instance, when asked about his criticisms of plaintiff under critical element number one, Mr. Newburg was unable to specify any time frames set forth in that critical element for conducting negotiations, although he cited plaintiff for deficiencies in that area. See R. 873-79. However, he indicated the critical element "indirectly" set forth a time frame if one referred to FAR (Federal Acquisition Regulations) or GSAR (General Services Acquisition Regulations). Id. at 873-75. Upon further questioning, he indicated that those regulations only set forth "a reasonable time" to begin negotiations. Id. at 875. When questioned about other aspects of critical element one, Mr. Newburg was similarly evasive. Id. at 876.
Not only does it appear the standards were not applied objectively, but the standards themselves are not written in an objective manner. As plaintiff argues, there is nothing in the standards indicating to plaintiff when unacceptable performance occurs with regard to any errors made. For instance, although the standards state technical errors must be resolved within a certain number of days, does that mean a failure to resolve technical errors results in failure of the critical element? Likewise, the fact that it is difficult to discern exactly what is required of plaintiff shows the standards are not objective. "Under Chapter 43, employees will be protected from arbitrary treatment only if agencies establish objective performance standards that are `reasonable, sufficient in the circumstances to permit accurate measurements of the employee's performance, and adequate to inform the employees of what is necessary to achieve a satisfactory or acceptable rating.'" Eibel v. Department of the Navy, 857 F.2d 1439, 1444 (Fed. Cir.1988).
Based upon a review of the performance standards under critical element number two, and the above testimony, we find the standards are not sufficiently objective so as to provide plaintiff with a firm benchmark as to the difference between acceptable and unacceptable performance. It appears that Mr. Grieco evaluated plaintiff based on subjective criteria, i.e., whether the expected standard had been met based on some undefined amount of times. Further, the standards themselves do not adequately delineate the difference between acceptable and unacceptable performance or even marginal performance. As such, plaintiff's performance cannot be evaluated under these invalid standards, see O'Neal, 47 M.S.P.R. at 441, and the decision below must be reversed.
II. Title VII claims
Plaintiff alleges that defendant has violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., in that defendant discriminated against him because of his religion (Jewish) and retaliated against him by firing him when he asserted a claim of religious discrimination during the administrative proceeding. Plaintiff argues that the decisions of the MSPB and the Equal Employment Opportunity Commission (EEOC), which both held that plaintiff had not proved his claims of discrimination and reprisal, are not supported by substantial evidence and therefore asks this Court to *350 grant summary judgment in his favor on both of these claims.[3]
As a preliminary matter, we note that plaintiff's characterization of this Court's function is not altogether correct. Plaintiff acknowledges that this Court has de novo review of his Title VII claims. See Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). Despite this acknowledgement, plaintiff asks us to reverse the above decisions because they are not supported by substantial evidence, something we are clearly not entitled to do.
Our function in deciding the motion for summary judgment is to determine whether any issues of fact exist. While we are entitled to review the administrative record, we are also entitled to consider new evidence presented by the parties, and are not bound in any way by the determinations made by the MSPB and the EEOC below. Prince v. Commissioner, United States Immigration and Naturalization Serv., 713 F.Supp. 984, 990-91 n. 10 (E.D.Mich.1989) (de novo review entitles party to an independent assessment of the record without being limited to a review of the EEOC decision). Logically, we must look at all the evidence in a fresh light, and make our own determination of whether or not there is evidence of discrimination and reprisal. See Sperling v. United States, 515 F.2d 465, 484 (3rd Cir.1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976) (agency record can be reviewed de novo on a motion for summary judgment to determine whether any genuine issue of fact exists as to discrimination). While the ultimate outcome may be that we will reverse the EEOC and MSPB because we determine that evidence of discrimination and reprisal exist and plaintiff has proven his case (assuming for argument sake that is actually true), it will not be because we find the decisions to be unsupported in the administrative record by substantial evidence. That simply is not a determination that we are here to make. See e.g. Allen v. United States, 542 F.2d 176 (3rd Cir.1976) (district court erred in granting defendant's motion for summary judgment in employment discrimination case by concluding the administrative determination was neither arbitrary nor capricious, and was supported by substantial evidence); Leach v. Department of the Treasury, Civ.A. No. 86-1942, 1987 W.L. 7198, at 1 (E.D.Pa. Feb. 25, 1987) (court rejected defendant's argument that it was entitled to summary judgment on discrimination claims because MSPB's decision was not arbitrary and capricious since review of claims was de novo).
A. Religious discrimination
Plaintiff first argues that he is entitled to summary judgment because the overwhelming weight of the evidence shows that defendant discriminated against him on the basis of his religion, and therefore that it violated Title VII. There are two ways in which a Title VII claim can be proven. Equal Employment Opportunity Comm. v. Metal Serv. Co., 892 F.2d 341, 346 (3rd Cir.1990); Butler v. Elwyn Inst., 765 F.Supp. 243, 246 (E.D.Pa. 1991). First, a plaintiff may utilize the disparate impact theory. Under this theory, an employer applies a specific employment practice which appears neutral on its face, but causes a substantial adverse impact on a protected group. Metal Service, 892 F.2d at 346 (citing Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 646, 109 S.Ct. 2115, 2119, 104 L.Ed.2d 733 (1989)). Once the plaintiff shows there is a disparate impact, the employer must justify the employment practice as serving a legitimate business goal. Id. If the goal is found not to be legitimate, then there is a violation of Title VII. However, proof of intentional discrimination by the employer is not required under this theory. Id. at 346-47.
The other way in which discrimination can be established is by the disparate treatment theory. Under this theory, a violation occurs when there is evidence that an individual in a protected group has been singled out by the employer and treated less favorably than other similarly situated employees who are not in a protected group, on the basis of an impermissible criterion under Title VII. Id. *351 at 347 (citing International Bd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977)). Proof of the employer's discriminatory motive is vital under this theory. Id. Such intent can be proven by either direct or circumstantial evidence. Id. (citations omitted). Absent direct evidence of discrimination, plaintiffs can establish intent by meeting the following test as set out by the U.S. Supreme Court and adopted by this circuit. Weldon v. Kraft, Inc., 896 F.2d 793, 796-97 (3rd Cir.1990). The plaintiff must first show a prima facie[4] case of discrimination. Id. at 797; Lewis v. University of Pittsburgh, 725 F.2d 910, 914 (3rd Cir.1983), cert. denied, 469 U.S. 892, 105 S.Ct. 266, 83 L.Ed.2d 202 (1984) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Once this has been established, the burden then shifts to the employer to establish a legitimate reason for taking the alleged discriminatory action. Weldon, 896 F.2d at 797; Lewis, 725 F.2d at 914. Thereafter, the plaintiff must establish that the employer's nondiscriminatory reason was merely pretextual. Weldon, 896 F.2d at 797; Lewis, 725 F.2d at 914. To demonstrate pretext, plaintiff must show that the nondiscriminatory reason was merely a coverup for a discriminatory decision by "either directly ... persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered reason is unworthy of credence." Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 523 (3rd Cir. 1992), cert. denied, ___ U.S. ___, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993) (citations omitted).
Normally, to sustain a motion for summary judgment, the plaintiff need not meet this burden; rather, she must show that there is a genuine issue of material fact as to whether the employer intentionally discriminated against her. Weldon, 896 F.2d at 797. Likewise, in order for the defendant to prevail in a summary judgment motion, it must demonstrate that plaintiff is unable to show an intent to discriminate either directly or indirectly because the business reason given by the employer is subject to factual dispute. Hankins v. Temple Univ., 829 F.2d 437, 440-41 (3rd Cir.1987). A plaintiff who has made a prima facie showing of discrimination will prevail on a summary judgment motion if she can demonstrate that the employer's proffered explanation is not credible. Weldon, 896 F.2d at 797. However, we must also consider these rules in light of the fact that plaintiff has brought the motion for summary judgment in this case.
Reviewing the vast record, the evidence regarding religious discrimination is as follows. There is evidence of disparaging statements allegedly made by employees about plaintiff. For instance, one employee, Dyann Jacobs, testified that Rich Newburg stated that plaintiff was the "dumbest Jew he ever saw." R. 2248. She also testified that Rich Newburg referred to plaintiff's yarmulke as a "beanie." Id. On another occasion, employee Lydia Domeneche overheard Mr. Newburg state that plaintiff would be in "heaven" had he been present at an employee gathering where bagels and cream cheese were served. R. 1026. This statement was confirmed by another employee, Ana Garcia. R. 983-84. Finally, while not pertaining to anything plaintiff did while he was employed by defendant, there is evidence that Mr. Newburg made remarks about the "Jew judge" and plaintiff's lawyer during the prior administrative trials. R. 1039, 2187.
Although plaintiff testified that he was the only Jewish person in the Branch, Bruce Zalut, the supervisor who actually approved plaintiff's removal, is also Jewish. R. 406. Further, Rich Newburg testified that his grandfather was Jewish, and he is one-quarter Jewish. R. 952. He agreed, however, that there were no other Jewish people in the Branch. Id. Mr. Newburg denied making *352 any comments about plaintiff being a "dumb Jew" and wearing a "beanie," and attributed those comments to other employees in the Branch. R. 2092, 2098, 2119. Although he admitted making the comment about the cream cheese and bagels, he stated that he was simply referring to plaintiff's penchant for snacking. R. 2097. Finally, while he denied the specific comments about the administrative law judge and plaintiff's attorney, he felt there was some sort of "natural bias" because the administrative proceedings had a Jewish judge, and because plaintiff's attorney, Dennis Friedman, was acting overly comfortable during the proceeding. R. 2100, 2101-2114.
While this evidence alone hardly establishes a case for religious discrimination, plaintiff relies on the disparate treatment theory to show he was treated less favorably than other GS-12's in the branch. Indeed, plaintiff has presented evidence contained in hundreds of pages of transcript and exhibits which indicate that other employees in the branch, including Rich Newburg, made contracting errors similar or more substantial to the errors for which plaintiff was denied his within-grade increase and ultimately removed from his job. For instance, one project (apparently worked on by Mike Grieco) that plaintiff reviewed was delayed for one and a half years from the time the procurement request came in. R. 950-51. Plaintiff testified there was no documentation to explain the delay, yet he was required to explain in writing any delays over 30 days. R. 951. He found delays in many of the other contract specialists' files that he reviewed, yet there were no memos in any of the folders explaining the delays. With regard to Mike Grieco's project, plaintiff noted the advance procurement plan had only one signature on it which was a violation of FAR. R. 955-56. In the past, defendant had cited plaintiff for violating FAR, yet Mike Grieco did not get reprimanded nor did other employees in the Branch get reprimanded for various other errors.
Plaintiff also testified that many of the files that he was initially given to work on consisted of "stale" files, i.e., files that had been in the branch for several years that were only partially worked on by other GS-12 contract specialists. R. 2322-24. While plaintiff was expected to award at least one contract a month, many of the files he received had missing documents. R. 849, 776. Assuming this to be true, it would be quite difficult for plaintiff to meet his deadlines as he was required. Moreover, Roshan Bogga, a supervisor in another Branch, wrote a letter expressing appreciation for the work plaintiff did on a particular job with him. R. 685-88. Mr. Bogga apparently sent this letter to Bruce Zalut, and before a copy was distributed to plaintiff, Rich Newburg intercepted it and directed that all copies of the letter be destroyed. R. 687, 488-90. Mr. Newburg testified that he did this because he did not think it was appropriate to single out plaintiff since he had failed to handle the project within the required time frame and it would set a "bad precedent." R. 489. Mr. Grieco testified that he did not give plaintiff the letter because he felt that another employee, Libby Bowman, should have gotten the credit for working on the project and not plaintiff. R. 1559-61. Finally, several witnesses testified that Mr. Newburg berated plaintiff on numerous occasions by yelling and screaming at him in front of other employees. R. 2247, 2257, 2275, 980-82, 1015-17, 1040. Plaintiff went to Mike Grieco to complain about Mr. Newburg's treatment of him, however, despite this fact, Mr. Grieco later assigned Mr. Newburg as plaintiff's immediate supervisor. R. 1722, 82-84. Bruce Zalut was also aware of Mr. Newburg's alleged treatment of plaintiff. While he testified that he was not happy with Newburg's skills as a supervisor, he did not reassign plaintiff to another supervisor because Mr. Newburg needed to learn tact. R. 466, 475-76. While plaintiff's evidence of disparate treatment is too extensive to recite fully here, there is enough evidence from which a reasonable jury could infer that defendant had a discriminatory motive for firing plaintiff and denying him his within-grade increase. See Equal Employment Opportunity Comm. v. Metal Serv. Co., 892 F.2d 341, 351-52 (3rd Cir.1990) (federal courts should not make the requirement for proving a prima facie case overly burdensome).
*353 However, this does not end our inquiry, because there is evidence from which a reasonable jury could also conclude that defendant had legitimate reasons for denying plaintiff's within-grade increase and for firing plaintiff. Both Mr. Grieco and Mr. Newburg testified in detail about plaintiff's performance problems. Mr. Grieco first learned plaintiff was having problems with timeliness back in April 1988. R. 1484. He began to discuss plaintiff's work with him on a biweekly basis. R. 1553. Mr. Newburg testified that he began discussing plaintiff's work with him on a daily basis in order to help him prioritize his work and to see what was accomplished. R. 955-66. Despite putting plaintiff on a performance improvement plan in October 1988, the evidence suggests that plaintiff continued to exhibit the same deficiencies. Not only did Mr. Newburg and Mr. Grieco testify in detail about many mistakes made by plaintiff under each critical element, but the October 1988 warning letter, the letter denying the within-grade increase, the letter citing plaintiff's unacceptable performance for the period ending February 28, 1989 and the letter containing the advance notice of removal all contain numerous examples of errors committed by plaintiff on various projects under each critical element. As such, there is ample evidence from which a reasonable jury could conclude that defendant's actions were the result of legitimate non-discriminatory business reasons.
Plaintiff argues that the evidence clearly shows that defendant's actions were the result of religious discrimination. However, plaintiff has not established that defendant's explanation for its actions was merely pretextual. We note, however, that there is sufficient evidence to raise a genuine issue of material fact regarding pretext. For instance, on one project, plaintiff was supposed to have awarded a certain contract by March 1988. Despite Mr. Grieco's testimony that he had bi-weekly discussions with plaintiff regarding his work, he states he did not confront plaintiff about this project until they gave him the October 1988 warning letter. R. 1547. Plaintiff also testified that Mr. Grieco and Mr. Newburg often gave plaintiff conflicting directions. For instance, in one of the projects under critical element number two that resulted in plaintiff's removal, plaintiff testified that Mr. Grieco told him to prepare the solicitation as "full and open" competition. Mr. Newburg then told plaintiff to prepare the solicitation for small businesses and not for full and open competition. After plaintiff changed the solicitation, he was told by Mr. Grieco to change the solicitation back to full and open competition. R. 982. Arguably, this resulted in plaintiff not completing the solicitation within the deadline. R. 983. Plaintiff testified that several of the errors that he was cited for making were in fact made by other employees in the Branch. For instance, one of his projects was given to Dolores Burgess because plaintiff allegedly did not complete it in a timely manner. Yet this same project was one of the projects for which plaintiff was cited in the "warning of unacceptable performance" letter. R. 1306-09. Plaintiff also testified that another project for which he was faulted was actually a project completed by employee Monica Gormley. R. 1098-99. Plaintiff testified that many times he was reviewed for projects which he had not officially submitted for review, rather, that Mr. Newburg often secretly took the projects from his desk or his trash. R. 1148, 1260. For the projects that he did turn in, he was held to much stricter processing times than any other GS-12 contract specialists. R. 1141, 2489, 2479.
Plaintiff makes numerous other allegations in support of his claim of disparate treatment such as defendant falsified documents and backdated documents, kept secret notes on defendant and consistently awarded other contract specialists for their work while constantly berating plaintiff, although the other contract specialists committed as many if not greater errors than he did. However, we need not discuss all of these other allegations because it is clear that an issue of fact exists in this case. Plaintiff has presented sufficient evidence for a jury to find that he may have been treated differently than others by defendant. However, whether or not this treatment was because of his religion is really an issue of fact, which must be determined at some later point. Clearly, the evidence of the religious slurs and different treatment by his supervisors gives rise to an inference of *354 discrimination, but there is ample evidence presented by defendant by both testimony and documentary evidence (such as Mr. Newburg's notes) to show that plaintiff committed numerous and critical errors in his work product. Given that we are to view the evidence in a light most favorable to defendant, we are not inclined to say that the evidence shows "a discriminatory reason more likely motivated [defendant] or ... that [defendant's] proffered reason is unworthy of credence." Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 523 (3rd Cir. 1992), cert. denied, ___ U.S. ___, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993) (citations omitted); Jalil v. Avdel Corp., 873 F.2d 701, 707 (3rd Cir.1989), cert. denied, 493 U.S. 1023, 110 S.Ct. 725, 107 L.Ed.2d 745 (1990) (summary judgment should not be granted if plaintiff raises a factual question regarding employer's real motivation for discharge because intent is a factual issue that needs to be "`inferred from the facts and conduct of the parties.'"). As such, plaintiff's motion for summary judgment on the issue of religious discrimination is denied.
B. Reprisal Claim
In order to prove a claim of reprisal (retaliation), plaintiff must show that he was engaged in protected activity under Title VII, he was subjected to an adverse employment decision by defendant and there was a causal link between defendant's actions and the protected activity. See 42 U.S.C. § 2000e-3(a) (1981)[5]; Robinson v. Southeastern Pennsylvania Transp. Auth., 982 F.2d 892, 895 n. 1 (3rd Cir.1993); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3rd Cir.1989), cert. denied, 493 U.S. 1023, 110 S.Ct. 725, 107 L.Ed.2d 745 (1990); Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987), cert. denied, 498 U.S. 939, 111 S.Ct. 345, 112 L.Ed.2d 309 (1990). A prima facie case does not need to be proven at the summary judgment stage. Yartzoff, 809 F.2d at 1375. However, once a prima facie case has been established, defendant then has the burden of establishing a legitimate, nonretaliatory explanation for its actions. Id. at 1376. The employer need not persuade the Court that its reasons were legitimate, rather, it is appropriate that defendant's evidence raises a genuine issue of material fact for the factfinder to conclude there was no retaliation. Id. The ultimate burden of proof still lies with plaintiff, however, and if a legitimate nonretaliatory reason is articulated, the plaintiff must prove that the explanation is pretextual and that he was the victim of retaliation. Id. at 1376-77. Summary judgment is generally unsuitable where plaintiff has proven a prima facie case because "of the `elusive factual question' of intentional discrimination," although it is generally proper where a prima facie case has not been established. Id. at 1377 (citations omitted).
In Yartzoff, the Ninth Circuit held there was no error by the district court in concluding that a prima facie case could not be proven where EPA conducted a surprise quality assurance test at plaintiff's work-place. The court found there was no evidence that the test was given in retaliation of plaintiff's allegations that he had been discriminated against by his employer. Rather, the evidence showed that the test had been planned months before plaintiff even instituted his lawsuit. As such, plaintiff failed to establish the causal connection element necessary to prove a prima facie case.
However, with regard to plaintiff's other retaliation claims, the court erred in granting summary judgment for the employer because there was evidence of a prima facie case. Plaintiff established that shortly after he had filed his complaints of discrimination and had cooperated in investigations of his claims, his employer transferred various job duties away from him and he began to receive subaverage performance ratings. The court found that since the employer offered a legitimate reason *355 for its adverse employment decisions with regard to plaintiff, and there was enough evidence by plaintiff to raise a genuine issue of fact that the actions of the employer were pretextual, summary judgment in favor of defendant should not have been granted. See also Miller v. Fairchild Indus., Inc., 797 F.2d 727, 732-33 (9th Cir. 1986), cert. denied, 494 U.S. 1056, 110 S.Ct. 1524, 108 L.Ed.2d 764 (1990).
In the present case, plaintiff alleges that he is entitled to summary judgment on the retaliation claim because he was forced to take annual leave to review agency documents in order to prepare for the administrative hearing on the denial of his within-grade increase, because defendant continued to apply the invalid performance standards against him, because defendant manufactured a case against him, in part, by using fraudulent documents in order to have him removed, and by failing to provide documents requested by plaintiff during discovery. He also contends that much of the conduct discussed above pertaining to the religious discrimination claim also proves his retaliation claim. For instance, plaintiff refers to his testimony that defendant frequently took documents off his desk that were not complete and used them to review his performance, that he was rated on one project actually performed by employee Dolores Burgess, and that defendant intentionally changed the priorities on plaintiff's assignments. Further, there is testimony by employee Dyann Jacobs who indicated that she heard plaintiff might be removed from his job months before he was actually removed. R. 702.
However, we need not review all of the evidence because it is clear that there are genuine issues of material fact in this case. First, issues exist as to whether plaintiff has proven a prima facie case of reprisal. There is certainly evidence that plaintiff engaged in protected activitythat of filing and litigating his religious discrimination claimand that defendant acted adversely by firing him. However, it is not entirely clear that defendant fired plaintiff because of his claim for religious discrimination. While a reasonable jury could infer that plaintiff was fired in retaliation for his religious discrimination claim because he was still involved in the administrative trial for the within-grade denial when the advance notice of removal letter was given to plaintiff, see Jalil v. Avdel Corp., 873 F.2d 701, 708 (3rd Cir.1989), cert. denied, 493 U.S. 1023, 110 S.Ct. 725, 107 L.Ed.2d 745 (1990); Nixon v. Runyon, 856 F.Supp. 977, 988 (E.D.Pa.1994) ("Temporal proximity can give rise to an inference of causation."), we note there is no other evidence established by plaintiff showing the causal connection required for a prima facie case.
Even if the evidence suffices for a prima facie case, however, defendant has offered a legitimate reason for firing plaintiff. As such, there is sufficient evidence from which the factfinder could infer that defendant's reason was pretextual. For instance, the timing of the firing, the comment that plaintiff was going to be fired, and the alleged treatment of plaintiff in order to "build a case" for removal all support such an inference. It does not, as plaintiff asserts, conclusively establish that plaintiff is entitled to relief, especially since we are to view the evidence in a light most favorable to defendant. See e.g. Jalil, 873 F.2d at 709 ("factual issue regarding motivation ... properly belongs to the factfinder."); Miller, 797 F.2d at 732-33 (issue of whether defendant's business reason was pretextual should not be resolved by motion for summary judgment). Thus, because genuine issues of fact remain, plaintiff's motion for summary judgment must be denied.
Conclusion
Because plaintiff's performance standards are unreasonable, absolute and unobjective, defendant should not have evaluated plaintiff under them, and therefore we must reverse the decision of the MSPB affirming plaintiff's removal and denial of his within-grade increase. However, genuine issues of fact remain in plaintiff's claims of religious discrimination and reprisal. Therefore, plaintiff's motion for summary judgment on the Title VII claims is denied.
NOTES
[1] It should be noted that in this case, the administrative record consists of over 9,300 pages.
[2] Although Judge Squire granted plaintiff's motion for sanctions, it is important to note that she did not mention the negative inference in determining that the performance standards were not different. Further, the MSPB did not address this issue at all when reviewing Judge Squire's decision.
[3] Defendant does not seek summary judgment on the Title VII claims but rather concedes there are "genuine issues of fact in dispute in this matter." Defendant's response to plaintiff's motion for summary judgment, p. 8.
[4] The elements of a prima facie case of discrimination are as follows: 1) the plaintiff is a member of a protected class; 2) she was qualified for the position; 3) despite her qualifications, the employer terminated her; 4) and after the termination, the employer sought a replacement. Doe v. Kohn, Nast & Graf, 862 F.Supp. 1310, 1318 at n. 5 (E.D.Pa.1994) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13, 93 S.Ct. 1817, 1824 n. 13, 36 L.Ed.2d 668 (1973)). However, as noted in Doe, in a discriminatory firing case, the fourth element of the McDonnell test is not required. Id.
[5] Section 2000e-3(a) states "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, ... to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a) (1981). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261743/ | 861 F.Supp. 157 (1994)
Jeffrey J. PYLE and Jonathan H. Pyle, By and Through his father and next friend, Christopher H. PYLE, Plaintiffs,
v.
The SOUTH HADLEY SCHOOL COMMITTEE, Charles F. Kimball, Individually and in his capacity as Interim Superintendent of South Hadley High School, Paul Raymond, Individually and in his capacity as Interim Principal of South Hadley High School, and Donna Theroux-Cole, Steven M. Marantz, Chairman, Robert L. Gouin, Mary Jo Moore, Kevin Taugher, Individually, and in their capacity as Members of the South Hadley School Committee, Defendants.
Civ. A. No. 93-30102-MAP.
United States District Court, D. Massachusetts.
August 26, 1994.
*158 John Reinstein, Civ. Liberties Union of Mass., Boston, MA, William Newman, Civil Liberties Union, Northampton, MA, Sarah Wunsch, Mass. Civil Liberties Union Fdn., Boston, MA, for plaintiffs.
Raymond R. Randall, Ryan, Boudreau, Randall & Kirkpatrick, South Hadley, MA, for defendants.
MEMORANDUM
PONSOR, District Judge.
I. INTRODUCTION
This case is a reminder that it is easy to assume a tempest in a teapot is trivial, unless you happen to be in the teapot.
The tumult here arose when two students at South Hadley High School wore T-shirts one reading "See Dick Drink. See Dick Drive. See Dick Die. Don't be a Dick" and the other reading "Coed Naked Band: Do It To the Rhythm" that teachers, school administrators and, ultimately, the town's school committee decided were unacceptable school dress.
The students then sued the superintendent and school board, claiming that the school's dress code generally, and its application to the two T-shirts specifically, violated their First Amendment rights. This court denied *159 the students' motion for preliminary injunction, which sought an immediate order barring the school's prohibition of the particular T-shirts. A four-day bench trial followed regarding the shirts and two provisions of the dress code, one addressing vulgarity and the other harassment.
The court's recitation of facts and discussion of the law below is lengthy, but its essence can be quickly summarized.
The First Amendment limits minimally, if at all, the discretion of secondary school officials to restrict so called "vulgar" speech including speech containing sexual innuendo, however lukewarm by some standards. The sexual witticism at issue in this case is almost identical in tone to the student's remarks reported in Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). In that case the Supreme Court affirmed the school's power to curb, and even discipline, the speaker. Similarly here, the school's exercise of its authority to limit the sexual double entendre on these T-shirts, even where there was no immediate prospect of disruption, did not run afoul of the First Amendment.
Plaintiffs argue that, even if school administrators have the hypothetical power to limit "vulgar" speech, this court must itself weigh the slogans on its own scale of offensiveness and conclude that these particular T-shirts simply were not vulgar. The question then becomes, who decides what is "vulgar"? The answer in most cases is easy: assuming general reasonableness, the citizens of the community, through their elected representatives on the school board and the school administrators appointed by them, make the decision. On questions of coarseness or ribaldry in school, federal courts do not decide how far is too far.
This is because people will always differ on the level of crudity required before a school administrator should react. The T-shirts in question here may strike people variously as humorous, innocuous, stupid or indecent. In assessing the acceptability of various forms of vulgar expression in a secondary school, however, the limits are to be debated and decided within the community; the rules may even vary from one school district to another as the diversity of culture dictates. The administrators here acted within reason, and the court's inquiry need go no further. Therefore, the court will deny the motion for injunctive relief directed at the two T-shirts themselves and at that portion of the dress code forbidding clothing that is "obscene, profane, lewd or vulgar."[1]
As regards the second aspect of the dress code the ban on clothing that "harasses, threatens, intimidates or demeans" certain individuals or groups the plaintiffs' motion will be allowed. Enforcement of this portion of the code will be enjoined, except in circumstances where the clothing in question also creates a substantial risk of a material and substantial disruption to the daily operations of the school described in the Supreme Court's decision in Tinker v. Des Moines School District, 393 U.S. 503, 509, 89 S.Ct. 733, 738, 21 L.Ed.2d 731 (1969). Any other ruling would permit school officials to circumscribe improperly the expression of opinion on controversial issues, even where that expression contained no vulgarity and offered no threat to the orderly performance of the school's educational mission.
The First Amendment does not permit official repression or homogenization of ideas, even odious ideas, and even when the expression of these ideas may result in hurt feelings or a sense of being harassed. A school committee may not ban speech other than that reflecting the dominant or most comforting ethos. The "harassment" provision at issue here, while it obviously has laudable goals, gives school personnel precisely that excessive authority.
Of course, as this court has emphasized, school officials have the authority to limit expression that "would substantially interfere with the work of the school or impinge *160 upon the rights of other students." Tinker v. Des Moines School Dist., 393 U.S. 503, 509, 89 S.Ct. 733, 738, 21 L.Ed.2d 731 (1969). But, where it is not disruptive or vulgar, a student's personal expression may not be censored on the basis of its content.
II. FACTS
A. The Parties
Plaintiff Jeffrey Pyle ("Jeffrey"), is now an eighteen-year-old freshman at Trinity College in Hartford, Connecticut. In 1993, he was a student at South Hadley High School and participated in the band and the drama club. Jeffrey's father, Christopher Pyle, a professor of constitutional law at Mount Holyoke College, is also a plaintiff, bringing this action on behalf of his minor son Jonathan, a sixteen-year-old sophomore still attending the high school. It is undisputed that both Jeffrey and Jonathan have achieved an excellent record, both academically and with respect to their extracurricular activities. They have been good students and good citizens of their school.
Defendants are: the South Hadley School Committee and its individual members; Charles Kimball, individually and in his capacity as Interim Superintendent of the South Hadley High School; and Paul Raymond, interim principal of the high school.
South Hadley is a town of approximately 16,000 inhabitants, located at the foot of the Holyoke Mountain range in Western Massachusetts. The area is rich in both history and culture. South Hadley has a strong commitment to the education of the town's students and is influenced, in part, by the presence of Mount Holyoke College as well as many of the excellent academic institutions nearby. The first public school in South Hadley was built in 1754. In 1870 the high school held a graduation for its first class of two students. By 1900 the population of South Hadley had increased to approximately 4,500 and in 1904 the first woman school committee member, Mary Brainard, a retired high school teacher, was elected. In 1907, the high school graduated a "large" class of 16 students. Over the years, South Hadley has continued to grow, and the location of the high school has changed several times due to the demand for more space. Presently, approximately 785 students attend South Hadley High, in the eighth through twelfth grades, ranging in age from twelve to eighteen years old.
B. Findings of Fact
The following facts emerged from the bench trial, which took place from March 28, 1994 to April 1, 1994.
The controversy over T-shirts in South Hadley can be traced back to some time during the 1991 school year. Prior to this time, an informal system was in place at the school. If a student wore an objectionable T-shirt to class, a teacher would ask the student to remove it or turn it inside out. The number of times this occurred in the past was minimal.
Then came the "Button Your Fly" controversy. Charles Kimball, principal of the high school in 1991, sent home a student wearing a T-shirt with this popular Levi-Strauss logo. At that time, the dress guidelines at South Hadley High School were set out in the folder given to each student at the beginning of the school year. A section entitled "Personal Appearance" stated:
Personal appearance should not disrupt the educational process, call individual attention to the individual, violate federal, state, or local health and obscenity laws, or affect the welfare and safety of the students, teachers, or classmates. Students will be asked to change inappropriate attire.
Under this provision, Kimball sent the student home to change his T-shirt. Unfortunately, on his way from school the student fell off his moped and broke his arm.
The next day, approximately 20 to 30 students wore "Button Your Fly" T-shirts to school and staged a peaceful sit-in to protest the banning and the injury to their classmate. Jeffrey, then a sophomore at the high school, participated in this demonstration. Jonathan, a student in the middle school at the time, also wore the "Button Your Fly" T-shirt to his school.
*161 In response to the protest, Principal Kimball eventually decided to allow the students to wear the T-shirts pending a school committee meeting on the subject. As now, the school committee consisted of five members.
At a meeting on May 24, 1991, the school committee decided, by a 3-2 vote, to allow the students to wear the "Button Your Fly" T-shirt. To no one's surprise, the logo's popularity plummeted following this decision, and until the Spring of 1993 the dress code issue lay dormant.
Troubles began to brew again on March 24, 1993, when Jeffrey wore a T-shirt to his gym class bearing the slogan "Coed Naked Band; Do It To The Rhythm" ("Coed Naked Band"). This shirt was a Christmas gift given to Jeffrey by his mother celebrating Jeffrey's involvement in the school band. After viewing the T-shirt, Jeffrey's gym teacher told him that it was unacceptable. Although she allowed Jeffrey to wear the shirt for the rest of her gym class, she warned him not to return to her class wearing the Coed Naked Band T-shirt.
In response, Jeffrey wrote a letter to acting principal Paul Raymond. In his letter, Jeffrey explained that, because he felt his constitutional right to freedom of expression was being violated, he intended to wear the T-shirt again. He noted that he had worn the Coed Naked Band T-shirt on several previous occasions and had not received any complaints. In addition, he had seen both boys and girls wearing "Coed Naked" T-shirts with various tag-lines at South Hadley High and never saw them cause a disruption. He concluded, "I am respectfully informing you that I plan to wear this shirt, and similar shirts, in the future. Of course, if any of my shirts were to cause a genuine disruption, I would change it immediately." Acting principal Raymond did not respond to Jeffrey's letter.
When the next gym class met, Jeffrey wore his Coed Naked Band T-shirt to class again. This time the teacher asked Jeffrey to change his shirt. When Jeffrey refused, he was given three detentions for insubordination and sent to the office. Acting Principal Raymond met with Jeffrey, and they both looked at a publication sponsored by the Massachusetts Department of Education, entitled "Check it Out," for guidance on the issue of dress codes. Raymond, unsure whether Jeffrey's T-shirt was permissible under the dress code then in effect, decided to seek guidance from the members of the school committee and put Jeffrey's detentions on hold until the April 6, 1993 meeting.
In the days prior to April 6, Jeffrey deliberately continued to test the rules by wearing two new T-shirts to gym class. One T-shirt depicted two men in naval uniform kissing each other with a tag line "Read My Lips." The second T-shirt depicted a marijuana leaf and stated "Legalize It." Neither prompted an objection.
At the April 6, 1993 school committee meeting Jeffrey orally presented his views regarding censorship and the boundaries of a student's First Amendment rights. Also speaking at that meeting was Jeffrey's gym teacher, who explained her ground rules of acceptable behavior. Students were not allowed to wear T-shirts that targeted or harassed a person because of race, sex, religion, or sexual orientation. During the past few years, this teacher had used the "Coed Naked" series of shirts as an example of what she considered unacceptable dress in her gym class. See Affidavit of Susan Tyler at ¶ 3.
During the meeting, Jeffrey requested that the school committee formally draft a dress code because, in his opinion, the current guidelines were too vague. The school committee believed that the school's informal policy of requesting a student to change an objectionable T-shirt had proved successful. They were at first reluctant to attempt a more formal dress code.
By the end of the April 6th meeting, however, the school committee agreed not to enforce the three detentions given to Jeffrey and to consider the dress code issue further. On April 7, 1993, Jeffrey sent a letter to the members of the School Committee outlining once more his request that the school committee adopt a new, formal dress code.
On April 20, 1993, the school committee held a second meeting at which it considered proposals to amend the existing guidelines *162 regarding dress. After reviewing a dress code then in use at the Longmeadow High School, the school committee decided to adopt a similar approach, later embodied in a memo dated April 29.
On April 22, 1993, Christopher Pyle, Jeffrey and Jonathan's father, sent School Committee Chairperson Steven Marantz a ten page single-spaced letter, setting forth specific objections to the newly adopted dress code and offering several suggestions to cure what he viewed as its constitutional infirmities. The School Committee did not respond to Professor Pyle's letter.
On April 29, 1993, the students, faculty, staff, and parents of students at South Hadley High School were sent the following notice.
TO: Students, Faculty, Staff and Parents
FROM: Paul R. Raymond, Interim Principal
Subject: Dress Code at South Hadley High School
On Tuesday, April 20, 1993 and again on Tuesday, April 27, 1993 the South Hadley School Committee voted to amend the current dress code to read as follows:
CURRENTLY IN THE DRESS CODE:
Personal appearance should not disrupt the educational process, call singular attention to the individual, violate federal, state, or local health and obscenity laws, or affect the welfare and safety of the students, teachers, or classmates.
ADDITIONS TO THE DRESS CODE:
Students, therefore, are not to wear clothing that:
1. Has comments or designs that are obscene, lewd or vulgar.
2. Is directed toward or intended to harass, threaten, intimidate, or demean an individual or group of individuals, because of sex, color, race, religion, handicap, national origin, or sexual orientation.
3. Advertises alcoholic beverages, tobacco products, or illegal drugs.
If such clothing is worn to school, students will be required to change or will be sent home to do so.
Clothing expressing political views is allowed as long as the views are not expressed in a lewd, obscene or vulgar manner.
This policy will become effective per the direction of the South Hadley School Committee on Monday, May 3, 1993.
Plaintiffs' Exhibit 10.
On May 3, 1993, the day the code was to take effect, Jeffrey wore a T-shirt to school with the slogan "Coed Naked Civil Liberties: Do It To The Amendments" ("Coed Naked Civil Liberties" T-shirt) to signify his opposition to the new dress code.[2] The same day, Jonathan, a sophomore, wore a T-shirt bearing the slogan: "See Dick Drink. See Dick Drive. See Dick Die. Don't Be A Dick" ("See Dick" T-shirt). Jonathan and Jeffrey wore these T-shirts for about four periods with no incident. Later in the day, Jeffrey and Jonathan were sent down to the administration office where Acting Principal Raymond and Acting Vice-Principal Zajac told them that their T-shirts were unacceptable. They were given the usual three options: First, turn the T-shirt inside out; second, change into another T-shirt, or third, go home and change. Jeffrey and Jonathan decided to go home and did not return to school until the next day.
Following a letter from plaintiffs' counsel, the school committee took no action regarding the dress code from May 4 to May 11, so that they could meet and discuss counsel's concerns regarding the constitutionality of the amended dress code. On May 5, 1993, on the advice of counsel, the school committee agreed to retract the prohibition on the "Coed Naked Civil Liberties" and "See Dick" T-shirts pending a May 11, 1993 school committee meeting. Jeffrey and Jonathan were notified of this new position and wore these two T-shirts on May 7, 1993, without incident.
On May 11, 1993, the school committee reconvened and discussed the dress code with plaintiffs' counsel. This meeting had several results. First, the school committee reaffirmed the guidelines set forth in the April 29 memorandum. Second, the committee *163 defeated a motion to continue to permit the "See Dick" and "Civil Liberties" T-shirts. These shirts were therefore again off limits. Third, the committee granted the school administration (Kimball, Raymond and Zajac) the authority to interpret and enforce the code.
That same day, May 11th, Jonathan protested the dress code by wearing a home-made T-shirt bearing a picture of a gerbil and the tagline "Coed Naked Gerbils" on the front and "Some People Will Censor Anything" on the back. Jonathan was sent to the office where his T-shirt was reviewed by Kimball, Raymond, and Zajac. Kimball said that while he personally found the shirt to be inappropriate, it did not violate the dress code. Jonathan was then given a pass to return to class.
On May 14, 1993, Jonathan wore a T-shirt that read "Coed Naked Censorship They Do It In South Hadley." One of his teachers sent Jonathan down to the office to get an evaluation of the T-shirt. Kimball looked at the T-shirt and found that it did not violate the dress code. Once more, Jonathan was given a pass to return to his class. Jonathan wore this T-shirt to school on another day and did not experience any problems. He also wore a T-shirt celebrating the Smith College centennial, and reading "A Century of Women on Top," without incident.
Jonathan and Jeffrey both admit that they selected these T-shirts to protest censorship and to test the capacity of the administration to distinguish prohibited from permitted messages. At least three of the shirts (Coed Naked Censorship, Coed Naked Civil Liberties and Coed Naked Gerbils) were custom-created to test, and lampoon, the borders of the permitted range.
On May 17, 1993, Jeffrey wore the Coed Naked Civil Liberties T-shirt again to school. Jeffrey was sent to the office, where Principal Kimball reviewed the shirt and, this time, found that it did not violate the dress code. Jeffrey returned to class and wore the T-shirt for the rest of the school day. That same day, Jonathan wore the "See Dick" T-shirt again. Vice-principal Zajac told Jonathan that the T-shirt was unacceptable. Unwilling to change, Jonathan left school.
On May 18, 1993, Jeffrey tested the waters again with his "Coed Naked Band" T-shirt. By first period, he was sent down to Kimball's office, where he was told the shirt was not acceptable. Concerned with missing more classes, Jeffrey decided to change into a non-objectionable T-shirt. A short time later, Jeffrey graduated from South Hadley High School.
On May 18, 1993, Kimball sent a memorandum to the faculty at South Hadley High school regarding the dress code. In it, Kimball advised that
[t]he faculty should understand that every shirt or hat or whatever that you personally feel is off color or in bad taste will not automatically be found in violation of our present dress code. The code is designed to prevent lewd, obscene and vulgar statements on clothing and to prevent people from intimidating, demeaning or harassing students and staff on the basis of sex, creed, national origin, etc.
Kimball concluded that if a teacher had any questions regarding the appropriateness of a student's clothing, the student should be sent down to the office for a decision.
In the 1993-94 school year, South Hadley's Dress Code read, in pertinent part:
e. Students are not to wear clothing (including hats) which cause a disruption to the educational process or the orderly operation of the school. This includes clothing that:
1. Has comments, pictures, slogans, or designs that are obscene, profane, lewd or vulgar.
2. Harasses, threatens, intimidates or demeans an individual or group of individuals because of sex, color, race, religion, handicap, national origin or sexual orientation.
3. Advertises alcoholic beverages, tobacco products, or illegal drugs.
If such clothing is worn to school, students will be required to change or cover said clothing or will be sent home to do so. Refusal to change or cover said clothing will result in the students not being allowed to attend class until they have complied with the code. The students should *164 understand that failure to attend class may subject them to a penalty under the existing class attendance and truancy regulations at South Hadley High School and the South Hadley School Department.
Plaintiffs' Exhibit 22.
On this rendition of the code, defendants inadvertently omitted the provision concerning protection for expression of political views. On February 15, 1994, the defendants amended the September 1, 1993 dress code and added one final sentence.
Clothing expressing political views clearly is allowed as long as the views are not expressed in a lewd, obscene, profane or vulgar manner.
See Plaintiff's Exhibit 23. This dress code now remains in effect at South Hadley High School and is, in part, the subject of this lawsuit.
III. DISCUSSION
A. Applicable Supreme Court Decisions Concerning Students' Right to Freedom of Expression
Three important Supreme Court cases define the scope of a student's right to freedom of expression while in secondary school.
First, in 1969 the United States Supreme Court decided Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), holding that a student's black armband worn as a protest against the Vietnam War was constitutionally protected speech.[3] In Tinker, the Supreme Court stated that "[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Id. at 506, 89 S.Ct. at 736. While recognizing students' right to express themselves freely, the Court also recognized the need "for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Id. at 507, 89 S.Ct. at 736 (citation omitted).
Significantly, the Court reasoned as follows.
The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of the petitioners. There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and left alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the school or the rights of other students.
Id. at 508, 89 S.Ct. at 737. The Court concluded that the ban on the armbands could not be sustained, because the school failed to show that the wearing of the armbands materially and substantially interfered with the operation of the school.
Second, in Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), the Supreme Court reaffirmed the holding in Tinker and refined the law regarding the right of free speech in secondary school. The facts of Fraser are as follows. Matthew Fraser, a student at Bethel High School, delivered a speech at a high school assembly in support of a candidate for student government. Approximately 600 students attended the assembly. In nominating a fellow student for an elected office, Fraser described his candidate "in terms of an elaborate, graphic, and explicit sexual metaphor."[4] The school disciplined *165 Fraser, imposing a three-day suspension for deliberately using sexual innuendo in the speech, and removing his name from the list of potential candidates for graduation speaker at the school's commencement.[5] Subsequently, Fraser filed suit in district court alleging a violation of his First Amendment right to freedom of speech.
The district court held that the school's action violated Fraser's rights to free speech under the First Amendment. The Court of Appeals affirmed the district court decision, reasoning that Fraser's case fell within the rubric of Tinker. The Supreme Court reversed, distinguishing the war protest in Tinker from the sexual content of the speech by Fraser.
The marked distinction between the political "message" of the armbands in Tinker and the sexual content of respondent's speech in this case seems to have been given little weight by the Court of Appeals. In upholding the students' right to engage in nondisruptive, passive expression of a political viewpoint in Tinker, this Court was careful to note the case did "not concern speech or action that intrudes upon the work of the schools or the rights of other students."
Id., 478 U.S. at 680, 106 S.Ct. at 3163 (citation omitted).
Balancing the students' right to express unpopular and controversial views against the role of the school to inculcate civility in its students, the Court concluded that Fraser's speech was not entitled to First Amendment protection.
The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy.
Id. at 683, 106 S.Ct. at 3164. In upholding the actions of the school the Court carefully distinguished the rights of adults from the rights of minor high school students.
The First Amendment guarantees wide freedom in matters of adult public discourse. A sharply divided Court upheld the right to express an antidraft viewpoint in a public place, albeit in terms highly offensive to most citizens. See Cohen v. California, 403 U.S. 15 [91 S.Ct. 1780, 29 L.Ed.2d 284] (1971). It does not follow, however, that simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in public school. (citation omitted). ... "the First Amendment gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket." Thomas v. Board of Education, 607 F.2d 1043, 1057 (2nd Cir.1979).
Id., 478 U.S. at 683, 106 S.Ct. at 3164.[6]
Finally, the most recent Supreme Court decision addressing a high school student's First Amendment rights is Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). The issue in that case was whether a school's decision to delete two pages of an article concerning teenage pregnancy from a school newspaper violated students' right to free speech. The articles were written by students in a journalism class.
In analyzing the First Amendment implications, the Court underlined Tinker's holding that a school can prohibit speech that will "substantially interfere with the work of the school or impinge upon the rights of other students." The Court held, in addition, that a school could refuse to lend its name and resources even to non-disruptive expression. Id. at 266, 272-73, 108 S.Ct. at 567, 570-71 *166 (citations omitted). In distinguishing between school-sponsored and school-tolerated speech, the Court reasoned that a school
... need not tolerate student speech that is inconsistent with its "basic educational mission," even though the government could not censor similar speech outside the school. Accordingly, we held in Fraser that a student could be disciplined for having delivered a speech that was "sexually explicit" but not legally obscene at an official school assembly, because the school was entitled to "disassociate itself" from the speech in a manner that would demonstrate to others that such vulgarity is "wholly inconsistent with the `fundamental values' of public school education." We thus recognized that "[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board," rather than with the federal courts.
Id. at 266-67, 108 S.Ct. at 567-68 (Citations omitted).
The Court then distinguished the issue presented by Tinker, whether the First Amendment requires a school to tolerate particular student speech, from the issue in Hazelwood, whether the First Amendment requires a school affirmatively to promote particular student speech. Id. at 271, 108 S.Ct. at 570. Reasoning that educators have more control over school-sponsored speech, the Court held that the school could "disassociate" itself from certain speech even if the speech did not substantially interfere with the work of the school. Id. at 271, 108 S.Ct. at 570. In its analysis the Court noted the difference between Tinker and Fraser.
The decision in Fraser rested on the "vulgar," "lewd," and "plainly offensive" character of a speech delivered at an official school assembly rather than on any propensity of the speech to "materially disrup[t] classwork or involv[e] substantial disorder or invasion of the rights of others."
Id. at 271 n. 4, 108 S.Ct. at 570 n. 4.
These cases reveal at least three approaches to the First Amendment rights of high school students. First, "vulgar" or plainly offensive speech (Fraser-type speech) may be prohibited without showing a showing of disruption or substantial interference with the school's work. Second, school-sponsored speech (Hazelwood-type speech) may be restricted when the limitation is reasonably related to legitimate educational concerns. Third, speech that is neither vulgar nor school-sponsored (Tinker-type speech) may only be prohibited if it causes a substantial and material disruption of the school's operation. These distinctions are well described in Chandler v. McMinnville School Dist., 978 F.2d 524 (9th Cir.1992). In that case, the Ninth Circuit held that schools can suppress vulgar, lewd, obscene or plainly offensive language without a showing of school sponsorship or the threat of substantial interference with the schools work. Id. at 529.
It is undisputed that none of plaintiffs' T-shirts was school-sponsored or otherwise bore the imprimatur of the school. Hazelwood, therefore, does not apply. Message T-shirts generally fit either within the Tinker category of "school-tolerated" expression or, depending on the metaphor or language used, within the Fraser category. The court's task, then, is to apply the Supreme Court cases to the slogans at issue here and to the code itself.
Before turning to the constitutional analysis, however, it is necessary to eliminate one red herring from the discussion: the impact of a Massachusetts statute on the expressive rights of the high school students.
B. Effect of Mass.Gen.L. ch. 71, § 82
Mass.Gen.L. ch. 71, § 82 provides:
The rights of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school. Freedom of expression shall include without limitation, the rights and responsibilities of students, collectively and individually, (a) to express their views through speech and symbols, (b) to write, publish and disseminate their views, (c) to assemble peaceably on school property for the purpose of expressing their opinions....
No expression made by students in the exercise of such rights shall be deemed to *167 be an expression of school policy and no school officials shall be held responsible in any civil or criminal action for any expression made or published by the students.
Prior to 1988, section 82 was a "local options statute" and applied only to towns that affirmatively adopted it. However, in 1988, the Legislature passed a bill, sponsored by Representative Paleologos, rendering § 82 mandatory for all cities and towns. Plaintiffs argue this extension of state law was prompted by the Fraser and Hazelwood decisions and was intended to increase protection for student speech. According to plaintiffs, under Massachusetts law South Hadley is now only permitted to prohibit student speech that substantially and materially disrupts the basic educational mission of the schools. Plaintiffs contend that due to this statute no expression, however lewd or vulgar, can be prohibited in a high school in Massachusetts, without a showing of a substantial potential for disruption.
This aggressive interpretation of Mass. Gen.L. ch. 71, § 82 is offered without the support of a single reported decision construing the statute. Federal courts have been repeatedly admonished not to blaze "new and unprecedented trails" in state jurisprudence. Kotler v. American Tobacco Co., 926 F.2d 1217, 1224 (1st Cir.1990). Moreover, the statute itself and its sparse legislative history confirm that the law was aimed at Hazelwood and not at Fraser.
Both parties have submitted a press release by Representative Paleologos entitled "Representative Paleologos Files Bill To Promote Students Right To Free Expression."[7] The press report made clear that the intent of the Paleologos' bill was to remove the distinction, made in Hazelwood, between school-sponsored and school-tolerated speech. It focused upon the power of school officials to censor "school newspapers, plays and other `school-sponsored' activities." The statute freed school officials from concern about liability for student writings they might have been perceived as sponsoring.
No evidence suggests that either § 82, or the Paleologos bill making it mandatory, intended to take from the hands of school officials all power to limit non-disruptive, lewd or vulgar speech within the Commonwealth's secondary schools.
Contrary to plaintiff's argument, the Fraser holding does not depend on the fact that Matthew Fraser's speech was given at a school-sponsored event. The Court reasoned that the
... First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to dissociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the "fundamental values" of public school education.
Id., 478 U.S. at 685-86, 106 S.Ct. at 3165-66 (emphasis added).[8] While it is true that the *168 "school sponsored/school tolerated" paradigm can be dimly perceived in embryo in Fraser, the holding clearly focuses chiefly upon the lewd or indecent nature of the speech and not on the fact that the speech was school-sponsored.[9]
To summarize, section 82 requires that "school-sponsored" speech, such as articles in student-run newspapers, are to be judged by the same standard as "school tolerated" speech. Thus, school officials will not find themselves on the rack for students articles. Section 82 has no relevance, however, to the analysis of a school administrator's efforts to curb vulgarity and sexual innuendo. This statute does not affect Fraser's central holding. The court must apply a constitutional, not a state statutory, analysis.
The court will now turn to the two sections of the dress code challenged by the plaintiffs.
C. Clothing That is "Obscene, Profane, Vulgar or Lewd"
Plaintiffs contend that this provision of the dress code is unconstitutional because, before prohibiting speech as "vulgar", the school must establish that the message causes a substantial interference with the school's operation. Since school officials have not shown this, plaintiffs' argue, the court must find, first, that their action in prohibiting the T-shirts was unconstitutional and, second, that enforcement of this provision of the code must be enjoined.
As discussed above, the Supreme Court has ruled that schools are entitled to prohibit speech that is expressed in lewd, vulgar, or offensive terms, regardless of whether the speech causes a substantial disruption. See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159, 3164, 92 L.Ed.2d 549 (1986).
It is significant to note that, in enforcing this section of the code, defendants have not attempted to prohibit T-shirts based on the actual viewpoint expressed in the message, as in Tinker. No party has argued that in banning the "See Dick Drink" T-shirt school officials were attempting to repress the message that students should not drink and drive, or were trying to deter students from joining the band by prohibiting the "Do It to the Rhythm" shirt. Moreover, although plaintiffs attempt to characterize defendants' action as an effort to squelch a protest against censorship, the evidence is to the contrary: T-shirts expressing opposition to censorship in various ways, some very whimsical and effective, were permitted. Only T-shirts that school officials considered vulgar were banned. Unlike Tinker, this is not a case about whether a particular viewpoint may be expressed. Rather, the prohibition targets the manner in which views are presented.[10]
*169 The facts in Broussard v. School Board of City of Norfolk, 801 F.Supp. 1526 (E.D.Va. 1992), are analogous to this case. In Broussard, plaintiff Kimberly Broussard, a twelve-year-old student attending the seventh grade, bought a concert T-shirt of the music group NKOTB (New Kids on the Block). The front of the shirt carried the words "Drugs Suck" in black and white letters about eight inches in height. The back of the shirt contained the name of the band and its leader, Donnie Wahlberg.
Kimberly wore the T-shirt to her seventh grade class at Blair Middle School, which was attended by approximately 1200 students, ranging in age from eleven to fifteen years old. School officials informed Kimberly that the T-shirt violated the dress code because the word "suck" was offensive. They requested that she change into another shirt or turn her shirt inside out. When Kimberly declined, the school imposed a one-day suspension.
Kimberly, through her parents, filed suit in federal district court claiming that the school officials violated her First Amendment rights. The district court stated that this was not a content based restriction on speech but rather concerned only the "authority of school officials to regulate language displayed on clothing that they reasonably regard as inappropriate and offensive." Id. at 1534. The district court reasoned that speech need not be sexual for schools officials to prohibit it; "speech that is merely lewd, indecent, or is offensive is subject to limitation." Id. at 1536.
Plaintiffs, through the use of etymology experts, attempted to persuade the court that the word "suck" in Kimberly's "Drugs Suck" T-shirt did not convey a sexual or offensive message but was commonly understood by students to mean that "drugs are bad." Id. at 1533. The court, demonstrating deference to the school board, determined that the word "suck" could reasonably be considered offensive and concluded that school officials acted properly in prohibiting the T-shirt and disciplining the student.
Other courts have endorsed the same position. For example, in Chandler v. McMinnville School Dist., 978 F.2d 524 (9th Cir. 1992), the Ninth Circuit held that school officials "may suppress speech that is vulgar, lewd, obscene, or plainly offensive without a showing that such speech occurred during a school-sponsored event or threatened to `substantially interfere with [the school's] work.'" Id. at 529 (citations omitted).
Similarly, in Gano v. School Dist., 674 F.Supp. 796 (D.Idaho 1987), the district court, denying a student's motion for preliminary injunction, held that a T-shirt containing a caricature of three school administrators drinking alcohol and acting drunk was "clearly offensive" and need not be tolerated by school officials. Id. at 798. See also Doe v. University of Michigan, 721 F.Supp. 852, 863 (E.D.Mich.1989), ("speech which is `vulgar,' `offensive,' and `shocking' is not entitled to absolute constitutional protection in all circumstances." (citations omitted)). Significantly, plaintiffs have not offered a single authority anywhere in the country holding that the First Amendment prohibits school officials from restricting non-disruptive, vulgar speech by students.
Plaintiffs maintain that the "See Dick" T-shirt expresses a political message and should therefore be given absolute protection. The Supreme Court has made clear, however, that the expressive rights of students are not coextensive with adults and must be "applied in light of the special characteristics of the school environment." Hazelwood School District v. Kuhlmeier, 484 U.S. at 266, 108 S.Ct. at 567 (citations omitted).[11] At least in high school, a political message does not justify a vulgar medium.
Jeffrey's "Coed Naked Band" T-shirt offers an excellent example of the inappropriateness of setting up a federal judge to second guess school administrators' decisions regarding student messages containing sexual *170 innuendo. After some struggle, the defendants determined that not all Coed Naked T-shirts should be prohibited. For example, Jonathan's contrived "Coed Naked Gerbils" and "Coed Naked Censorship" T-shirts were permitted. Only Coed Naked T-shirts that displayed an overt sexual tag line were deemed off limits. Other T-shirts in the "Coed Naked" line arguably go further. For example:
1. "Coed Naked Law Enforcement: Up Against the Wall and Spread `Em."
2. "Coed Naked Gambling: Lay Them on the Table."
3. "Coed Naked Auto-Racing: Lapping the Competition."
4. "Coed Naked Firefighters: Find `Em Hot, Leave `Em Wet."
5. "Coed Naked Lacrosse: Ruff and Tuff and in the Buff."
6. "Coed Naked Billiards: Get Felt on the Table."
The defendants here decided to draw the line somewhere between "Button Your Fly" and "Do It to the Rhythm." Other lines are easy to conceive, perhaps between "Do It to the Rhythm" and "Up Against the Wall and Spread `Em" or perhaps somewhere else. But, unless federal courts are to take on the task of assessing, each morning of the school year, the latest creations of the adolescent imagination or rather the latest mass-produced products of the commercial exploiters of the adolescent imagination the limits on vulgarity in secondary schools, assuming a general standard of reasonableness, are to be defined by school administrators, answerable to school boards and ultimately to the voters of a community. "Local control over the public schools, after all, is one of this nation's most deeply rooted and cherished traditions." Poling v. Murphy, 872 F.2d 757, 762 (6th Cir.1989).
It is important to emphasize that this latitude, while broad, is not without boundaries. No one could argue, for example, that wearing a black armband is "vulgar." There is no evidence that, in South Hadley, the prohibition is used as a pretext. In fact, the testimony reveals that students over the past five years have rarely been asked to change T-shirts. In the end, through the whole well orchestrated controversy in the 1992-93 school year, only two T-shirts were forbidden. Testimony revealed that no T-shirts were banned in the 1993-94 school year. Students, school administrators and teachers simply have more important things to do.
Moreover, reasonable limitations on vulgarity do facilitate a school's educational mission. Aside from the lessons in civility noted by the Supreme Court, testimony suggested that many students in South Hadley welcomed relief from an environment of unrelieved winks, snickering and sexual prodding. It becomes banal and distracting constantly to be exhorted to "do it." While plaintiffs' expert testified that the T-shirts in question here did not constitute, in her view, sexual "harassment" per se, she did agree that a substantial number of students, perhaps younger or less sophisticated, would find it hard to bring complaints to teachers or school administrators about a sexually-charged atmosphere that interfered with their ability to study, or sexual innuendo that made them uncomfortable.
In sum, on the question of when the pungency of sexual foolery becomes unacceptable, the school board of South Hadley is in the best position to weigh the strengths and vulnerabilities of the town's 785 high school students. The First Amendment does not compel the court into this arena. The plaintiffs' motion seeking an order lifting the school's prohibition of the two T-shirts, and requesting an injunction against the enforcement of the dress code provision against "obscene, profane, lewd or vulgar" apparel will be denied.
D. Clothing that "harasses, intimidates, or demeans an individual or group of individuals because of sex, color, race, religion, handicap, national origin or sexual orientation"
As has been repeatedly noted, schools have the right to prohibit speech that causes a substantial disruption to the educational process. Tinker v. Des Moines School Dist., 393 U.S. 503, 509, 89 S.Ct. 733, 738, 21 L.Ed.2d 731 (1969). In making this ruling, however, the Court warned that to justify silencing *171 student speech the school must show more than just a "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Id. at 509, 89 S.Ct. at 738. The Constitution forbids a school from prohibiting expression of opinion merely "because of an undifferentiated fear or apprehension of disturbance." Id. at 508, 89 S.Ct. at 737. It follows that while a school can bar a T-shirt that causes a material disruption, it cannot prohibit one that merely advocates a particular point of view and arouses the hostility of a person with an opposite opinion.
In our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom this kind of openness that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.
Id. at 508-09, 89 S.Ct. at 737-38 (internal citations omitted).
It is impossible to avoid the conclusion that the "harassment" provision of the South Hadley dress code is aimed directly at the content of speech, not at its potential for disruption or its vulgarity. In R.A.V. v. City of St. Paul, ___ U.S. ___, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), the Supreme Court addressed the constitutionality of a city hate speech ordinance.[12] In holding that the ordinance was unconstitutional viewpoint discrimination, the Court explained as follows.
In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some words odious racial epithets, for example would be prohibited to proponents of all views. But "fighting words" that do not themselves invoke race, color, creed, religion, or gender aspersions upon a person's mother, for example would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc. tolerance and equality, but could not be used by that speaker's opponents. One could hold up a sign saying, for example, that all "anti-Catholic bigots" are misbegotten; but not that all "papists" are, for that would insult and provoke violence "on the basis of religion." St. Paul has no such authority to license one side of a debate to freestyle, while requiring the other to follow Marquis of Queensbury Rules.
The Court went on to note that "[t]he point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of content."
In another case, Iota XI Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386 (4th Cir.1993), the University punished a local fraternity because it conducted an "ugly woman contest" that contained racist and sexist overtones. The fraternity brought suit claiming that imposition of the sanctions violated the First Amendment. The Court of Appeals for the Fourth Circuit affirmed the district court's grant of summary judgment in favor of the fraternity. According to the Court of Appeals, the University punished the message conveyed by the "ugly woman contest" because it "ran counter to the views the University sought to communicate to its students and the community." Id. at 393. The University's decision to punish this type of speech was problematic because *172 the mischief was the University's punishment of those who scoffed at its goals of racial integration and gender neutrality, while permitting, even encouraging, conduct that would further the viewpoint expressed by a majority of society as well. "The First Amendment generally prevents government from proscribing ... expressive conduct because of disapproval of the ideas expressed."
Id. at 393, quoting R.A.V. v. City of St. Paul, ___ U.S. ___, ___, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992). (Further citations omitted). While recognizing the University's substantial interest in maintaining an educational environment free of racism and sexism, the Court of Appeals explained that the University's conduct "cannot consist of selective limitations upon speech." Id. (citation omitted).
Similarly, a University policy prohibiting the use of symbols, epithets or slogans that carry negative connotations about a person's race or ethnicity was found to violate the First Amendment in Dambrot v. Central Mich. University, 839 F.Supp. 477 (1993). In that case, the University prohibited negative, but allowed positive, racial connotations.
A campus speaker may thus go on at length recounting what he supposes to be the ethnic attributes of, for example, the Irish. So long as he speaks in a way which appears, from the viewpoint of the university's enforcers, to be either positive or neutral, the speaker is on safe ground so far as university policy is concerned. That speaker's tally of ethnic attributes, though, would be the only viewpoint allowed to be heard on the CMU campus, because all speakers with a differing view on that issue are prohibited by the policy from responding: in their words the speech police can "infer negative connotations about an individual's ... ethnic affiliation" or something "hostile" on those ethnic grounds. One can, of course, remove "Irish" and substitute the "ethnic or racial affiliation" of one's choice in this example.
Id. at 483. The court concluded that the University's policy regarding the expression of speech "is as remarkable as it is illegal." Id. at 484.
The Supreme Court has acknowledged the generous discretion given to local boards in operating public schools. Edwards v. Aguillard, 482 U.S. 578, 583, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987). Clearly, secondary school officials have great latitude to regulate speech based on the school environment and the varying maturity levels of its students.
Nevertheless, as Tinker holds, the school's authority is not absolute. Despite students' more limited First Amendment rights in a school setting, South Hadley cannot silence non-vulgar, non-disruptive speech simply based upon the viewpoint expressed. Unfortunately, the "harassment" provision of the dress code does just that.
Justice Jackson, in a compulsory flag salute case, put the matter concisely.
The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures Boards of Education not excepted. ... That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.
West Virginia State Bd. of Education v. Barnette 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943).
The risk of repression raised by this provision is not hypothetical. The plaintiffs' T-shirts were, at first, prohibited partly on the questionable ground that they "harassed" female students. Trial testimony revealed, for example, that Jeffrey Pyle wore, without incident, a T-shirt displaying two men in naval uniform kissing. A T-shirt carrying a depiction objecting to homosexuality, on the other hand, would be flatly forbidden by the code because it "demeaned" a person based on his or her sexual orientation. South Hadley's desire to teach students tolerance of persons with a different religion, race, gender, or sexual orientation is certainly admirable. However, the school cannot silence speech that runs contrary to this laudable goal.
*173 Under the current code, if a student wore a T-shirt to South Hadley High School containing a message expressing antipathy towards, or for that matter sympathy with, a particular group, the school could still ban that T-shirt, if it reasonably concluded that the message would cause a substantial and material disruption to the daily operations of the school. Tinker allows the school to do this. But the school cannot pick and choose; it may not prohibit antipathetic slogans but allow positive ones. The "constitutional line is crossed when, instead of merely teaching, the educators demand that students express agreement with the educator's values." Steirer v. Bethlehem Area School Dist., 987 F.2d 989, 994 (3rd Cir.1993). Since the "harassment" section of the defendant's dress code overlaps this constitutional boundary, the court will allow this portion of the plaintiffs' motion for injunctive relief.
E. Arbitrary and Capricious Enforcement of the Dress Code
Finally, plaintiffs assert that the dress code has been enforced in an arbitrary and inconsistent manner and that as a result they have no adequate notice as to which T-shirts are permissible. Plaintiffs claim that the dress code has been used by the school administration to ban any messages which it finds personally offensive. Plaintiffs offer as evidence of capriciousness several occasions when school officials backtracked or delayed in rendering decisions on particular shirts.
The facts of record and trial testimony reveal the contrary. The occasional delay or inconsistency was minimal and caused by a combination of cleverness by plaintiffs and some cumbersomeness in the administration's attempts to respond. There was no evidence of bad faith. At trial Kimball testified that while he found many of the students' T-shirts personally offensive, he allowed them because they did not violate the dress code. His May 18, 1993 memo to the faculty informed the teachers of the same: not all T-shirts that the teachers found offensive would be deemed to violate the dress code. In order to enforce the dress code in a consistent manner and avoid a situation in which one particular administrator's views about the dress code dominated, the school developed a policy of review by three administrators. In sum, with some understandable awkwardness, the dress code was enforced reasonably, and in good faith.
It is not surprising that the school officials had some initial difficulty applying the dress code to the plaintiff's T-shirts. Many "experts" and scholars of the First Amendment disagree over the very issue before the court. In fact, the record amply supports the conclusion that the defendants' confusion was fueled, to some extent, by plaintiffs' attempt to expose the gray areas of the dress code and challenge its boundaries. After a rocky first few days, enforcement of the dress code became routine. Two T-shirts were banned in 1992-93, none in 1993-94.
In sum, the facts do not support the conclusion that the school's enforcement of the dress code was arbitrary and capricious.
IV. CONCLUSION
This is a tale "without heroes and without villains." Poling v. Murphy 872 F.2d 757, 761 (6th Cir.1989). It is impossible to conclude without a sense of respect, and sympathy, both for the plaintiffs, who have so ardently defended their right to free expression, and for the defendants, who have strived to recognize these rights and harmonize them with the rights of others in a turbulent school setting. These teacup-sized tempests are the workaday world of our Bill of Rights. It would be ominous indeed if the friction between individual rights and responsible authority were ever completely to end.
No evidence appears, however, to suggest that this tension will stop. Emily Dickinson, perhaps the greatest and most original of American poets, lived in South Hadley in the school year of 1847-48 while attending Mount Holyoke College, then known as Mt. Holyoke Seminary. On February 17, 1848, at age 17, she wrote to her brother Austin describing the school administration's attitude towards the recent holiday.
Monday afternoon Mistress Lyon [Mary Lyon (1797-1849), founder and principal of the Seminary] arose in the hall & forbade our sending "any of those foolish notes *174 called Valentines." But those who were here last year, knowing her opinions, were sufficiently cunning to write & give them into the care of Dickinson [no relation to Emily], during the vacation, so that about 150 were despatched on Valentine morn, before orders should be put down to the contrary effect. Hearing of this act, Miss Whitman by & with the advice & consent of the other teachers, with frowning brow, sallied over to the Post Office, to ascertain if possible, the number of Valentines and worse still, the names of the offenders. Nothing has yet been heard as to the amount of her information, but as Dickinson is a good hand to help the girls & no one has yet received sentence, we begin to think her mission unsuccessful.
The Letters of Emily Dickinson, Vol. I, at 63. (Thomas H. Johnson, ed., The Belknap Press of Harvard University Press, 1958).
To conclude, for the reasons set forth above the court will order entry of partial judgment for the plaintiffs with regard to their claim for injunctive relief against section e. 2. of the South Hadley dress code, and will order entry of judgment for the defendants on all other claims. A separate order will issue.
The clerk will enter partial judgment for plaintiffs on their demand for injunctive relief against Section e. 2. of the current dress code. Defendants are hereby enjoined from enforcing this section of the code, except to the extent that the clothing worn substantially interferes with the work of the school or impinges upon the rights of other students. In all other respects the clerk will enter judgment for defendants.
NOTES
[1] It is crucial to point out that this case does not involve any attempt to restrict books, educational materials, or classroom discussion, based on its vocabulary or content. The court's analysis in that event would be different. See, e.g., Keefe v. Geanakos, 418 F.2d 359 (1st Cir.1969) and Right to Read Defense Committee v. School Committee of Chelsea, 454 F.Supp. 703 (D.Mass.1978).
[2] This T-shirt was a gift to Jeffrey's father Christopher Pyle from his Mount Holyoke students.
[3] In Tinker, a handful of students wore black armbands in protest of the United States involvement in Vietnam. Pursuant to the school's policy regarding armbands, school administrators asked the students to take off the armbands while in school. When they refused to comply with this request, the students were sent home and suspended until they returned to school without the armbands. Id. at 504, 89 S.Ct. at 735.
[4] In addressing the student body, Fraser said the following.
"I know a man who is firm he's firm in his pants, he's firm in the shirt, his character is firm but most ... of all, his belief in you, the students of Bethel, is firm.
"Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts he drives hard, pushing and pushing until finally he succeeds.
"Jeff is a man who will go to the very end even the climax, for each and every one of you.
"So vote for Jeff for A.S.B. vice-president he'll never come between you and the best our high school can be."
Id., 478 U.S. at 687, 106 S.Ct. at 3166 (J. Brennan, concurring).
[5] The Bethel High School disciplinary rule, which to some extent tracks the language found in Tinker, provides that
Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.
Id. at 678, 106 S.Ct. at 3162.
[6] Cohen, an adult, had been arrested for wearing a jacket in a courthouse that read "Fuck the Draft."
[7] The press release describes the Hazelwood decision as follows:
Last week the Supreme Court ruled in a 5-3 decision that public school officials have broad power to censor school newspapers, plays and other "school-sponsored expressive activities." The bill would protect the rights of students to create and disseminate their uncensored views in a student sponsored and student controlled forum.
Paleologos, a former high school journalist and now House Chairman of the Legislature's Committee on Education, said, "We can't expect our kids to learn to think critically, if we muzzle them whenever they try and do so. Last week's Supreme Court decision [Hazelwood] put student newspapers into the principal's paper shredder." He continued, "In our state the message to students should be that though we may disagree with their views and opinions, we value their right to express themselves."
[8] Two pages earlier Chief Justice Burger wrote as follows:
Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Indeed, the "fundamental values necessary to the maintenance of a democratic political system" disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly "the work of the schools." Tinker v. Des Moines School Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (further citations omitted). The determination of what manner of speech in the classroom or in the school assembly is inappropriate properly rests with the school board.
Id., 478 U.S. at 683, 106 S.Ct. at 3164.
[9] In a footnote, the Court in Hazelwood explained the difference between Tinker and Fraser. It noted that the Fraser decision "rested on the `vulgar,' `lewd,' and `plainly offensive' character of a speech delivered at an official school assembly" rather than on any propensity of the speech to materially disrupt classwork. Id. 484 U.S. at 271-72 n. 4, 108 S.Ct. at 570-71 n. 4.
In his dissenting opinion, Justice Stevens seemed to recognize as much when he stated the following:
"Frankly, my dear, I don't give a damn." When I was a high school student, the use of those words in a public forum shocked the Nation. Today Clark Gable's four-letter expletive is less than it was then. Nevertheless, I assume that high school administrators may prohibit the use of that word in the classroom discussion and even in extracurricular activities that are sponsored by the school and held on school premises.
Id., 478 U.S. at 691, 106 S.Ct. at 3168 (Stevens, J. dissenting).
[10] In making this observation this court is not suggesting that the words chosen to express a message are not sometimes entitled to First Amendment protection. As Justice Harlan observed in Cohen, "one man's vulgarity is another's lyric" and "words are often chosen as much for their emotive as their cognitive effect." 403 U.S. at 25-26, 91 S.Ct. at 1788-89. Nevertheless, given the school setting, it is noteworthy that no effort was made here to limit viewpoint.
[11] Judge Newman succinctly expressed this point when he stated "the First Amendment gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket." Bethel School Dist. No. 403 v. Fraser, 478 U.S. at 682-83, 106 S.Ct. at 3164-65 (quoting Thomas v. Board of Education, Granville Central School Dist., 607 F.2d 1043, 1057 (2nd Cir.1979) (Newman, J., concurring)).
[12] The St. Paul ordinance provided:
Whoever places on public or private property a symbol, object, appellation, characterization, or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
Petitioner and a few other teenage boys were charged with violating this ordinance when they burned a cross inside the yard of a black family that lived in the petitioner's neighborhood. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261747/ | 861 F.Supp. 1162 (1994)
Richard SMEHLIK, Plaintiff,
v.
ATHLETES AND ARTISTS, INC., Defendant.
No. 93-CV-0510C.
United States District Court, W.D. New York.
August 24, 1994.
*1163 *1164 *1165 Cohen, Swados, Wright, Hanifin, Bradford & Brett (Larry Kerman, of counsel), Buffalo, NY, for plaintiff.
Brown & Fox, P.C. (Eileen Fox, of counsel), New York City, for defendant.
DECISION and ORDER
CURTIN, District Judge.
Plaintiff Richard Smehlik, a Czechoslovakian hockey player now under contract with the Buffalo Sabres hockey club ("the Sabres"), brought this action against defendant Athletes and Artists ("A & A"), a New York corporation retained by Smehlik to act as his representative in negotiating professional hockey contracts with the Sabres or with other National Hockey League ("NHL") teams. Smehlik's original 3-count complaint alleged breach of contract (Count I), negligent performance of contract (Count II) and fraudulent misrepresentation (Count III).
On July 22, 1993, A & A filed a motion to dismiss the action on three grounds, (i) that the court should abstain from hearing the case in view of a prior state court action brought by A & A against Smehlik concerning the same contract dispute; (ii) failure to state a claim; and (iii) improper venue. On November 2, 1993, I issued an order:
(1) dismissing Counts II and III of the complaint, but granting Smehlik leave to replead Count III;
(2) withholding ruling on the question of abstention; and
(3) withholding ruling on the question of venue, but
(a) granting Smehlik leave to conduct limited discovery to determine the extent of A & A's contacts with this district, and
(b) ordering both parties to further brief the venue issue.
Smehlik has filed an amended complaint, repleading the original Count III as Count II. A & A has filed an answer, and moved to dismiss Count II pursuant to Fed.R.Civ.P. 12(b)(6). Smehlik has conducted discovery on A & A's contacts with this district, and both sides have rebriefed the issue of venue. Both parties have also advised the court as to the current status of the state court action. This decision will address A & A's motion to dismiss Count II of Smehlik's amended complaint, and the questions of venue and abstention.
BACKGROUND
Smehlik was drafted by the Sabres in the 1990 NHL draft. On August 28, 1990, while still in Czechoslovakia, he signed an agreement with A & A under which, inter alia, A & A was to act as his exclusive representative in the negotiation of professional hockey contracts with the Sabres, or with whichever team held his rights. The agreement had an *1166 initial term of two years, or until such time as A & A had completed the negotiation of Smehlik's next professional hockey contract, whichever was longer.
A & A, a New York corporation whose principal place of business is in New York, New York, claims that it commenced contract negotiations with the Sabres on behalf of Smehlik in the summer of 1990. The negotiations, which were conducted entirely via telephone and fax, continued periodically until about April 1992. At that time, A & A received a letter from Smehlik stating that he was terminating his agreement with A & A, and/or that he believed the agreement to be invalid. Subsequently, in August 1992, Smehlik entered into a contract with the Sabres. That contract was negotiated by Rich Winter of The Entertainment & Sports Corporation, Smehlik's current agent.
On May 10, 1993, A & A commenced an action for breach of contract against Smehlik in New York State Supreme Court in New York County, seeking declaratory relief, damages, restitution, and attorneys' fees. Smehlik's answer, dated June 15, 1993, contained four affirmative defenses: (i) breach of contract by A & A, (ii) negligent performance of the agreement by A & A, (iii) misrepresentation by A & A of its ability to perform under the contract, and (iv) indefiniteness or unconscionability of various terms of the agreement. On the same day that Smehlik served his answer in the state court action, he commenced this lawsuit.
DISCUSSION
1. Abstention
In Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), the Supreme Court recognized that in "exceptional circumstances," district courts have discretion to dismiss lawsuits, for reasons of "wise judicial administration," when there are concurrent state court proceedings addressing the same issues. Id. at 817-19, 96 S.Ct. at 1246-47. A & A urges that I exercise my discretion under Colorado River to dismiss this case because there is a pending state court action involving issues identical to those presented here.
Indisputably, the issues raised here are the same as those being litigated in the state court actionwhether or not there was a valid contract between the parties, and if so, which side breached. However, the existence of a state proceeding involving the same issues is not by itself sufficient to justify dismissal. Colorado River Water Conservation District v. United States, 424 U.S. at 817, 96 S.Ct. at 1246. As the Second Circuit has recognized, the Colorado River Court:
identified several factors to be considered by district courts in applying the exceptional circumstances test: the assumption by either court of jurisdiction over any res or property, the inconvenience of the federal forum, the avoidance of piecemeal litigation, and the order in which jurisdiction was obtained. 424 U.S. at 818, 96 S.Ct. at 1246-47.
Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d 325, 327 (2d Cir.1986). Further, in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the Supreme Court:
elaborated upon this test and added two new considerations: whether state or federal law supplies the rule of decision, and whether the state court proceeding will adequately protect the rights of the party seeking to invoke federal jurisdiction. 460 U.S. at 23-27, 103 S.Ct. at 941-43.
Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d at 327. The determination of whether or not to defer to the state court "`does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.'" Id. (quoting Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. at 16, 103 S.Ct. at 937); see also, De Cisneros v. Younger, 871 F.2d 305, 307 (2d Cir.1989).
The first factorassumption of jurisdiction over a res or propertyis not implicated here. The absence of any jurisdiction over a res or property weighs in favor of the *1167 exercise of federal jurisdiction. De Cisneros v. Younger, 871 F.2d at 307.
The second factorthe inconvenience of the federal forumdoes not weigh in favor of abstention in this case. Although the Western District of New York may be a less convenient forum than New York County for A & A, whose offices are in New York City, New York County would be just as inconvenient for Smehlik, who resides (at least during the hockey season) in Western New York.
Similarly, the third factoravoidance of piecemeal litigationdoes not weigh significantly in favor of abstention here. Since the pendency of an action in state court is, generally, no bar to proceedings concerning the same matter in federal court, courts must consider, in weighing this factor, whether there is some exceptional circumstance for example, where there is a clearly stated federal policy of avoidance of piecemeal adjudication of interdependent property rights, and there is a substantial danger of inconsistent judgments, as in Colorado Riverjustifying a particular concern over piecemeal litigation. See Travelers Indemnity Co. v. Madonna, 914 F.2d 1364, 1368-1369 (9th Cir. 1990). There is no such exceptional circumstance here.[1], [2]
The fourth factorthe order in which jurisdiction was obtainedalso does not weigh significantly in favor of abstention. The Supreme Court has indicated that "priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. at 21, 103 S.Ct. at 940. Smehlik's complaint in this action was filed on the same day as his answer in the state court action. No significant progress had been made in state court at the time the present action was filed.[3]
The fifth factorwhether federal or state law provides the rule of decision again fails to favor abstention. The presence of state law issues may weigh in favor of abstention only "in some rare circumstances." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. at 26, 103 S.Ct. at 942. In cases involving only routine issues of state law, which federal district courts are fully capable of deciding, there are no such "rare circumstances." Travelers Indemnity Co. v. Madonna, 914 F.2d at 1370. The state law issues that may be raised in the present case are routine issues of breach of contract and misrepresentation *1168 that do not require the special attention of a state court.[4]
The sixth factorwhether the state court proceeding will adequately protect the rights of the party seeking to avail itself of federal jurisdictionalso does not support abstention here. A & A argues that Smehlik's rights would be fully protected in state court, since there are only state law questions presented. The Second Circuit, however, has stated that "the possibility that the state court proceeding might adequately protect the interests of the parties is not enough to justify the district court's deference to the state action. This factor, like choice of law, is more important when it weighs in favor of federal jurisdiction." Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d at 328. Smehlik contends that the state court proceeding will not adequately protect his rights, because questions of law other than state law may apply, and because as a foreign citizen, he "needs the protection of our federal courts in light of the overreaching attempted by A & A, a New York corporation." It is not necessary to decide that Smehlik's assertions have merit to be able to conclude that the sixth factor fails to support abstention here.
In summary, none of the six factors usually considered by the courts in deciding whether to abstain under the Colorado River doctrine weighs significantly in favor of abstention in this case.
A & A makes one additional point that has some relevance. It characterizes this lawsuit as "classic reactive litigation," and maintains that "where ... a suit is `vexatious or reactive,' courts have repeatedly weighed such factor strongly against retaining federal jurisdiction" (citing Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 947 F.2d 529, 533 (1st Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1674, 118 L.Ed.2d 393 (1992); Interstate Material Corp. v. City of Chicago, 847 F.2d 1285, 1289 (7th Cir.1988); Allen v. Louisiana State Board of Dentistry, 835 F.2d 100, 105 (5th Cir.1988); Lumen Construction, Inc. v. Brant Construction Co., Inc., 780 F.2d 691, 693-694 (7th Cir.1985); Telesco v. Telesco Fuel and Masons' Materials, Inc., 765 F.2d 356, 363 (2d Cir.1985); Goerner v. Barnes, 730 F.Supp. 767, 770 (S.D.Tex.1990); DeVona v. City of Providence, 652 F.Supp. 683, 687-689 (D.R.I.1987); and Byer Museum of Arts v. North River Insurance Co., 622 F.Supp. 1381, 1386-1387 (N.D.Ill.1985)). The characterization of the action as "reactive" is based on the fact that it was commenced two weeks after the filing of A & A's complaint in state court, and on Smehlik's reference to it in his answer to A & A's state court complaint.
The commencement of a reactive or vexatious lawsuit may indeed weigh in favor of abstention. However, the cases cited by A & A all involve actions where (i) the plaintiff in the federal suit was also the plaintiff, or had filed counterclaims, in the state suit (i.e., was pursuing essentially identical claims in two forums), and/or (ii) there had been a history of contentious litigation or jurisdictional maneuvering. While it is clear that Smehlik brought this action in response to A & A's commencement of the state action, and he is admittedly seeking what he considers to be a favorable forum, he is not attempting to pursue his claims against A & A in both federal and state forums, and there is apparently no history of contentious litigation or jurisdictional maneuvering between the parties. Smehlik's filing of this suit was a legitimate alternative to filing a counterclaim in A & A's action against him in state court.[5], [6]
*1169 2. Venue
Smehlik argues that venue is proper in the Western District of New York pursuant to 28 U.S.C. § 1391. That section provides, in pertinent part, that:
(a) A civil action wherein jurisdiction is founded on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred....
....
(c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State....
28 U.S.C. § 1391(a), (c). A & A maintains (i) that its contacts with this district are insufficient for the court to find that it "resides" here for purposes of 28 U.S.C. §§ 1391(a)(1) and (c), and (ii) that none of the events or omissions giving rise to Smehlik's claims occurred here within the meaning of 28 U.S.C. § 1391(a)(2).
New York has more than one federal judicial district. Under 28 U.S.C. §§ 1391(a)(1) and (c), therefore, Smehlik's action may be brought in the Western District only if A & A's contacts with this district "would be sufficient to subject it to personal jurisdiction [here] if [the] district were a separate State." 28 U.S.C. § 1391(c). As an initial matter, I must decide how this language should be applied in practice. In some cases, district courts have looked first to the state's longarm statute as a basis for determining the sufficiency of the defendant's contacts with one of the districts of a multi-district state. See e.g., Zinn v. Gichner Systems Group, 1994 WL 116014 (E.D.Pa.1994); Walbro Automotive Corp. v. Apple Rubber Products, Inc., 1992 WL 251449 (S.D.N.Y.1992); Illinois Tool Works v. Rawlplug Co., 1990 WL 171601 (N.D.Ill.1990); Kobush v. American Suzuki Motor Corp., 1990 WL 13511 (W.D.Mo.1990). In other instances, however, courts have simply employed a due process analysis, without reference to state law. See, e.g., Bicicletas Windsor, S.A. v. Bicycle Corp. of America, 783 F.Supp. 781, 786 (S.D.N.Y. 1992) ("[i]n undertaking a jurisdictional analysis under 28 U.S.C. § 1391, courts apply federal law, not New York law,"); Benetton Manufacturing Corp. v. Ben-Acadia Ltd., 1989 WL 106473 (E.D.La.1989).
I am persuaded that the approach taken in Bicicletas Windsor and Benetton Manufacturing is correct. The text of 28 U.S.C. § 1391(c) makes it clear that in a state with more than one judicial district, venue is proper in any district in which a defendant corporation's contacts "would be sufficient to subject it to personal jurisdiction if that district were a separate State...." (emphasis added). It makes no reference to application of the statutory requirements for personal jurisdiction of the state in which the district is in fact situated. Since any state may legitimately exercise personal jurisdiction over a defendant to the extent that the defendant's contacts with the state are sufficient to comport with the requirements of due process, it follows that a simple due process analysis should be applied in assessing the sufficiency of a defendant's contacts with one of the districts in a multidistrict *1170 state pursuant to the second sentence of 28 U.S.C. § 1391(c).[7]
In Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), the Supreme Court made it clear that where a forum seeks to assert specific jurisdiction over an out-of-state defendant, due process requirements are satisfied if it is demonstrated that the defendant has established "minimum contacts" with the forum, and that the defendant's conduct and connections with the forum "are such that he should reasonably anticipate being haled into court there." Id. at 474, 105 S.Ct. at 2183 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980)). A defendant has fair warning that his activities may subject him to the jurisdiction of a foreign forum if he has "`purposefully directed' his activities at residents of the forum ... and the litigation results from alleged injuries that `arise out of or relate to' those activities." Id. at 472, 105 S.Ct. at 2182 (citations omitted). Jurisdiction may not be premised on contacts that are "`random,' `fortuitous,' or `attenuated,'" or are the result "of the `unilateral activity of another party or a third person.'" Id. at 475, 105 S.Ct. at 2183 (citations omitted). "Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a `substantial connection' with the forum." Id. (citations omitted). In such circumstances, the defendant may not avoid jurisdiction merely because he has not physically entered the forum:
[I]t is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted. So long as a commercial actor's efforts are "purposefully directed" toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.
Id. at 476, 105 S.Ct. at 2184. Finally, however, the court must consider "whether the assertion of personal jurisdiction would comport with `fair play and substantial justice.'" Id. (citing International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945)).
Under the provisions of the agreement between A & A and Smehlik, A & A was required to use its "best efforts" to secure an offer of a hockey contract for Smehlik from the Sabres. The record establishes that negotiations were conducted by a single A & A employee, Jay Grossman, the director of hockey operations for the firm. Negotiations took place between Grossman and Gerry Meehan, former general manager of the Sabres, in the summer of 1990, and further "periodic discussions" took place until A & A received notice from Smehlik that he wished to terminate his agreement with the firm in April 1992. Negotiations were conducted via telephone and fax; Grossman did not, however, travel to Buffalo to meet with Meehan to discuss Smehlik. In all, Grossman spoke on the telephone with Meehan about a dozen times concerning Smehlik.
I have no difficulty in finding that, under a due process analysis, these contacts "would be sufficient to subject [A & A] to personal jurisdiction if [this] district were a separate State," 28 U.S.C. § 1391(c), and that venue is therefore proper here. The agreement between A & A and Smehlik required A & A to purposefully direct its activities towards a resident of this district, the Sabres. A & A made numerous contacts with the Sabres, by telephone and fax, on behalf of Smehlik. Smehlik's alleged injuries are unquestionably related to those contacts, since his principal claim is that A & A failed to meet its obligation to use its best efforts to negotiate a contract with the Sabres on his behalf. The contacts were created by A & A itself, and were not in any sense "`random,' `fortuitous,' *1171 or `attenuated,'" or a result "of the `unilateral activity of another party or a third person.'" Burger King v. Rudzewicz, 471 U.S. at 475, 105 S.Ct. at 2183. A & A could reasonably have anticipated being haled into court in this district in an action relating to its contacts with the Sabres on behalf of Smehlik, and I find nothing unfair or unjust in requiring it to defend against Smehlik's claims here.
Since venue is proper in the Western District of New York under 28 U.S.C. §§ 1391(a)(1) and (c), I do not need to consider Smehlik's alternative argument that venue is also proper under 28 U.S.C. § 1391(a)(2).
3. Motion to Dismiss Count II
In Count II of the amended complaint, Smehlik alleges that in order to induce him to enter into the contract at issue in this case, A & A "misrepresented to plaintiff its abilities, capabilities and what it would do for plaintiff pursuant to the agreement so as to induce plaintiff to enter the agreement with it." More specifically, he alleges that on or about August 28, 1990, A & A's representative Carl Hron told him:
(1) that A & A could obtain a contract for him with the Sabres for the 1991/92 season;
(2) that it could "make a deal right away;"
(3) that it would arrange for him to participate in the Sabres' 1991 training camp; and
(4) that it would make all necessary arrangements to enable him to attend the Sabres' 1991 training camp, which required, inter alia, obtaining a release from his Czech hockey club, T.J. Vitkovice.
He alleges that these representations were made with the intent to deceive him, and to induce him to sign an agreement with A & A that he would not otherwise have signed. He maintains that he reasonably relied on the representations in deciding to sign the agreement. He asserts that A & A failed to obtain a contract with the Sabres for him for the 1991/92 season or to "make a deal right away," and that it failed to follow up on Hron's promises relating to his attendance at the Sabres' 1991 training camp. Finally, he alleges that A & A "misrepresented, concealed or failed to disclose material facts including that it either did not have sufficient knowledge and/or experience in dealing with Czechoslovak laws and practices and/or that if it had adequate knowledge and/or experience with respect to same, that it would fail to utilize same."
A & A has moved to dismiss Count II pursuant to Fed.R.Civ.P. 12(b)(6), on the grounds that Count II simply alleges that A & A made a false promise to perform under the contract, a promise which, it maintains, cannot, under New York law, convert a breach of contract claim into one for fraud. In response, Smehlik contends that the specific oral representations made by Hron, devised for the purpose of inducing him to enter into the agreement, included promises that went beyond A & A's general obligation under the written contract to "use its best efforts to secure offers" from the Sabres or other NHL clubs. He argues that under New York law, one who is fraudulently induced to enter into a contract may maintain a cause of action for fraud separate from his breach of contract cause of action, when the fraud allegations are, as he claims they are here, distinct from the breach of contract claim.
It is well established in the New York courts that when a plaintiff alleges both breach of contract and fraud, "[the] cause of action in fraud may be maintained where the allegations of wrongdoing are distinct from those giving rise to the breach of contract claim and relate to facts extraneous thereto." Steigerwald v. Dean Witter Reynolds, Inc., 107 A.D.2d 1026, 486 N.Y.S.2d 516, 518 (4th Dept.1985). A mere "promissory statement[] as to what will be done in the future" may give rise only to a breach of contract claim. See Stewart v. Jackson and Nash, 976 F.2d 86, 89 (2d Cir.1992) (citing Deerfield Communications Corp. v. Cheesebrough-Ponds, Inc., 68 N.Y.2d 954, 956, 510 N.Y.S.2d 88, 89, 502 N.E.2d 1003, 1004 (1986)). However, a false representation of a present fact may give rise to a separable claim for fraudulent inducement, id., and generally speaking, if a promise is "made with a preconceived *1172 and undisclosed intention of not performing it, it constitutes a misrepresentation of material existing fact" upon which an action for fraudulent inducement may be predicated. Id. (citing Sabo v. Delman, 3 N.Y.2d 155, 160, 164 N.Y.S.2d 714, 716, 143 N.E.2d 906, 908 (1957)). Thus, it is clear that a cause of action for fraudulent inducement may be sustained on the basis of an allegation that the defendant made a promise to undertake some action separate and apart from his obligations under the express terms of the contract, if it is also alleged that he made the promise with no intention of making good on that commitment.
What is much less clear is whether a cause of action for fraud may properly be sustained on the basis of an allegation that the defendant made a promise to perform under the express terms of the contract while intending not to abide by its terms. The New York courts are split on this issue. See Kenevan v. Empire Blue Cross and Blue Shield, 791 F.Supp. 75, 80 (S.D.N.Y.1992); Bower v. Weisman, 650 F.Supp. 1415, 1422-1423 (S.D.N.Y.1986). The Second Department has recently stated, for example, that where a fraud claim "is premised upon an alleged breach of contractual duties and the supporting allegations do not concern representations which are collateral or extraneous to the terms of the parties' agreement, a cause of action sounding in fraud does not lie." McKernin v. Fanny Farmer Candy Shops, Inc., 176 A.D.2d 233, 574 N.Y.S.2d 58, 59 (2d Dept.1991) (citing Mastropieri v. Solmar Construction Co., Inc., 159 A.D.2d 698, 553 N.Y.S.2d 187 (2d Dept.1990); Tuck Industries, Inc. v. Reichhold Chemicals, Inc., 151 A.D.2d 565, 542 N.Y.S.2d 701 (2d Dept.1989); Manshul Construction Corp. v. City of New York, 143 A.D.2d 333, 532 N.Y.S.2d 419 (2d Dept.1988); Edwil Industries, Inc. v. Stroba Instruments Corp., 131 A.D.2d 425, 516 N.Y.S.2d 233 (2d Dept.1987); Spellman v. Columbia Manicure Manufacturing Co., Inc., 111 A.D.2d 320, 489 N.Y.S.2d 304 (2d Dept.1985)). The First Department takes a similar approach. See Caniglia v. Chicago Tribune-New York News Syndicate, Inc., ___ A.D.2d ___, 612 N.Y.S.2d 146, 147 (1st Dept.1994) ("a cause of action does not lie where ... the only fraud alleged merely relates to a contracting party's alleged intent to breach a contractual obligation"); Comtomark, Inc. v. Satellite Communications Network, Inc., 116 A.D.2d 499, 497 N.Y.S.2d 371 (1st Dept.1986). On the other hand, the Third Department has recently held that "a party who is fraudulently induced to enter a contract may join a cause of action for fraud with one for breach of the same contract" where the misrepresentations alleged are "misstatements of material fact or promises [to perform under the contract] made with a present, albeit undisclosed, intent not to perform them." Shlang v. Bear's Estates Development of Smallwood, N.Y., Inc., 194 A.D.2d 914, 599 N.Y.S.2d 141, 142-143 (3d Dept. 1993); Bibeau v. Ward, 193 A.D.2d 875, 596 N.Y.S.2d 948, 950 (3d Dept.1993) (citing Deerfield Communications Corp. v. Cheesebrough-Ponds, Inc., 68 N.Y.2d 954, 510 N.Y.S.2d 88).
In its Rule 12(b)(6) motion, A & A asks that I first make a determination, from the face of the amended complaint and the written agreement between A & A and Smehlik,[8] that the oral statements allegedly made by Hron to Smehlik must be regarded as promises encompassed by the contractual arrangement between A & A and Smehlik. This I cannot do. The written contract required only that A & A use its "best efforts" on behalf of Smehlik. Whether or not A & A's "best efforts" would have encompassed the oral promises allegedly made by Hron is a matter of factual dispute.[9]
*1173 Even if I were able to find that Hron's representations were nothing more than promises to perform under the contract, I would not be able to grant A & A's motion because Smehlik has adequately pleaded an undisclosed intent by A & A not to perform, and there is a split in the New York case law as to whether or not a cause of action for fraud may be sustained under such circumstances. See supra. It is not "`beyond doubt that [Smehlik] can prove no set of facts in support of his claim which would entitle him to relief.'" Goldman v. Belden, 754 F.2d at 1065 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).
CONCLUSION
For the reasons given above, A & A's motions are denied. It is time now to move ahead with resolution of the substantive issues in this action. A telephone conference will be held with the parties on September 2, 1994, at 3 p.m., for the purpose of setting a schedule.
So ordered.
NOTES
[1] In a letter dated July 7, 1994, A & A informed the court that there is a possibility that two separate actions in the Supreme Court in New York County, involving Vladimir Vujtek, a hockey player formerly represented by A & A, and Rich Winter, the present agent of both Smehlik and Vujtek, might be consolidated with the Smehlik state court action. In a subsequent letter, dated July 13, 1994, it indicated that its state court action against Winter consists of a claim or claims for tortious interference with contractual relations, including, inter alia, the contracts between A & A and both Smehlik and Vujtek. It maintains that this lends support to its abstention motion, but it did not describe how the cases are related, or the extent to which the issues involved in the various actions may be the same.
[2] In this context, Smehlik argues that the claims he asserts here were raised as affirmative defenses, not counterclaims, in state court, and that since New York does not have compulsory counterclaims, he retains the right to assert his claims against A & A in a separate state or federal court action. He maintains that he should not be required to litigate his claims as counterclaims in A & A's state court action simply because he was "beaten to the courthouse door" by A & A, and that duplicative litigation could be easily avoided if A & A were to counterclaim in the present case, and drop its state court action. There is some merit in this position. Certainly, the fact that the litigation could be as easily consolidated in this court as in the state court weighs against relinquishing federal jurisdiction.
[3] Because I have withheld ruling on A & A's abstention motion until now, the question arises as to whether more progress has been made in state court than in this action in the interim, and whether continued litigation in this court would be duplicative of the progress already made in state court. Both parties have provided updates on the current status of the state court action. Evidently some discovery has been conducted, but no substantive issues have been decided. Since the state and federal court actions involve identical parties and issues, it is apparent that the fruits of the discovery conducted thus far could be used here to the same extent as they could in the state court action. As a result, I conclude that progress in the two actions has been essentially identical, and there is no reason to weigh such headway as has been made in state court in favor of abstention.
[4] Smehlik has also suggested that certain issues in this case may have to be determined on the basis of Czechoslovakian law.
[5] Smehlik claims that he would have removed A & A's action to federal court if he had had the right to do so, but since he had been sued for less than $50,000, there was no basis for removal. He points out that even if removal had been possible, the Supreme Court has stated that it "`never has intimated acceptance of [the] view that the decision of a party to spurn removal and bring a separate suit in federal court invariably warrants the stay or dismissal of the suit under the Colorado River doctrine'" (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 290, 108 S.Ct. 1133, 1144, 99 L.Ed.2d 296 (1988), in which the respondent had both filed a counterclaim to the petitioner's claim of breach of contract in state court and brought a separate action in federal court alleging breach of the same contract).
[6] A & A maintains that under the terms of its agreement with Smehlik, Smehlik consented to the jurisdiction of the courts of the State of New York in the event of dispute. My decision on the threshold issue of abstention cannot properly rest on the interpretation of a clause in an agreement whose validity is in dispute. I would note, however, that on its face, the language of the agreement does not preclude Smehlik from bringing an action for breach of the agreement in federal court, since it does not establish that he agreed that the courts of the State of New York should have exclusive jurisdiction over disputes.
[7] Of course, the state's jurisdictional statutes do come into play when a district court in a multi-district state makes an analysis of whether an out-of-state defendant may be subjected to personal jurisdiction in the state in which the court is located. The language of the second sentence of 28 U.S.C. § 1391(c) simply indicates that once it has been established that a defendant may be subjected to personal jurisdiction within the state, venue determinations may be made on the basis of a simple due process analysis.
[8] A & A's motion must be addressed on the face of the pleading, which is deemed to include any document incorporated in it by reference. Goldman v. Belden, 754 F.2d 1059, 1065-1066 (2d Cir.1985). Because the dispute in this action centers on the written agreement between the parties, which is referred to in the amended complaint and is in the record, I may properly consider its contents. See Furman v. Cirrito, 828 F.2d 898, 900 (2d Cir.1987); Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 113 (2d Cir.1982).
[9] In support of its motion to dismiss, A & A has submitted the affidavit of attorney Rodney Brown, which refers to, and attaches a copy of, Smehlik's answers to A & A's interrogatories in A & A's state court action against Smehlik. A & A maintains that Smehlik's response to paragraphs 6 and 7 of the interrogatories establishes that Smehlik understood Hron's oral representations to refer to services that A & A was to perform pursuant to the written agreement between Smehlik and A & A. Smehlik makes two arguments in response. First, he maintains that his interrogatory responses are consistent with his claim that Hron's oral promises were fraudulent misrepresentations as to things that would be done by A & A separate and apart from its obligations under the written agreement. Second, he observes that I may not consider the interrogatory responses without treating the motion as one for summary judgment under Rule 56, and argues that since he has not yet had the opportunity to conduct any substantive discovery in this action, summary judgment would be premature. I agree, at least with Smehlik's second point. To the extent that I consider matters outside the amended complaint, A & A's motion "`shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.'" Goldman v. Belden, 754 F.2d at 1066 (quoting Fed.R.Civ.P. 12(b)). I decline to consider the interrogatory responses at this time, and will not treat A & A's motion as one for summary judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261759/ | 861 F.Supp. 599 (1994)
Geneva L. DiMARCO, Plaintiff,
v.
MICHIGAN CONFERENCE OF TEAMSTERS WELFARE FUND, and MCTWF Board of Trustees, Defendants.
No. 93-CV-73067-DT.
United States District Court, E.D. Michigan, Southern Division.
August 18, 1994.
*600 *601 Thomas M. Lizza, Detroit, MI, for plaintiff.
Frank Locante, Milwaukee, WI, for defendant.
OPINION AND ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT
ROSEN, District Judge.
I. INTRODUCTION
This action stems from the denial of death benefits to Plaintiff Geneva DiMarco ("Plaintiff") by Defendant Michigan Conference of Teamsters Welfare Fund ("the Fund"). In her January 10, 1994 first amended complaint, Plaintiff alleges two causes of action. The first is a claim against the Fund for the death benefits under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). The second is against the Fund's Board of Trustees ("the Board") for an alleged breach of its fiduciary duties to Plaintiff. Count II arises under ERISA § 404(a), 29 U.S.C. § 1104(a).
The parties have filed cross-motions for summary judgment, and oral argument was heard on April 14, 1994. Having reviewed the pleadings and argument of the parties, the Court is now prepared to rule on the pending motions. This opinion and order sets forth that ruling.
II. FACTUAL BACKGROUND
The following facts of this case are undisputed. Plaintiff lived with Tom DiMarco for 29 years, although she and Mr. DiMarco never married. DiMarco Dep., p. 19. Mr. DiMarco worked for Western Waterproofing Company from 1968 until his death on November 15, 1989. Mr. DiMarco was a member of the International Brotherhood of *602 Teamsters, and, as such, was a participant in the Fund.[1]
The Fund was established pursuant to a trust agreement between the union and the employers/contributors. This trust agreement was last amended in March of 1985, and it specifically provides that the Board of Trustees is to both create and administer the plan. The trust agreement gives the Board the power to "establish Group Health, Accident and Death Benefit Plans, including in its discretion dependent coverages, which the Board deems adequate and actuarially sound." See Sharon Hooper's Dep. Ex. 5, p. 11.[2] The Board is also the named fiduciary of the plan.
The Fund provides health, disability, and death benefits pursuant to a master plan document, dated April 1, 1979. See Hooper Dep., Ex. 6. This master plan document, in turn, has been modified by changes set out in subsequent summary plan descriptions (SPDs).[3] As a participant, Mr. DiMarco should have received in 1983, 1986 and 1987 SPDs sent through first-class mail either to his home or to his place of employment for in-hand distribution. See Hooper Dep., pp. 55-59; Exs. 7 (1987), 12 (1983) and 13 (1986). See also Hooper Aff., pp. 1-2. These SPDs set out in detail the available benefits and claims procedures of the Fund.
While Plaintiff concedes that it was "highly possible" that Mr. DiMarco had in fact received such SPD booklets, she claims that she never saw them. DiMarco Dep., p. 9. Plaintiff also testified, however, that she understood the difference between the Fund's plan A and plan B for medical care. Id. at 8.[4] Moreover, she testified that she participated in the submission of "maybe" two claims for health care benefits under Mr. DiMarco's plan. Id. at 7. Fund records reveal that it received and paid a claim for optical services provided to Plaintiff on May 4, 1989. Hooper Dep., p. 70.
Mr. DiMarco's Fund identification card clearly indicates that Plaintiff is the named beneficiary for death benefits available under the Fund. Hooper Dep., Ex. 2. The death benefit is a $20,000.00 lump sum which is payable upon provision by the named beneficiary of a certified death certificate of the Fund participant. See Hooper Dep., p. 34; Ex. 7, p. 24 (1987 SPD);[5] Ex. 10, p. 6 (1991 SPD for death and disability benefits). Thus, it is undisputed that so long as Plaintiff provided a death certificate, she was entitled to the death benefits regardless of her marital status with Mr. DiMarco.[6]
Shortly after Mr. DiMarco's death in November of 1989, Plaintiff telephoned the local union office to which Mr. DiMarco was affiliated. Plaintiff testified:
Q. Did you make any inquiries of anybody as to what benefits were payable *603 on the event of Tom's death your husband's death? Pardon me.
* * * * * *
A. I call I'll be honest with you. I don't remember if it was a week, two weeks, whatever. I called Local 247.
Q. [By Defendants' counsel] 247?
A. Uh-huh, to health and welfare.
Q. Whom did you speak to, do you know?
A. No. It was a young lady. I don't know her name. I didn't ask, and she didn't volunteer. So, and I just told her that he had passed away and that what did I need to do, and she said I need to come down and bring a marriage license, and I believe she also said death certificate.
Q. And what did you do after that call?
A. Nothing. Like I said, I was sick, had the operation, and just didn't do anything.
* * * * * *
Q. [By Plaintiff's counsel] ... After your conversation with the young lady at the Local 247 within a few weeks after your husband's death was there any reason that you did not go down to the local office other than what you've already indicated?
A. Yes.
Q. And what reason was that?
A. Because I didn't have a marriage license.
Q. And the woman had indicated to you that you needed to bring a marriage license with you?
A. Yes.
DiMarco Dep., pp. 9-11, 30.
On December 26, 1989, the Fund sent to Plaintiff a notice of her rights under COBRA to continue health care coverage under Mr. DiMarco's plan. Plaintiff responded by declining the coverage on January 4, 1990. Hooper Dep., Ex. 1.[7] Sharon Hooper, Administrations Director for the Fund, testified that by waiving COBRA coverage, Plaintiff's address would have been taken off the mailing list to receive Fund SPDs. Hooper Dep., p. 54.
In the late summer of 1992, Plaintiff was experiencing difficulty in making ends meet, and she shared this problem with a Teamster friend, Dane Rich. Mr. Rich explained to her that she might be entitled to certain benefits from the Fund. He then provided her with a copy of the 1991 SPD packet. See DiMarco Dep., pp. 15-19.
Plaintiff for a while did nothing, but in the late fall she contacted her present counsel. On November 20, 1992, counsel sent in a claim for the $20,000 death benefit with an attached death certificate. The Fund responded on January 18, 1993, by denying Plaintiff's claim on the ground that it was untimely filed. See Hooper Dep., Ex. 4.
The Fund's decision to deny Plaintiff's claim hinged upon a two-year limitations period for filing claims found in the Fund documents. The 1987 SPD states: "A claim for any loss must be filed within 2 years after the date of such loss. This period may be extended at the discretion of the Fund, if reasonable cause for the delay can be provided." Hooper Dep., Ex. 7, p. 23. See also Hooper Dep., Ex. 12, p. 20 (1983 SPD); Ex. 13, p. 24 (1986 SPD). The 1991 SPD, for its part, states: "All claims for benefits must be filed within two (2) years after the date of the eligible expense or loss." Id., Ex. 11, p. 20.[8]
The SPDs indicate a method of appealing claim denials by the Fund. The 1991 SPD, *604 the one in effect at the time of the claim denial in the instant case, states:
If you do not agree with why your claim was denied, you may request that a review be made of your claim. Any request must be made within 60 days after receiving the denial and accompanied by documents or records in support of the appeal. The claim denial will include the name and address of the person you should write to for a review.
You may submit additional information with your request for review. You may request and receive copies of pertinent documents, although in some cases approval may be needed for the release of confidential information, such as medical records. You may submit issues and comments in writing.
A decision about the review will be made within 60 days following receipt of your request for the review. If additional information is needed from you, the decisions will be made within 60 days following receipt of the additional information. You will be notified in writing of the decision, with specific reasons for the decision.
Hooper Dep., Ex. 14, p. 13 (emphasis added). The 1983, 1986 and 1987 SPDs contain similar language. See id. at Ex. 7 (1987 SPD); Ex. 12 (1983 SPD); Ex. 13 (1986 SPD).[9]
Ms. Hooper testified that the body which hears appeals is the Fund Board of Trustees. Hooper Dep., p. 11. She further testified that the Board has at least on one occasion extended the two-year limitation period. Id. at 62.
Plaintiff has not appealed the denial of her claim to the Board of Trustees. However, the letter denying Plaintiff's claim did not make any mention of appeal rights or to whom an appeal should be addressed. See Hooper Dep., Ex. 4.
Plaintiff wrote two more letters to the Fund after her claim was denied. In those letters, dated February 1 and April 5, 1993, Plaintiff contested the Fund's two-year limitation period for filing claims and demanded "copies of all policies of insurance, beneficiary designations, certificates, by-laws, rules and regulations which relate in any way to the death benefits that were due upon the death of Thomas DiMarco." See Plaintiff's Brief, Ex. C. When the Fund failed to respond to these letters, Plaintiff initiated suit on June 30, 1993.
III. ANALYSIS
A. THE STANDARDS GOVERNING CONSIDERATION OF A MOTION FOR SUMMARY JUDGMENT.
Summary judgment is proper "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 the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
*605 Three 1986 Supreme Court decisions Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ushered in a "new era" in the standards of review for a summary judgment motion. These cases, in the aggregate, lowered the movant's burden on a summary judgment motion.[10] According to the Celotex Court:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof.
Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.
After reviewing the above trilogy, the Sixth Circuit established a series of principles to be applied to motions for summary judgment:
[*] Cases involving state of mind issues are not necessarily inappropriate for summary judgment.
[*] The movant must meet the initial burden of showing "the absence of a genuine issue of material fact" as to an essential element of the non-movant's case.
[*] This burden may be met by pointing out to the court that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case. * * *
[*] The respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment."
[*] The trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact.
[*] The trial court has more discretion than in the "old era" in evaluating the respondent's evidence. The respondent must "do more than simply show that there is some metaphysical doubt as to the material facts." Further, "[w]here the record taken as a whole could not lead a rational trier of fact to find" for the respondent, the motion should be granted. The trial court has at least some discretion to determine whether the respondent's claim is "implausible."
See Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989) (footnotes with citations omitted). The Court will apply the above principles in deciding the cross-motions for summary judgment.
B. COUNT I SHOULD BE DISMISSED.
1. The Parties' Arguments.
In Plaintiff's motion for summary judgment on Count I, she argues first that her claim is timely because the six-year statute of limitations for state contract actions should apply to her claim for death benefits. Second, Plaintiff argues that her case should not be dismissed for failure to make an appeal to the Fund's Board because she was not informed of this appeal process and because such an appeal in any case would be futile. Third, Plaintiff argues that the Fund should be equitably estopped from relying upon the two-year limitation period in the SPD. Plaintiff asserts that the Fund should have specifically informed her of her beneficiary status and of the two-year limitations period for making claims. In addition, Plaintiff argues that the incorrect information the union local employee gave to her regarding the need for a marriage license to get death benefits kept her from making a timely claim.[11]
*606 The Fund responds to this motion by asserting first that the six-year contract limitation period on which Plaintiff relies applies only to benefit recovery actions under ERISA § 502, not to claims filed with a pension or welfare fund. The Fund argues second that an appeal to the Board of Trustees would not have been futile because it has extended the two-year limitation period on at least one occasion. Third, the Fund asserts that it was under no duty to inform Plaintiff that she was a beneficiary of Mr. DiMarco's death benefits or to describe to her the procedures that she needed to follow to claim such benefits. Similarly, the Fund argues that it should not be estopped from relying upon the two-year limitation period because of the marriage license statement of someone who was not a Fund agent. The Fund also asserts that even if the misrepresentation were made by a fund employee, "federal law prohibits the application of estoppel principles to a multi-employer employee benefit plan such as [the Fund]."
In its own motion for summary judgment, the Fund urges dismissal because Plaintiff failed to exhaust her administrative remedies before bringing suit. The Fund also argues that the two-year limitation period bars her claim. Plaintiff countered these arguments by asserting that the exhaustion requirement is discretionary, and by urging once again the applicability of the six-year limitations period for contract actions.
2. It Is Inappropriate To Require Plaintiff To Exhaust Her Administrative Remedies.
The Sixth Circuit has held that it is within a trial court's discretion to determine whether to apply an exhaustion requirement to a claim for ERISA benefits. See Baxter v. C.A. Muer Corp., 941 F.2d 451, 453-54 (6th Cir.1991). Exercising its discretion, this Court believes that it would be inappropriate to dismiss Plaintiff's case because she failed to appeal her claim denial to the Fund's Board of Trustees.
The Court reaches this conclusion because it believes it is unfair to require Plaintiff to follow the terms of the plan when the Fund has failed to do so. The master plan document states that a claim denial should contain a description of the claims review procedure and notification of the right to appeal. See, supra n. 9. Similarly, the SPD in effect at the time Plaintiff should have appealed her claim denial states that the denial is to contain the name and address of the person to whom the appeal should be directed. See, supra p. 7. The Fund complied with neither of these provisions in its January 18, 1993 claim denial letter. Moreover, the Fund failed to comply with Plaintiff's reasonable request for all plan documents. See ERISA § 104(b)(4), 29 U.S.C. § 1024(b)(4). Thus, even though Plaintiff had a copy of the 1991 SPD which contained information on appeal procedures, the Court will not bind Plaintiff to these procedures.
3. The Two-Year Limitation On Filing Claims Found In The SPD Is Valid And Enforceable.
Although the Fund is wrong that this is a case in which the Court should apply the exhaustion requirement, it is absolutely correct that the two-year limitation period for claims contained in the Fund's plan documents is valid and enforceable. First, despite Plaintiff's protestations to the contrary, no court has held that a state's limitation period for breach of contract actions applies to anything but actions challenging benefit denials under ERISA § 502, 29 U.S.C. § 1132. See, e.g., Meade v. Pension Appeals & Review Comm., 966 F.2d 190, 194-95 (6th Cir.1992). Instead, ERISA has left it largely to those who create and maintain a welfare plan to determine the contents of the plan, including the claims procedures.
In Musto v. American General Corp., 861 F.2d 897 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1745, 104 L.Ed.2d 182 (1989), the Sixth Circuit determined that an employer could amend its health care plan without violating ERISA's fiduciary duties. The court noted:
There is a world of difference between administering a welfare plan in accordance with its terms and deciding what those terms should be. A company acts as a fiduciary in performing the first task, but not the second. As this court, speaking through Judge Celebrezze, declared in Moore v. Reynolds Metal Co. Retirement Program, 740 F.2d 454, 456 (6th Cir.1984), *607 "[n]either Congress nor the courts are involved in either the decision to establish a plan or in the decision concerning which benefits a plan should provide. In particular, courts have no authority to decide which benefits employers must confer upon their employees; these are decisions which are more appropriately influenced by forces in the marketplace and, when appropriate, by federal legislation."
Musto, 861 F.2d at 911. See also Pope v. Central States, Southeast & Southwest Areas Health & Welfare Fund, 27 F.3d 211 (6th Cir.1994) (holding that multiemployer welfare plans do not breach fiduciary duties when amending a plan to preserve its financial integrity).
The Sixth Circuit teaches, then, that courts in this district are to give effect to the determinations of the scope of an ERISA plan's benefits so long as they do not run afoul of any specific provision of the statute. Plaintiff has not cited, nor has this Court found, any provision in the statute, regulations, or case law which would bar a two-year limitation period for filing claims with the Fund. See, e.g., 29 C.F.R. § 2560.503-1 (requiring an ERISA plan only to establish a "reasonable" claim filing procedure). Indeed, even applying general fairness considerations, such a period of time appears more than ample for plan participants and beneficiaries to assert their rights under the plan.
Because the Court finds that the two-year limitation period for filing claims is valid and enforceable, any benefit denial claim Plaintiff has against the Fund must presumptively fail by virtue of the fact that she did not file her original claim with the Fund within two years of Mr. DiMarco's death. Plaintiff may still, however, prevail if the Court finds some equitable reason to prohibit the Fund from relying upon this period. It is to this issue the Court will now turn.
4. As A Matter Of Law, Plaintiff Is Not Entitled To An Award Of Benefits Because The Fund Did Not Provide Her With Notice Of Her Beneficiary Status Or Of The Limitation Period.
Plaintiff suggests that the Fund's alleged failure to comply with ERISA's notice and disclosure requirements by not informing her of her beneficiary status and of the two-year limitation should equitably estop the Fund from relying upon the filing period to deny her claim for benefits. As set forth below, the Court does not believe that the Plaintiff can recover under this theory given the governing Sixth Circuit law.
The Sixth Circuit has recognized that equitable estoppel may sometimes apply to ERISA cases. See Tregoning v. American Community Mut. Ins. Co., 12 F.3d 79, 83 (6th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1832, 128 L.Ed.2d 461 (1994). In order to invoke equitable estoppel, a plaintiff must show the following:
1) conduct or language amounting to a representation of material fact;
2) awareness of the true facts by the party to be estopped;
3) an intention on the part of the party to be estopped that the representation be acted on, or conduct toward the party asserting the estoppel such that the latter has a right to believe the former's conduct is so intended;
4) unawareness of the true facts by the party asserting the estoppel; and
5) detrimental and justifiable reliance by the party asserting the estoppel on the representation.
12 F.3d at 83.
With respect to Plaintiff's disclosure claims, she cannot make out the elements of estoppel. There simply was no representation by the Fund regarding her beneficiary status or the two-year limitation. Rather, there was an alleged failure to provide proper notice to her.
The Court also believes that Plaintiff cannot invoke any other legal theory which would permit her to recover Mr. DiMarco's death benefit based on the fact that the Fund did not inform her of her beneficiary status. Plaintiff does not cite, nor has this Court found, any express statutory or regulatory *608 provision mandating that the Fund inform Plaintiff that she was Mr. DiMarco's death benefit beneficiary. Indeed, Plaintiff appears to concede this point, and argues instead that such an obligation arises from the common law fiduciary duties of the Fund's Board of Trustees which have been read into the statute. The Court will address this argument later in the opinion.
Turning now to the two-year limitation period, the Court is uncertain whether the Fund violated ERISA's notice and disclosure provisions at any time prior to the 1993 request for documents by Plaintiff's counsel. ERISA §§ 101(a) and 104(b), 29 U.S.C. §§ 1021(a) and 1024(b), require that a plan administrator provide a copy of the plan SPD which in this case would have included the two-year limitation period "to each participant[[12]] covered under the plan and to each beneficiary[[13]] receiving benefits under the plan."
It is unclear from the language of the statute and the unique facts of this case whether Plaintiff falls within the category of "beneficiaries receiving benefits," and thus, whether she was ever entitled to an SPD of her own.[14] On the one hand, it is true that she never received death benefits under the plan, and, therefore, it is questionable as to whether she falls within the statutory classification of eligible recipients for SPDs as being a "beneficiary receiving benefits." On the other hand, factually she had received health benefits at least once from the Fund's SO(A) plan, the same plan which provides the death benefits at issue. Thus, in one sense, she had been "receiving benefits under the plan."
Turning to principles of statutory construction, there seems to be at least an ambiguity in the statutory language "beneficiary receiving benefits" itself. In the first instance, the language requiring disclosure of an SPD does so by entitling "beneficiaries receiving benefits" to receipt of an SPD. However, the definition of "beneficiary" clearly includes not only those presently entitled to a benefit under the plan, but also those who may become entitled to a benefit under a plan.
Clearly, a designated beneficiary of a one-time death benefit, such as Plaintiff, falls within the statutory definition of "beneficiary." Under that definition, a person becomes a beneficiary under this definition at the time she is designated by the participant, because she "may be entitled to a benefit," i.e., upon the death of the participant, she will receive a benefit if she remains a designated beneficiary. Even if there were any doubt about this reading of the definition, at the very least a designated beneficiary of a death benefit program most certainly becomes a "beneficiary" within the statutory definition immediately upon the death of the participant because she is then "entitled to a benefit."
The question, then, is how to reconcile the provisional language of "beneficiary receiving benefits" with the definitional language of "beneficiary." If one were to read "receiving benefits" as modifying "beneficiary" in the disclosure statute i.e., limiting the class of beneficiaries entitled to receive SPDs then those persons who, like Plaintiff, are prospective death benefit beneficiaries within the definition of "beneficiary" would be entirely read out of the disclosure provision. As a result, they would not be entitled to receive SPDs, even if their entitlement to receive benefits had already been triggered by the death of the participant. Although this might, perhaps, make sense with respect to other benefits available under ERISA pension *609 or welfare plans, it makes no sense in the context of one-time death benefits because there would be literally no circumstances under which a designated death benefit beneficiary would be entitled to an SPD before the actual payment of the benefit. Such a beneficiary would not be "receiving benefits" until the death benefit is paid after which point, provision of an SPD would be virtually meaningless given that the purpose of an SPD is to inform beneficiaries or prospective beneficiaries of their rights under the plan and the procedures to follow to obtain benefits in the first place.
The Court believes that the only way to reconcile the statutory language in the context of one-time death benefits is to accept the broader meaning of the term "beneficiary," and to include death benefit beneficiaries designated by participants among those persons entitled to their own SPDs from the point at which these beneficiaries become entitled to benefits, i.e., upon the death of the participants.
The Court is convinced that any other approach would frustrate the Congressional intent underlying the disclosure provisions.[15] As the Court has noted, once a beneficiary receives a one-time death benefit, he would not need an SPD, even though under a reading of the term "beneficiary receiving benefits" which stresses the "receiving benefits" portion, that would be the first time he was eligible for one. When one considers that the key purpose behind ERISA's notice and disclosure provisions is to inform participants and beneficiaries of how they can exercise their rights under a plan, it seems more consistent with the underlying legislative intent to require a welfare fund to provide an SPD spelling out plan procedures to one-time death benefit beneficiaries after it has notice that the participant has died.[16] Of course, if, after the welfare fund has sent out an SPD addressed to the beneficiary, that beneficiary still fails to timely process his claim, the fund need not pay his benefits.[17]
However, the foregoing analysis does not end the inquiry. Even though the Court has found that there was a duty to provide Plaintiff with an SPD of her own once Mr. DiMarco died, the Court finds that Lewandowski v. Occidental Chem. Corp., 986 F.2d *610 1006 (6th Cir.1993), forecloses the possibility of awarding benefits because of violations of ERISA's notice and disclosure provisions. In Lewandowski, plaintiff was the wife of a participant in the defendant employer's (Occidental's) pension plan. Mr. Lewandowski failed to select a benefit option in which his wife would still receive a pension payment even if he died prior to reaching age 65. Unfortunately, Mr. Lewandowski did pass away before turning 65. As a result, plaintiff was not entitled to any pension benefits following his death. She brought suit alleging, inter alia, that Occidental's apparently undisputed failure to provide her and her husband with plan documents caused him to fail to select the survivor benefit package because he was unaware of the plan terms. Plaintiff apparently sought the benefits that she would have received had Mr. Lewandowski selected the survivor benefit package. 986 F.2d at 1007-08.
The Sixth Circuit rejected plaintiff's claim that a cause of action for benefits arose from Occidental's failure to comply with ERISA's notice and disclosure provisions. After reviewing conflicting precedent, the court concluded:
Courts considering the issue rightly have refused to create a blanket ground for recovery not provided in ERISA, either by precluding any damage award or limiting such an award to the most egregious of circumstances. As the ... court [in Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1170 (3d Cir.1990),] theorized, ERISA's remedial scheme presents a detailed, reasoned compromise between plan participants' need for adequate disclosure and the disincentives expansive liability for nondisclosure might present to employers considering institution of a retirement plan. Nothing in § 1132 suggests that a plan beneficiary should receive a benefit award based on a plan administrator's failure to disclose required information. Rather, as the Hozier court held, § 1132(c) acts as an affirmative limit on possible remedies.[[18]] Because plaintiff seeks recovery expressly based on defendant's failure to follow ERISA procedures, she may not recover.
986 F.2d at 1009-10.
This Court reads Lewandowski to hold that a beneficiary's remedies for a breach of ERISA's notice and disclosure requirements are limited to § 502(c) of the statute, 29 U.S.C. § 1132(c). In the instant case, however, none of the provisions in § 502(c) call for penalties for a plan administrator's failure to supply notice to a death beneficiary of her beneficiary status, to supply notice of a two-year limitations period for making claims, or even to supply an SPD (until it was requested by the participant or beneficiary).
Thus, even if this Court were to hold that the Fund did breach a duty to disclose to Plaintiff her beneficiary status and the existence of a two-year filing period for claims, Lewandowski would still bar her from recovering the $20,000 death benefit or any statutory penalties for those violations. If Plaintiff would be unable to recover in a direct action under this theory, the Court does not see how a failure to comply with ERISA's procedural requirements should estop the Fund from relying upon its two-year limitation period for filing claims. Plaintiff's estoppel argument based on the Fund's alleged noncompliance with its disclosure duties, therefore, must fail.
*611 The Court should add, however, that although ERISA § 502(c)'s sanction provisions do not include penalties for the specific violations alleged by Plaintiff in her complaint, she may nonetheless have a claim under this section for the Fund's failure to respond to her counsel's February 1 and April 5, 1993 requests for plan documents. Section 502(c)(1) states:
Any administrator ... who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the Court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the Court may in its discretion order such other relief as it deems proper.[[19]]
29 U.S.C. § 1132(c)(1). Moreover, ERISA § 104(b)(4), 29 U.S.C. § 1024(b)(4), states:
The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies. The Secretary may by regulation prescribe the maximum amount which will constitute a reasonable charge under the preceding sentence.
It is undisputed that the Fund did not comply with the requests by Plaintiff's counsel for various plan documents until Plaintiff initiated this action on June 30, 1993. Thus, under the statutes quoted above, Plaintiff appears to have a claim for statutory penalties of up to $100 a day from the date of her counsel's first request for these documents (plus 30 days) until they were provided in discovery. See Bartling v. Fruehauf Corp., 29 F.3d 1062, 1069-1069 (6th Cir.1994).
Plaintiff, however, has not pled a claim under § 502(a)(1)(A), 29 U.S.C. § 1132(a)(1)(A), which permits recovery of the penalties set out in § 502(c), so this issue is not formally before the Court. Nonetheless, the Court would consider a second motion to amend Plaintiff's complaint to conform to the evidence of record and, thereby, to add this claim should Plaintiff decide to pursue this matter. If Plaintiff does move to amend her complaint and the Court grants such amendment, the Court may then request further briefing from the parties on this issue.
5. The Fund Should Not Be Equitably Estopped From Relying Upon The Two-Year Limitation Period Because Of The Misstatement Made By The Union Local Employee.
The Court also believes that no material issues of fact exist on whether the Fund should be equitably estopped from relying upon the two-year limitation period because of the misrepresentation made by the person at Local 247 regarding the need for Plaintiff to have a marriage license to claim benefits available upon Mr. DiMarco's death. As noted *612 above, in order to demonstrate estoppel, Plaintiff must show that the Fund made a material misrepresentation and that she justifiably relied upon it. Plaintiff can do neither.
Plaintiff contends that the person at Local 247 who informed her that she would need a marriage license as well as a death certificate to claim death benefits was an agent of the Fund. The Fund counters that the Local 247 employee had no authority from the Fund to administer or explain the terms and conditions of its welfare plan. Indeed, the SPDs specifically state that the Fund should be contacted with any death benefit questions or claims.[20]
Plaintiff has failed to come forward with any evidence that Local 247 was acting with even apparent authority to bind the Fund. See General Elec. Co. v. G. Siempelkamp GmbH & Co., 809 F.Supp. 1306, 1310 (S.D.Ohio 1993) ("Apparent agency requires a showing that the principal held the agent out to the public as possessing sufficient authority to perform the particular act in question...."); Liberty Heating & Cooling, Inc. v. Builders Square, Inc., 788 F.Supp. 1438, 1445 (E.D.Mich.1992) ("A principal is vicariously liable for the torts of its agents when the agent acts within the scope of his usual employment or the principal has cloaked the agent with apparent authority."), ap. dismissed, 968 F.2d 1215 (6th Cir.1992). Without some sort of showing that the Fund took steps which gave to Local 247 the appearance of authority if not actual authority with respect to administering or explaining the Fund's death benefits, the Court cannot hold that equitable estoppel should apply to the comments made by one of Local 247's employees.
Moreover, the Court does not believe that a reasonable jury would conclude that Plaintiff's reliance on the comment was justifiable under the circumstances. Plaintiff did not take any steps to follow up on the phone call. She did not even explain her special situation as a de facto, if not de jure, wife to the person she spoke with at Local 247. By her own testimony, Plaintiff was too preoccupied with other matters to pursue possible benefits she was entitled to as a result of Mr. DiMarco's death. In these circumstances, the Court does not believe equitable estoppel should apply to bar the Fund from relying upon its two-year limitations period for death benefit claims.
Because the Court is not persuaded that any material issues of fact exist with respect to Plaintiff's § 502(a)(1)(B) claim for death benefits and that the Fund is entitled to judgment as a matter of law, it will dismiss Count I of Plaintiff's complaint.
C. COUNT II SHOULD BE DISMISSED.[21]
1. The Board Should Be Named A Defendant.
As an initial matter, the Court notes that although Count II claims that the Board of Trustees violated its fiduciary duties, the Board has not been named a party to this action. Because the Court and parties inadvertently overlooked this fact when Plaintiff amended her complaint to add the fiduciary claim, the Court hereby orders that the Fund Board of Trustees be joined as a Defendant.
2. The Parties' Arguments.
Plaintiff argues that the Board violated its fiduciary duties to her by implementing a *613 two-year limitation period, by failing to notify Plaintiff of her entitlement to death benefits, and by making a misrepresentation, through one of its agents, concerning the need for a marriage license to qualify for benefits.[22] The Board counters that fiduciary duty analysis does not apply to the limitation period, and that the Board disclosed to Plaintiff all that it legally should have disclosed.
3. Plaintiff's Claim For Breach Of Fiduciary Duties Must Fail.
ERISA § 404(a)(1) outlines the duties owed by fiduciaries:
[A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and
(A) for the exclusive purpose of:
(i) providing benefits to participants and beneficiaries; and ...
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims ...
29 U.S.C. § 1104(a)(1).
Much of what has been said above governs the application of this statute to the instant case. With respect to the limitation period itself, the Sixth Circuit has already held in Musto v. American General Corp., supra, that the entity that creates the terms of a plan does not act in a fiduciary capacity when it so establishes those terms. Moreover, and alternatively, the Court has found that the two-year limitation period for filing claims in the plan is reasonable. Thus, the Board did not breach its fiduciary duties by enacting the limitation period.
Turning to the misrepresentation made by the employee at Local 247 with whom Plaintiff spoke, the Court notes that the Sixth Circuit has held that misrepresentations by plan fiduciaries does constitute a breach of fiduciary duty. See Drennan v. General Motors Corp., 977 F.2d 246, 251-52 (6th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2416, 124 L.Ed.2d 639 (1993); Berlin v. Michigan Bell Tel. Co., 858 F.2d 1154, 1163 (6th Cir.1988). This is of no use to Plaintiff, however, because, as the Court has already found, the Local 247 employee was not an agent, apparent or otherwise, of the Fund. Thus, any misrepresentation made by her does not make the Board liable.
Plaintiff further asserts that the Board of Trustees had a duty to notify her of her beneficiary status. Plaintiff cites Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U.S. 559, 105 S.Ct. 2833, 86 L.Ed.2d 447 (1985), in support of her argument that the Board should have so informed her. Central States, however, is inapposite to the instant case.
In Central States, the question was whether a pension plan's trustees could perform an audit of contributing employers to determine which of their employees were participants in the plan in order to ensure that the employers were making the proper contributions to the plan. 472 U.S. at 561-65, 105 S.Ct. at 2836-37. The U.S. Supreme Court held that the clear terms of the governing trust agreement and the policies of ERISA permitted such an audit. 472 U.S. at 581, 105 S.Ct. at 2846. Thus, Central States is easily distinguished from this case on the facts.
Plaintiff, however, relies on some dicta found in the opinion explaining the common law of a trustee's duties to support her argument that the Fund had an obligation to inform her that she was a death benefit beneficiary:
ERISA clearly assumes that trustees will act to ensure that a plan receives all funds to which it is entitled, so that those funds can be used on behalf of participants and beneficiaries, and that trustees will take steps to identify all participants and beneficiaries, so that the trustees can make *614 them aware of their status and rights under the trust's terms.
One of the fundamental common-law duties of a trustee is to preserve and maintain trust assets, [G. Bogert & G. Bogert, Law of Trusts and Trustees] § 582, at 346, and this encompasses "determin[ing] exactly what property forms the subject-matter of the trust [and] who are the beneficiaries." Id., § 583, at 348 (footnotes omitted). The trustee is thus expected to use reasonable diligence to discover the location of the trust property and to take control without "unnecessary delay." Id., at 355. A trustee is similarly expected to "investigate the identity of the beneficiary when the trust documents do not clearly fix such party" and to "notify the beneficiaries under the trust of the gifts made to them." Id., at 348-49, n. 40.
472 U.S. at 571-72, 105 S.Ct. at 2841 (footnote omitted).
The Court does not read this passage, however, to mandate that a employee benefit fund inform all beneficiaries of the benefits to which they may be entitled. Indeed, in describing the specific provisions of ERISA, the Supreme Court noted that generally only participants must receive this information:
The provisions of ERISA make clear that a benefit plan trustee is similarly subject to these responsibilities, not only as a result of the general fiduciary standards of loyalty and care, borrowed as they are from the common law, but also as a result of more specific trustee duties itemized in the Act. For example, the Act's minimum reporting and disclosure standards require benefit plans to furnish all participants with various documents informing them of their rights under the plan, see, e.g., 29 U.S.C. §§ 1021, 1022, 1024(b), a task that would certainly include the duty of determining who is in fact a plan participant.
472 U.S. at 572, 105 S.Ct. at 2841 (footnotes omitted; emphasis added).
Moreover, in concluding its discussion of ERISA fiduciary duties, the Supreme Court reiterated the point that the statute mandates that information be given generally only to plan participants:
Both the concern for fully informing plan participants of their rights and status under a plan and the concern for assuring the financial integrity of the plans by determining the class of potential benefit claimants and holding employers to the full and prompt fulfillment of their contribution obligations are proper and weighty within the framework of ERISA.
472 U.S. at 574, 105 S.Ct. at 2842 (emphasis added).
In short, this Court views the language in Central States upon which Plaintiff relies to be dicta which does not add to the statute the duty, fiduciary or otherwise, that death benefit beneficiaries be informed of their present or future status under the plan. Plaintiff does not cite, nor has the Court found, any case which has so construed Central States, and the Court declines the opportunity today to create such a rule.
The Court draws support for the conclusion that the Board was under no fiduciary duty to inform Plaintiff of her beneficiary status from Maxa v. John Alden Life Ins. Co., 972 F.2d 980 (8th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1048, 122 L.Ed.2d 357 (1993). In that case, plaintiff argued that the insurance company administering decedent's medical plan breached its ERISA fiduciary duties by not informing decedent on his sixty-fifth birthday that his benefits would be reduced and that he should enroll in Medicare or some other coverage. Maxa rejected the argument, noting that "the great majority of courts, however, have not imposed upon an ERISA plan fiduciary the duty individually to notify participants and/or beneficiaries of the specific impact of the general terms of the plan upon them." 972 F.2d at 985. The Maxa court went on to quote favorably a district court's reasoning for this rule:
The rationale for this holding is that fiduciaries should be able to rely upon the detailed and uniform guidance ERISA provides with regard to disclosure requirements rather than bearing the practically impossible burden of anticipating, and comprehensively addressing, the individualized concerns of thousands of employees, especially without notice of those concerns. *615 972 F.2d at 986, quoting Childers v. Northwest Airlines, 688 F.Supp. 1357, 1361 (D.Minn.1988) (emphasis added in Maxi). See also Stahl v. Tony's Bldg. Materials, Inc., 875 F.2d 1404, 1409-10 (9th Cir.1989) (fund had no duty to inform plaintiff that the expiration of a collective bargaining agreement would put his past service credits in jeopardy when SPD adequately explained this fact).
Maxa is instructive in that it held that it is inappropriate to read into an already detailed disclosure scheme the requirement that plan fiduciaries notify beneficiaries of their individualized circumstances. The Court believes that this same reasoning should apply here. Absent additional guidance from Congress or the courts on this issue, the Court is simply unwilling to shift the duty to inform an individual beneficiary of his beneficiary status from its natural locus, the benefactor, to an ERISA welfare fund. In other words, the Court does not believe that the Board should bear the cost of the lack of communication between Plaintiff and Mr. DiMarco. The Court, therefore, rejects Plaintiff's argument that the Fund was the party responsible for informing her that she was his death benefit beneficiary.
Moreover, even if the Court were to find that the Fund had a fiduciary duty to disclose her beneficiary status to her, it does not believe that the breach of this alleged duty was the cause of the untimeliness of her claim. Plaintiff's own testimony indicates that she was aware, or made aware, that she was entitled to some, albeit unspecified, benefits based upon Mr. DiMarco's death at the time she called Local 247. In one of her briefs, Plaintiff conceded that she "contacted the Teamsters Local 247 office and inquired about the procedure required to claim death benefits, of which she presumed she was the beneficiary." See Plaintiff's January 7, 1994 Brief, p. 2. The record, therefore, indicates that Plaintiff already had actual knowledge that she was Mr. DiMarco's beneficiary for any death benefits that he may have had forthcoming. Lack of notice of her status, then, could not have been the cause of her failure to pursue these benefits.
Finally, as noted above, this Court believes that even assuming that there was a duty, fiduciary or otherwise, on the part of the Board of Trustees to notify Plaintiff of her beneficiary status, Lewandowski limits any possible recovery for failure to comply with the ERISA notice and disclosure requirements to the circumstances and remedies spelled out in § 502(c). Because none of those specified circumstances are present in the Board's failure to inform Plaintiff of her beneficiary status, she is not entitled to an award of benefits.[23]
IV. CONCLUSION
In the end, Plaintiff's reasons for not receiving Mr. DiMarco's death benefits were not the result of any legally cognizable error by the Fund or its Board, but, rather, were caused by her own failure to exercise her rights and an unfortunate misrepresentation by a non-agent of the Fund. While the Court sympathizes with Plaintiff's plight, it has no legal basis upon which to grant the relief she has requested so far.
For the foregoing reasons, then,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants' motions for summary judgment are GRANTED. Plaintiff's motion for summary judgment is DENIED.
IT IS FURTHER ORDERED that before dismissing the case, the Court will permit Plaintiff 30 days after the entry of this order to file a motion to amend her complaint to allege a claim under ERISA § 502(a)(1)(A), 29 U.S.C. § 1132(a)(1)(A) for the penalties available under § 502(c)(1) as a result of the Fund's failure to timely respond to her counsel's February 1 and April 5, 1993 requests for plan documents.
NOTES
[1] Specifically, Mr. DiMarco was a member of the SO(A) plan. The meaning of these letters is unexplained throughout the record.
[2] Sharon Hooper is Administrations Director of the Fund. Hooper Dep., p. 7.
[3] This is the Court's reading of which documents govern Fund administration. The Fund has stated in its Count I summary judgment brief that the last publication of a full plan document was in 1979. See Fund's Count I Brief, p. 2. Ms. Hooper testified that there have been subsequent changes in the plan which sometimes necessitated the issuance of new SPDs. Id. at 59-60. Putting these two facts together, it appears that the plan documents at any given time are the 1979 master plan document plus the then-current SPD.
[4] According to the 1987 and 1991 SPDs, Plan A gives participants and beneficiaries more comprehensive coverage provided by a limited number of enrolled physicians. Plan B offers a lesser range of benefits, but participants and beneficiaries can choose their own health care providers. See Hooper Dep., Ex. 7, p. 5; Ex. 14, p. 3.
[5] Importantly, with respect to claiming death benefits, the 1987 SPD states: "If you die ... your beneficiary should contact the Fund office in order to initiate a claim.... A Member Service Representative at the Fund office will discuss with ... your beneficiary any statements which may be needed and will process the claims forms for payment." Hooper Dep., Ex. 7, p. 28. The 1983, 1986 and 1991 SPDs contain identical or similar language. See id., Ex. 12, p. 25 (1983); Ex. 13, p. 29 (1986); Ex. 11, p. 20 (1991).
[6] It appears that the earliest that Plaintiff knew she needed to submit only a death certificate to receive death benefits was when her counsel filed her claim on November 20, 1992. See Hooper Dep., Ex. 1 (Original Complaint, Ex. C.).
[7] Plaintiff does not allege that Defendants failed to comply with any part of COBRA.
[8] The 1979 master plan document states the following with respect to filing claims:
Proof of Loss Claim Forms Written proof of loss shall be furnished within 90 days after the date of such loss in accordance with requirements established by the Trustees. Claim forms for submission of proof of loss shall be made available to the Employee by the Welfare Fund. In no instance shall the Fund recognize as a covered expense any service for which a claim is filed in excess of 24 months after the date each service is rendered.
Hooper's Dep., Ex. 6, p. 7 (bold emphasis in original; underlining emphasis added). While this clause clearly envisions primarily health and disability benefits, it does have a two-year limitation for claims.
[9] The provisions regarding claim denials and appeals found in the 1979 plan agreement read:
Notification to Claimant Within 30 days after receipt of any claim for benefits, the Administrator shall notify the claimant, in writing, of the action taken on his claim. If the claim is denied in whole or in part, the Administrator shall set forth in the written notice the specific reason for such denial, specific references to the Plan provisions on which the denial is based, a description of any additional material necessary, and an explanation of the Plan's claims review procedure. The Administrator shall also notify the claimant of his right to appeal from such denial.
[] Claim Review Procedure Within 60 days after receipt of notice that his claim has been denied, in whole or in part, the claimant, or his duly authorized representative, may file a written request for a review of his claim by the full Board of Trustees. Such request must set forth the basis for the appeal and all pertinent data to substantiate his position. In connection with the appeal, the claimant, or his representative, will be given an opportunity to inspect the copies of pertinent documents and to review the information upon which the denial was based. The Board of Trustees, in its discretion, may hold a full hearing of the issues presented by the claimant. The Board shall act upon a request for a review within 60 days after receipt thereof, except that if a hearing is held, the Board may extend its review period to a maximum of 120 days. The claimant shall be notified in writing of the action taken by the Board of Trustees. Such notice shall include the specific reasons for the decision and specific references to the Plan provisions on which the decision was based. All such decisions will be final, conclusive, and binding upon the claimant.
Hooper Dep., Ex. 6, p. 8 (bold emphasis in original; underlining emphasis added).
[10] "Taken together the three cases signal to the lower courts that summary judgment can be relied upon more so than in the past to weed out frivolous lawsuits and avoid wasteful trials." 10A Charles A. Wright et al., Federal Practice & Procedure, § 2727, at 35 (Supp.1994).
[11] Plaintiff's counsel argues that Plaintiff did not follow up on the call to Local 247 because she was embarrassed about her unmarried status, especially since she had never told anyone, including her children, that she and Mr. DiMarco never married. However, nothing in her deposition corroborates this contention.
[12] ERISA defines "participant" with the following language:
The term "participant" means any employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit.
See ERISA § 3(7), 29 U.S.C. § 1002(7). See also 29 C.F.R. § 2510.3-3(d).
[13] ERISA § 3(8), 29 U.S.C. § 1002(8), defines "beneficiary" with these words: "The term `beneficiary' means a person designated by a participant or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder."
[14] It is undisputed that Plaintiff was never a participant in the Fund's plan.
[15] The Court does not believe that requiring a fund like Defendant in this case to send out an SPD to a death benefit beneficiary shortly after he is designated as such would further the purpose behind the disclosure provisions in ERISA. Although such a person achieves beneficiary status as soon as he is designated, it is only upon the participant's death that his right to receive benefits vests. It is at that later date, then, that the policies underlying the disclosure provisions are implicated because the beneficiary now has a real interest in becoming aware of plan language and procedures.
[16] The Court should add that the rule it announces today does not place an undue burden on a welfare fund like the Defendant. To require the Fund to send out a single copy of a current SPD to a one-time death benefit beneficiary after it has learned of the participant's death could be easily done as part and parcel of the COBRA notification process if the death benefit beneficiary is also a COBRA beneficiary. Even if the death benefit beneficiary is someone other than a COBRA beneficiary, the Court still believes it is not too much to ask a welfare fund to send out a copy of an SPD to the designated beneficiary shortly after it learns of the participant's death.
[17] The Fund has urged the Court to rely upon regulations promulgated by the Secretary of Labor in order to dismiss Plaintiff's claim that she was entitled to notice of the two-year limitation period. These regulations suggest that beneficiaries receiving benefits under welfare benefit plans like the SO(A) plan in this case are not entitled to copies of SPDs. See 29 C.F.R. §§ 2520.104b-1(a) and 2520.104b-2(a). The Court declines this invitation, however, because the statutes which they interpret, ERISA §§ 101(a) and 104(b), 29 U.S.C. §§ 1021(a) and 1024(b), do not draw a distinction between pension and welfare plans with respect to the distribution of SPDs. Similarly, the Court could find nothing in the legislative history of these statutory provisions to support the distinction drawn by the regulations. See 1974 U.S.C.C.A.N. 4639-5190. Although the Court is aware that the Secretary has broad powers to promulgate regulations, including those that define "technical terms" in the statute, see ERISA § 505, 29 U.S.C. § 1135, it is reluctant to enforce regulations that at least at first blush appear to conflict so openly with the plain language of the statute. See, e.g., Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984) (courts must engage in a two-prong analysis of an agency's interpretation of a statute; first, the court must examine if Congress expressed its intent on a particular issue, and, second, if not, was the agency's interpretation a reasonable one).
[[18]] ERISA § 502(c), 29 U.S.C. § 1132(c), provides for penalties for various violations of the notice and disclosure requirements of the statute. Under the current version of the statute, § 502(c)(1) permits a district court to award penalties of up to $100 a day for failure by a plan administrator to (i) comply with the notice provisions set out in COBRA, (ii) comply with the notice provisions for transfers of excess pension assets into health benefit accounts, and (iii) respond to requests for plan documents. Section 502(c)(2) permits penalties of up to $1000 a day for the failure of a plan administrator to file an annual report with the Secretary of Labor. Section 502(c)(3) provides for penalties of up to $100 a day for any employer who fails to give proper notice of its failure to meet minimum funding standards or who fails to give proper notice to the Secretary, the plan administrator or an affected labor union of a transfer of excess pension funds into a health benefit account. Finally, § 502(c)(4) permits a court to assess up to a $1000 a day against any person who violates notice provisions applicable to Medicare and Medicaid coverage.
[[19]] Unfortunately for Plaintiff, the Sixth Circuit has already rejected the argument that the last sentence of § 502(c)(1) grants a court the authority to award benefits because of a failure to comply with ERISA's notice and disclosure requirements. In Lewandowski, supra, the Court stated:
Though § 1132(c) concludes by ambiguously granting a court discretionary power to "order such other relief as it deems proper," nothing in that subsection, or § 1132 as a whole, suggests that ERISA would approve of an affirmative damage recovery based merely on a plan administrator's failure to adhere to proper notification and disclosure procedures.
986 F.2d at 1008.
Although the Court may respectfully disagree with this analysis, as the quoted statutory language seems to invite courts to invoke "make whole" relief, it appears clear that the Sixth Circuit has precluded this reading with its holding in Lewandowski. Perhaps the Sixth Circuit will revisit this question in this or some other case; until it does, however, the relief requested by Plaintiff appears unavailable.
[20] See Hooper Dep., Ex. 12, p. 25 (1983 SPD); Ex. 13, p. 29 (1986 SPD); Ex. 7, p. 28 (1987 SPD).
[21] The Court is not certain under what provision of the statute this claim arises. Section 409 of ERISA, 29 U.S.C. § 1109, in tandem with § 502, 29 U.S.C. § 1132(a)(2) provides for suits for breach of fiduciary duty, but the U.S. Supreme Court has held that the relief available under this section accrues only to the plan, not to individual beneficiaries. See Massachusetts Mut. Life Ins. v. Russell, 473 U.S. 134, 143, 105 S.Ct. 3085, 3091, 87 L.Ed.2d 96 (1985). ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), permits beneficiaries to obtain equitable relief to redress violations of the statute or to enforce the terms of the statute or of the applicable plan. Presumably, Plaintiff's claim for benefits as a result of the alleged breach of fiduciary duty is one for restitution and, therefore, arises under this provision. But cf. Mertens v. Hewitt Assocs., ___ U.S. ___, ___- ___, 113 S.Ct. 2063, 2069-72, 124 L.Ed.2d 161 (1993) (holding that compensatory damages are not available under ERISA § 502(a)(3)).
[22] In its amended complaint, Plaintiff also asserted that the Board of Trustees breached their fiduciary duties to her by not informing her of the two-year limitations period. However, Plaintiff did not pursue this argument in her brief and argument on the cross-motions for summary judgment.
[23] Of course, as noted above, Plaintiff may be entitled to statutory penalties for the Board's failure to provide her with plan documents that her counsel requested in early 1993. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261762/ | 132 Cal.Rptr.2d 585 (2003)
107 Cal.App.4th 929
Johnny KING, Petitioner,
v.
The SUPERIOR COURT of Sacramento County, Respondent,
The People, Real Party in Interest.
No. C039495.
Court of Appeal, Third District.
April 8, 2003.
Rehearing Denied May 5, 2003.
Review Denied June 25, 2003.[*]
*588 Stephen Greenberg under appointment by the Court of Appeal for Petitioner.
No appearance for Respondent.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Stephen G. Herndon, Rachelle A. Newcomb and Paul E. O'Connor, Deputy Attorneys General, for Real Parties in Interest.
MORRISON, Acting P.J.
"In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." (U.S. Const, 6th Amend.) Because it is essential to a fair trial, the right to counsel has long been considered "fundamental." (Gideon v. Wainwright (1963) 372 U.S. 335, 343, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, 804.) Despite the fundamental nature of this right, it is not absolute. In this case we consider whether an accused may forfeit his right to counsel by serious misconduct, such as violence and threats of violence against a succession of appointed counsel.
Balancing the great importance of the right to counsel against the need to protect counsel and the orderly administration of justice, we conclude an accused may forfeit his right to counsel by a course of serious misconduct towards counsel that illustrates that lesser measures to control defendant are insufficient to protect counsel and appointment of successor counsel is futile. In rare cases where the misconduct is so serious that lesser measures are patently inadequate to protect counsel, an accused may forfeit his right to counsel without employing the patently inadequate lesser measures. Forfeiture of counsel should be a court's last resort and generally forfeiture *589 should occur only after lesser measures to control defendant, including but not limited to a warning and physical restraints or protections, have failed. Further, forfeiture of counsel can occur only after a hearing at which defendant is afforded full due process protections, including the assistance of counsel.
In this case, Johnny King engaged in a pattern of serious misconduct, violence and threats of violence, against a succession of court-appointed attorneys. However, the record does not reveal what measures to control and prevent King's violence, such as restraining him, were attempted. Moreover, the trial court found King forfeited his right to counsel at a hearing in which King's attorney not only did not represent King's interests, but argued against King and in favor of forfeiture. Accordingly, we reverse the order of forfeiture of counsel and remand for further proceedings.
BACKGROUND
In 1981, Johnny King was convicted of kidnapping, robbery, rape, and assault with intent to commit murder, with personal use of a firearm. He was sentenced to life in prison.
In 1999, King was charged with two counts of battery on a non-inmate and two counts of aggravated battery by gassing on a non-inmate. The complaint alleged he had three strike priors. Paul Comiskey was appointed to represent King at his arraignment. Comiskey later withdrew as counsel and the complaint was amended to add a fifth count of battery on Comiskey and to allege four strike priors. King then had three other appointed lawyers, each of whom was relieved.
The trial court held a hearing, outside the presence of the prosecutor, to determine if King had forfeited his right to counsel. King's various lawyers testified to King's assaultive and threatening behavior. King head-butted his first attorney, Paul Comiskey, at the arraignment after Comiskey waived the reading of the complaint over King's objection. The incident was witnessed by the lead bailiff.
Michael Long was appointed in March 1999 to represent King. He visited King in prison on March 12, 1999, and they had a lengthy discussion. When Long told King he would not file all the motions King wanted, or that he was not as excited about their merits as King, King told Long he would get someone on the outside to kill Long. King told Long that some day Long would step out of his car and somebody would be waiting for him. Long asked King why he thought Long would do a better job working under a death threat and King responded, "[Y]ou fuck me, I will fuck you." Long gave the case back to the indigent defense panel that day due to his concerns about personal safety.
Michael Aye picked the case up from Long, who told him King had made threats against his life. Aye met King at Folsom prison and told him he had an investigator. King asked if the investigator had a police background and Aye answered he was a medically retired California highway officer. King said, "once a pig, always a pig" and he would not have any "pigs" working on his case. Aye got another investigator.
Aye testified that King made lots of excessive and unusual demands. King made statements to the court that did not coincide with Aye's recollection of their conversations. At the same time, King pulled Aye aside and said he was threatening Aye's life. Aye had the impression that King was doing this so Aye would declare a conflict and another attorney would be appointed. Aye declared a doubt as to King's competency under Penal Code section 1368 and attempted to have King *590 examined. King refused to cooperate with the examiners. Dr. Mattiuzzi examined King's records and was of the opinion that King had an anti-social personality, but did not meet the criteria of section 1368.
King exhibited a lot of animosity towards Aye and made some threats. Aye could not recall if King specifically said he could have Aye killed; that was an ongoing theme King used with lawyers, but Aye "didn't put too much heat in that." Because of King's animosity, however, Aye felt he was losing his objectivity and asked to be relieved. Aye recalled King's preliminary hearing was not held due to King's behavior in the holding cell, but believed the transport officers may have been baiting King. Aye believed King needed to show more self-control.
On cross-examination King asked Aye if the doctor had said anything about his thyroid problem. Aye did not recall anything. King claimed his behavior problems were due to his thyroid problem, which activated his bipolar manic depression. The court explained that King had been found competent to stand trial and assist in his defense, so his thyroid problem was not relevant at this time.
King's last appointed counsel was Donald Dorfman. Dorfman met with King before a court appearance. King was very unhappy with Dorfman's research on attacking King's priors. King told Dorfman to be very careful when he got upstairs. In court King grabbed Dorfman's sport coat and pulled him towards him. Dorfman gave in so his coat would not be torn. King told Dorfman he would crush his head if Dorfman were to continue. Dorfman was not certain, but he believed King's hands were chained. Dorfman told the court King did not like him. The court asked King what was not to like, and King said, "I hate this sack of shit." King was removed from the courtroom.
Dorfman testified King told him he was considering having someone fly up and take care of Aye. Dorfman had received discovery from the district attorney's office as he was still the attorney of record. King had a series of 115 incident reports while in jail; he had had problem involving snapping his teeth at a doctor and correctional officers that had not been charged. King was not reluctant to act out. Dorfman believed King did present the threat he claimed.
The trial court reviewed King's record and noted that he had been held in contempt and fined $500 during his arraignment. His preliminary hearing had been postponed after King broke his wrist shackles, used a chain as a weapon, and could not be removed from his cell. There was zero evidence of psychosis and King had refused to speak to the mental health staff. Dr. Ebert had found King's thyroid function might be abnormal and there was a strong relationship between abnormal thyroid function and abnormal behavior. Elevations in thyroid were associated with impulsive and aggressive behavior.
The court found King's right to counsel could have been forfeited based solely on the head-butting incident. By his ongoing course of extremely serious misconduct King had forfeited his right to counsel.
A redacted transcript of the hearing was provided to the district attorney. The district attorney moved to amend the complaint to add two counts of making criminal threats, alleging Long and Dorfman as the victims. The court granted this motion and denied King's request for the appointment of counsel on new counts six and seven.
At the preliminary hearing King wanted to waive his appearance. After King told the court, "I won't sit here and be quiet," the court excused him launder Penal *591 Code section 1043.5. Midway through the proceeding, King was brought back in and ordered to stay after he promised not to be disruptive. King asked the court to dismiss counts six and seven because he had no attorney. The motion was denied and King was held to answer on all counts.
King petitioned this court for a writ of mandate or prohibition, which was denied. King then petitioned the California Supreme Court, asserting he was wrongly denied counsel on counts six and seven. The Supreme Court ordered the matter transferred to this court with directions to treat the petition as a petition for a writ of mandate and to issue an alternative writ addressing the issue of whether the trial court erred in finding King had forfeited his right to counsel, as well as the issue King raised in the petition. This court issued an alternative writ and appointed counsel to represent King in the writ proceeding.
Through his newly appointed counsel, King moved to expand the scope of writ review and we granted the motion. In addition to arguing that the trial court erred in finding he forfeited his right to counsel, King raises ineffective assistance of counsel. King contends Dorfman provided ineffective assistance at the forfeiture hearing. First, Dorfman met privately with the judge and asked that King's right to counsel be forfeited. Then, although Dorfman continued to represent King, he failed to object that King had not received notice of the forfeiture proceeding, presented no evidence in King's favor at the hearing, questioned no witnesses, and offered no argument in support of King's right to counsel. Instead, Dorfman offered evidence against King and even volunteered inadmissible hearsay. In short, Dorfman functioned as King's prosecutor.
DISCUSSION
I
Both the United States Constitution and the California Constitution provide the right of a criminal defendant to have the assistance of counsel in his defense. (U.S. Const, 6th & 14th Amends.; Cal. Const, art. I, § 15.) The importance of this right can hardly be overstated. "An accused's right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases `are necessities, not luxuries.' Their presence is essential because they are the means through which the other rights of the person on trial are secured. Without counsel, the right to trial itself would be `of little avail,' as this Court has recognized repeatedly. `Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.'" (United States v. Cronic (1984) 466 U.S. 648, 653, 104 S.Ct. 2039, 2043, 80 L.Ed.2d 657, 664, fns. omitted.) The right to counsel "is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty... . The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not `still be done." (Johnson v. Zerbst (1938) 304 U.S. 458, 462, 58 S.Ct. 1019, 1021, 82 L.Ed. 1461, 1465 fns. omitted.) The right to counsel is so basic to a fair trial that its denial can never be treated as harmless error. (Chapman v. California (1967) 386 U.S. 18, 23, fn. 8, 87 S.Ct. 824, 828,17 L.Ed.2d 705, 710.)
Although the right to counsel is of utmost importance, it is not absolute and a criminal defendant may waive the right. (Johnson v. Zerbst, supra, 304 U.S. 458, 463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461, *592 1466.) The loss of the right to counsel by means of words or conduct is often referred to as "waiver" of the right. (E.g. U.S. v. Jennings (M.D.Pa.1994) 855 F.Supp. 1427, 1443.) This terminology is not precise; waiver is merely one means by which a forfeiture may occur. (See Freytag v. Commissioner (1991) 501 U.S. 868, 894, fn. 2, 111 S.Ct. 2631, 2646, 115 L.Ed.2d 764, 790 cone. opn. of Scalia, J. [noting that waiver and forfeiture have so often been used interchangeably that it may be too late for precision].)
In United States v. Goldberg (3rd Cir.1995) 67 F.3d 1092, at pages 1099-1101, in determining whether a defendant "waived" his right to counsel by deliberate abusive behavior, the court set forth the important distinctions between the concepts of "waiver" and "forfeiture" and the hybrid concept of "waiver by conduct." A waiver is an intentional relinquishment of a known right or privilege. (Johnson v. Zerbst, supra, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 at p. 1466.) The waiver of the right to counsel must be knowing, voluntary and intelligent. (Id. at pp. 464-465, 58 S.Ct. 1019.) To waive the right to counsel and assert the right of self-representation, a defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.' [Citation.]" (Faretta v. California (1975) 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 582.) In contrast, "forfeiture results in the loss of a right regardless of the defendant's knowledge thereof and irrespective of whether the defendant intended to relinquish the right." (United States v. Goldberg, supra, 67 F.3d 1092, 1100.) There is a hybrid situation involving elements of waiver and forfeiture, termed "waiver by conduct" or "forfeiture with knowledge." (Id. at pp. 1100-1101.) Once a defendant has been warned that he will lose his attorney if he engages in dilatory tactics, any misconduct thereafter may be treated as an implied waiver of the right to counsel. (Id. at p. 1100.)
Although King engaged in an ongoing course of misconduct, the record does not show that he was ever warned that his misconduct could result in loss of his right to counsel. Thus, the loss of his right to counsel can be upheld only under the concept of forfeiture. We must determine whether the right to counsel may be forfeited by misconduct without any prior warning that forfeiture could occur.
Federal courts have held the right to counsel may be forfeited without warning due to serious misconduct. The Attorney General relies on these cases to uphold the finding of forfeiture in this case. In U.S. v. Jennings, supra, 855 F.Supp. 1427 defendant was charged with two counts of assault on a federal officer and possession of a prohibited object (a shank). Prior to jury selection, defendant moved to substitute counsel. As he proffered no valid reason, the motion was denied. In open court, defendant hit counsel with his closed fist. The court allowed counsel to withdraw and found defendant had "waived" his right to counsel. Defendant later made threatening remarks against the prosecutor, corrections officers, and his former counsel. Since defendant had enormous physical strength, the threats were taken seriously. (Id. at pp. 1432-1433.) The court found the most appropriate response to the threat of violence in the courtroom is to refuse to allow the manipulation; where defendant manipulates the right to counsel, he should be deprived of that right. (Id. at p. 1444.) "We hold that an indigent defendant who, without provocation or justification, physically assaults *593 court-appointed counsel, thereby waives the right to appointed counsel." (Id. at p. 1445.)
In United States v. McLeod (11th Cir. 1995) 53 F.3d 322, 324-325, the court concluded defendant forfeited his right to counsel at the hearing on his new trial motion by virtue of his pervasive misconduct towards counsel. After a jury found defendant guilty of retaliating against a witness, he moved to dismiss his appointed attorney, for appointment of new counsel, and for a new trial. New counsel who submitted briefs on the new trial motion was appointed. Counsel then moved to withdraw. At the hearing on the motion to withdraw counsel testified defendant was abusive toward him, threatened to harm him, repeatedly threatened to sue him, and had asked him to engage in unethical conduct. (Id. at pp. 323, 325.) Counsel was allowed to withdraw and no new counsel was appointed. The Eleventh Circuit found no error in the finding of forfeiture of counsel. The court was troubled by the lack of any warning that misconduct might lead to pro se representation, but noted that defendant was given the opportunity to testify at the hearing on the motion to withdraw, but refused to take an oath. (Id. at p. 326.) Further, the court noted the forfeiture only applied to the new trial motion, as to which the papers had already been filed; defendant was appointed counsel at sentencing and on appeal. (Id. at p. 326, fn. 13.)
In United States v. Goldberg, supra, 67 F.3d 1092, court-appointed counsel moved to withdraw, alleging defendant had threatened him. Without hearing from defendant, the trial court granted the motion to withdraw and refused to appoint new counsel, noting defendant had the financial means to employ counsel. The court denied a continuance to allow defendant to liquidate assets to pay a retainer, finding defendant had manipulated the judicial system and waived the right to counsel. (Id. at p. 1096.) When counsel appeared in court to turn over his files to defendant, the court swore in counsel as witness and elicited testimony about the conduct that led to withdrawal. (Ibid.) The Third Circuit reversed the judgment. It found the case should be analyzed as a forfeiture; even if it would accept a forfeiture argument, forfeiture could not be based on an ex parte hearing where defendant's interests were not represented. (Id. at p. 1102.) The court further noted that only the alleged death threat would be sufficiently extremely serious misconduct to warrant forfeiture of the right to counsel. (Ibid.)
Forfeiture of the right to counsel was found in U.S. v. Leggett (3rd. Cir.1998) 162 F.3d 237, after defendant attacked his attorney in the courtroom at sentencing. Defendant punched the lawyer, knocking him to the ground, and then straddled the lawyer and began to choke, scratch and spit on him. The attorney was allowed to withdraw and the trial court concluded Leggett had forfeited his right to counsel at the sentencing hearing. (Id. at p. 240.) The Third Circuit found an unprovoked physical battery on counsel qualifies as the sort of extremely serious misconduct that amounts to a forfeiture of the right to counsel. No evidentiary hearing was required because the misconduct occurred in full view of the court. (Id. at p. 250.) Noting the forfeiture of counsel at sentencing did not deal as serious a blow to defendant as forfeiture at trial, the court expressed no opinion whether the misconduct would have been sufficient to justify the forfeiture of counsel at trial. (Id. at p. 251, fn. 14.)
In Gilchrist v. O'Keefe (2nd Cir.2001) 260 F.3d 87, defendant petitioned for a writ of habeas corpus, claiming a New York state court unconstitutionally deprived *594 him of counsel during sentencing by refusing to appoint new counsel after defendant punched his counsel in the ear, causing that counsel to withdraw. Under the deferential standard of habeas corpus review, the circuit court found the state court did not act in a manner contrary to, or in an unreasonable application of, clearly established law as determined by the Supreme Court. (Id. at pp. 89-90.) The court rejected the contention that Supreme Court precedent established that the right to counsel may only be waived, not forfeited. Two Supreme Court cases involving the forfeiture of the right to be present at trial under the confrontation clause, Illinois v. Allen (1970) 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 and Taylor v. United States (1973) 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (Taylor), recognized that constitutional rights may be forfeited even absent a warning. "At a minimum, these casesin particular, Taylorstand for the proposition that, even absent a warning, a defendant may be found to have forfeited certain trial-related constitutional rights based on certain types of misconduct." (Gilchrist v. O'Keefe, supra, 260 F.3d at p. 97.)
Although the Second Circuit affirmed, it noted that the result might have been different if it had been a direct appeal from a federal conviction. "[W]e might well have agreed with petitioner that the constitutional interests protected by the right to counsel prohibit a finding that a defendant forfeits that right based on a single incident, where there were no warnings that a loss of counsel could result from such misbehavior, where there was no evidence that such action was taken to manipulate the court or delay proceedings, and where it was possible that other measures short of outright denial of counsel could have been taken to protect the safety of counsel." (Gilchrist v. O'Keefe, supra, 260 F.3d at p. 89.) The court encouraged trial courts to take intermediate steps short of the complete denial of counsel to protect counsel, such as keeping defendant in restraints when meeting with counsel and in court. Further, defendant could be punished for his misconduct by considering the misconduct in imposing sentence or by separately prosecuting defendant for the misconduct. (Id. at p. 100.)
King contends that despite these cases there is no support in United States Supreme Court cases for finding a forfeiture of the right to counsel for misconduct, at least where there is no warning and the forfeiture is considered permanent. He contends Illinois v. Allen, supra, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353, requires both a warning and an opportunity to reclaim the right when a constitutional right is lost due to misconduct. The issue in Allen was "whether an accused can claim the benefit of this constitutional right to remain in the courtroom while at the same time he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial." (397 U.S. at p. 338, 90 S.Ct. 1057.) The Supreme Court rejected the view that the Sixth Amendment right to be present at one's trial was so absolute that defendant could not lose the right so long as he insisted upon it, no matter how unruly or disruptive his behavior. "Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights, [citation], we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the *595 right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings." (397 U.S. at p. 343, 90 S.Ct. 1057 fn. omitted.)
In Taylor, supra, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174, defendant failed to return for the afternoon session of trial. The trial continued and defendant was found guilty. On appeal he contended his voluntary absence could not be construed as an effective waiver of the right to be present absent a showing that he knew or had been warned he had a right to be present and the trial would continue in his absence. (414 U.S. at p. 19, 94 S.Ct. 194.) The Supreme Court rejected the contention. "It is wholly incredible to suggest that petitioner, who was at liberty on bail, had attended the opening session of his trial, and had a duty to be present at the trial, [citation], entertained any doubts about his right to be present at every stage of his trial. It seems equally incredible to us, as it did to the Court of Appeals, `that a defendant who flees from a courtroom in the midst of a trialwhere judge, jury, witnesses and lawyers are present and ready to continuewould not know that as a consequence the trial could continue in his absence.' [Citation.]" (414 U.S. at p. 20, 94 S.Ct. 194.)
King argues Taylor, supra, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174, is not a case of forfeiture by misconduct; rather, it is an example of waiver of a constitutional right by the failure to assert it. "`No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, `may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' [Citation.]" (United States v. Olano (1993) 507 U.S. 725, 731, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508, 517.)
The court in Taylor, supra, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174, was concerned not only that defendant failed to assert his right to be present, but that his conduct was an attempt to delay the proceedings. The court quoted from Justice Brennan's concurring opinion in Illinois v. Allen, supra, 397 U.S. 337, 349, 90 S.Ct. 1057, 1063, 25 L.Ed.2d 353, 362, "there can be no doubt whatever that the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward." Justice Brennan believed a disruptive defendant should not be allowed to profit from his wrong and constitutional rights can be surrendered if abused for the purpose of frustrating trial. (Illinois v. Allen, supra, 397 U.S. 337, 350, 90 S.Ct. 1057 cone. opn. of Brennan, J.) "The Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes." (Ibid.)
We read Taylor, supra, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 together with Allen as the Gilchrist court did, to permit loss of a constitutional right in certain circumstances based on misconduct, even without a prior warning. (Gilchrist v. O'Keefe, supra, 260 F.3d 87, 97.) "The right to assistance of counsel, cherished and fundamental though it be, may not be put to service as a means of delaying or trifling with the court." (United States v. Fowler (5th Cir.1979) 605 F.2d 181, 183.) Courts cannot tolerate misconduct by a defendant that seeks to delay or disrupt judicial proceedings. Even less tolerable is such conduct which additionally endangers the safety of defense counsel or others. When a criminal defendant engages in the most serious misconduct towards counsel, it is simply "incredible" that the *596 defendant would not realize his right to counsel may be lost.
While a defendant's misconduct towards counsel cannot be tolerated, forfeiture of counsel is rarely the most appropriate response. We agree with the Gilchrist court that trial courts should take intermediate steps to protect counsel before a complete denial of the right to counsel. (Gilchrist v. O'Keefe, supra, 260 F.3d at p. 100.) Where it is necessary to impose physical restraints on a defendant, the least obtrusive and restrictive restraint that provides effective security should be selected. (People v. Mar (2002) 28 Cal.4th 1201, 1226, 124 Cal.Rptr.2d 161, 52 P.3d 95; Pen.Code, § 688.) We believe the same principle of applying the least burdensome measure that will provide the necessary security should be applied when a defendant's fundamental right to counsel is at stake. In many instances a trial court will find it preferable to respond to defendant's misconduct by removing the defendant, with counsel remaining, rather than removing the attorney and leaving the misbehaving defendant present. A violent, threatening and disruptive defendant is hardly the ideal candidate for pro se representation. (See Faretta v. California, supra, 422 U.S. at p. 834, fn. 46, 95 S.Ct. at 2540, 45 L.Ed.2d at 581 [trial court may terminate self-representation by a defendant who engages in serious and obstructionist misconduct].)
"[T]rial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case." (Illinois v. Allen, supra, 397 U.S. 337, 343, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353, 359.) Similar discretion must be granted to trial courts where defendant's misconduct is directed at counsel. A defendant who physically assaults counsel canand shouldbe physically restrained in future meetings with counsel to prevent further assaults. (Cf. People v. Duran (1976) 16 Cal.3d 282, 290-291, 127 Cal.Rptr. 618, 545 P.2d 1322 [physical restraint of defendant in courtroom in presence of jury permissible on showing of manifest need for restraint].) If necessary, additional measures can be taken to protect counsel, such as noncontact meetings between defendant and counsel. Further, the misconduct may be considered an aggravating factor at sentencing or may be the basis of an additional criminal prosecution. (Gilchrist v. O'Keefe, supra, 260 F.3d at p. 100.)
We recognize the utmost importance of the right to counsel and its role in assuring a fair trial and believe that most instances of misconduct by a defendant can be dealt with by measures less severe than forfeiture of counsel. Where defendant engages in a course of misconduct towards counsel that is unprovoked and intended to cause counsel to withdraw and to delay or disrupt proceedings, and it reasonably appears that measures to curtail the misconduct are inadequate or futile, the right to counsel may be forfeited. Yet only in those rare cases of extremely serious misconduct towards counsel where it is apparent that any lesser measures will be patently inadequate to protect counsel may the right to counsel be forfeited in the first instance.
While a warning is not always required before forfeiture of counsel can occur, in instances where the misconduct does not rise to the most serious level, a warning should be given. The warning will serve to alert defendant to the seriousness of his misconduct and perhaps forestall future misconduct. In this case, King should have been both restrained and warned after he attacked Comiskey. In State v. Cummings (1996) 199 Wis.2d 721, 757, 546 N.W.2d 406, 419-420, the Wisconsin *597 Supreme Court held a trial court has the ability to find that a manipulative or disruptive defendant has forfeited his right to counsel. The court recommended, however, that in the future courts follow four steps outlined in the dissent before determining a defendant had forfeited his right to counsel. (Id. at p. 756, fn. 18, 546 N.W.2d 406.) The dissent recommended (1) explicit warnings that if the defendant persists in his misconduct he will forfeit the right to counsel and have to proceed pro se; (2) a colloquy in which the defendant is made aware of the dangers of selfrepresentation; (3) a clear ruling of forfeiture; and (4) factual findings to support the ruling. (Id. at p. 764, 546 N.W.2d 406, dis. opn. of Geske, J.) In addition to measures to control defendant, we also recommend these steps before a trial court declares a forfeiture of counsel.
Another state court has found that serious misconduct may support a finding of forfeiture of counsel in State v. Carruthers (Tenn.2000) 35 S.W.3d 516. Carruthers was a death penalty case, in which several attorneys moved to withdraw. Defendant's final lead counsel moved to withdraw due to defendant's threats, which were severe enough to cause his secretary nightmares. The trial court recognized the pattern as a ploy to delay trial and denied the motion. (Id. at pp. 538-539.) Counsel renewed his motion, now fearing for his daughter's safety. That motion was denied by the trial court and defendant was cautioned. (Id. at p. 539.) Counsel filed an appeal and the Court of Criminal Appeals ruled he should be allowed to withdraw. The trial court ruled defendant had to proceed pro se, with his other counsel as "elbow counsel." The court denied defendant's requests for appointment of new counsel. (Id. at pp. 542-543.) Elbow counsel was allowed to withdraw due to defendant's personal, verbal attacks. Defendant represented himself at trial and sentencing, and was convicted and sentenced to death. Counsel was appointed to represent him on his motion for new trial and on appeal. (Id. at p. 545.)
On appeal Carruthers argued he did not waive counsel, any implicit waiver was invalid because he was not advised of the possibility of waiver and the dangers of self-representation, and his conduct was not so egregious as to justify a finding of forfeiture. (State v. Carruthers, supra, 35 S.W.3d at p. 546.) After reviewing case law on forfeiture of counsel, the Tennessee Supreme Court concluded that even assuming the warnings were insufficient for an implicit waiver, Carruthers's conduct was sufficiently egregious to support a finding that he forfeited his right to counsel. "We reiterate that a finding of forfeiture is appropriate only where a defendant egregiously manipulates the constitutional right to counsel so as to delay, disrupt, or prevent the orderly administration of justice. Where the record demonstrates such egregious manipulation a finding of forfeiture should be made and such a finding will be sustained, even if the defendant is charged with a capital offense." (Id. at p. 550.)
We emphasize that only the most serious misconduct, or repeated misconduct after measures to control defendant have failed, will suffice to support a finding of forfeiture. That requirement distinguishes this case from State v. Boykin (S.C.App.1996) 324 S.C. 552, 478 S.E.2d 689. In Boykin, the Court of Appeals found it unnecessary to determine whether forfeiture of the right to counsel should be recognized in South Carolina because it found a single incident in which defendant cussed at and came after counsel was not sufficient to constitute forfeiture. (Id. at p. 558, 478 S.E.2d 689.)
*598 II
King contends the procedure by which forfeiture of the right to counsel was found denied him due process. He contends he was entitled to notice of the forfeiture hearing, counsel to represent him at the hearing, and the opportunity to present evidence. None of the forfeiture cases cited above addressed the due process prerequisites for a forfeiture of the right to counsel. In United States v. Goldberg, supra, 67 F.3d 1092, 1102, the court found a forfeiture could not be based on an ex parte hearing where defendant's interests were not represented. In Gilchrist v. O'Keefe, supra, 260 F.3d 87 at page 98, footnote 6, the court noted the issue of whether defendant had a right to counsel at the forfeiture hearing was not raised. Given the paucity of authority in this area, we requested supplemental briefing on the due process requirements for finding a forfeiture of counsel, particularly whether there is a right to counsel at the forfeiture hearing.
The Attorney General contends that where defendant's egregious conduct causes the forfeiture of counsel, he is entitled only to a hearing and no prior notice of the hearing. He does not have a right to counsel at the hearing, or at most, counsel's role is limited to research and written advocacy. In contrast, King contends a defendant facing forfeiture of counsel is entitled to a full array of due process procedures, including the right to counsel.
In identifying the specific dictates of due process, we consider three distinct factors: "first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Citation.]" (Mathews v. Eldridge (1976) 424 U.S. 319, 335, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 33.)
Consideration of these factors indicates a proceeding for forfeiture of counsel calls for considerable procedural protections. The private interest affected by a forfeiture of counsel is loss of a fundamental constitutional right, as well as possible future criminal charges. There is some risk of an erroneous deprivation where the forfeiture is to be based on conflicting testimony about conduct that occurred outside the presence of the court. While the government has an interest in judicial efficiency and protecting attorneys, it also has an interest to ensure a fair trial and the right to counsel is a means of protecting that right. Further, the burden on the government of procedural requirements is small, as the forfeiture proceeding is rare, reserved for only the most serious cases.
"The essential elements of due process accorded in a hearing traditionally consist of the right to produce evidence and cross-examine adverse witnesses [citation], the right to appear by counsel [citation], and the right to an impartial decision maker [citation]." (People v. Smithson (2000) 79 Cal.App.4th 480, 496, 94 Cal.Rptr.2d 170.) A defendant facing forfeiture of counsel is entitled to these essential elements of due process. In addition, the assistance of counsel is required by the Sixth Amendment as applied to the states through the due process clause of the Fourteenth Amendment. "[Appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected." (Mempa v. Rhay (1967) 389 U.S. 128, 134, 88 S.Ct. 254, 256, *599 19 L.Ed.2d 336, 340.) A hearing to determine whether defendant forfeits his fundamental constitutional right to counsel affects the substantial rights of defendant and requires the assistance of counsel. Where necessary to protect counsel, a trial court may impose restrictions, such as restraint of defendant or no physical contact between defendant and counsel.
Due process also requires notice so that a defendant may enjoy the right to a hearing. (Fuentes v. Shevin (1972) 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556, 569.) A defendant may be present at the hearing, as "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." (Kentucky v. Stincer (1987) 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631, 647.) The right to be present, of course, is subject to forfeiture if defendant conducts himself in a disruptive manner. (Illinois v. Allen, supra, 397 U.S. 337, 343, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353, 359.)
At this forfeiture hearing, before King's first attorney, Comiskey, testified, he asked that the prosecutor not be present as attorney-client confidences could be involved. The trial court removed the prosecutor. Removing the prosecutor was proper. In a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, to determine whether to substitute counsel, "the better practice is to exclude the district attorney when a timely request is made to do so by the defendant or his counsel. In the absence of a request, the trial court should exclude the district attorney whenever information would be presented during the hearing to which the district attorney is not entitled, or which could conceivably lighten the prosecution's burden of proving its case. [Citation.]" (People v. Madrid (1985) 168 Cal.App.3d 14, 19, 213 Cal.Rptr. 813.) In a forfeiture hearing the trial court should be guided by the same principles in determining whether to remove the prosecutor.
The trial court released a redacted transcript of the hearing to the prosecutor, which was the basis of additional charges. While King does not at this time challenge that action directly, in response to our request for additional briefing on the due process requirements for a forfeiture hearing, he asserts that evidence adduced at the hearing should not be available to the prosecution to use against him in a criminal proceeding. He analogizes the situation to a competency examination, in which there is judicially declared immunity. (Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 469, 122 Cal.Rptr. 61.) We find the analogy inapt. In the competency examination the defendant is compelled to submit to a psychiatrist's questioning in the absence of his attorney. That is not the procedure at a forfeiture hearing.
King contends he should have immunity for his testimony at the hearing as he should not be forced to give up his Fifth Amendment right not to incriminate himself in order to effectively assert his constitutional right to counsel. King offers no compelling reason for a blanket grant of immunity for evidence, including his testimony, adduced at a forfeiture hearing. In Simmons v. United States (1968) 390 U.S. 377 at page 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247, 1259, the Supreme Court held "that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." To establish standing to bring a suppression *600 motion, defendant testified he owned a suitcase. Money wrappers from a bank robbery were found in the suitcase and defendant's testimony about ownership of the suitcase was used to convict him of robbery. The court found it "intolerable that one constitutional right should have to be surrendered in order to assert another." (Ibid.) King contends he is faced with the same "intolerable" choice in deciding whether to testify to retain his right to counsel. The Simmons rule, however, has been held not to apply to incriminating testimony about crimes other than those charged in the instant proceeding. (United States v. Bryser (2d Cir.1996) 95 F.3d 182, 186.) A defendant should not be able to immunize other criminal conduct by testifying about it. (United States v. Baker (D.Ore.1987) 655 F.Supp. 1040, 1043, affd. (9th Cir.1988) 850 F.2d 1365.) Generally, a forfeiture hearing will involve misconduct other than that charged. Where defendant's testimony relates to charged offenses the trial court should determine if the rationale of Simmons requires that testimony be kept from the prosecutor.
In order to permit meaningful appellate review of forfeiture of counsel, a trial court must set forth on the record its factual findings that support a forfeiture of the right to counsel. (Cf. People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531, 53 Cal.Rptr.2d 789, 917 P.2d 628 [requiring reasons for dismissal of strike prior be set forth in a minute order].) When a defendant waives his right to counsel, we require an unequivocal request for self-representation. (People v. Marshall (1997) 15 Cal.4th 1, 23, 61 Cal.Rptr.2d 84, 931 P.2d 262.) The finding of forfeiture of the right to counsel should be equally unequivocal. The trial court should find the facts supporting forfeiture by clear and convincing evidence.
In conclusion, since the fundamental constitutional right to counsel is at issue, a proceeding to find forfeiture of that right requires procedural due process protections. Before a finding of forfeiture is made, the court must conduct a hearing and give defendant notice of the hearing. At the hearing defendant is entitled to be present, to have the assistance of counsel, to present evidence, and to cross-examine witnesses. The court must find the facts supporting forfeiture by clear and convincing evidence, and set forth its factual findings in the record.
HI
We have determined that forfeiture of the right to counsel may be appropriate in cases where despite the trial court's efforts to control defendant through lesser measures, including warnings and physical restraints, he engages in a course of misconduct that causes counsel to withdraw and makes appointment of new counsel futile, provided procedural due process protections are afforded defendant at the forfeiture hearing. We now consider whether forfeiture of counsel was appropriate in this case. Although King's misconduct was both serious and ongoing, we find forfeiture of the right to counsel was not appropriate as the hearing did not comply with the requirements of due process and the right to counsel at all critical stages of the proceeding. While the hearing was deficient in several respects, of greatest concern is the absence of effective assistance of counsel. While King nominally had counsel at the hearing, counsel not only failed to represent King's interests, but actively argued against him and in favor of forfeiture.
"Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a *601 duty of loyalty, a duty to avoid conflicts of interest. [Citation.] From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. [Citation.]" (Strickland v. Washington (1984) 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 694.)
A defense counsel who represents a defendant who is violent and threatening towards counsel is placed in a difficult position. Certainly counsel may move to withdraw and advise the trial court of the reasons for withdrawal. The trial court may then determine a hearing on forfeiture of counsel is appropriate and require counsel to testify. But while counsel remains defendant's attorney, he owes defendant a duty of loyalty. "Attorneys have a duty to maintain undivided loyalty to their clients to avoid undermining public confidence in the legal profession and the judicial process. [Citation.]" (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1146, 86 Cal.Rptr.2d 816, 980 P.2d 371.)
At the forfeiture hearing King was entitled to an attorney with "the overarching duty to advocate the defendant's cause." (Strickland v. Washington, supra, 466 U.S. at p. 688, 104 S.Ct. 2052.) Dorfman offered no argument in favor of King retaining his right to counsel, not even an argument that the forfeiture proceeding violated King's due process rights. Instead, Dorfman violated the duty of loyalty by offering evidence of King's other violent behavior, evidence Dorfman obtained in his position as King's attorney. Dorfman concluded by arguing against his client: "So I really do believe that he probably does present the threat he says he does."[1] Since Dorfman completely denied King effective assistance of counsel, it was as though King had no counsel at the forfeiture hearing. The denial of the assistance of counsel at a critical stage of the proceeding is reversible per se. (United States v. Cronic, supra, 466 U.S. at p. 659, fn. 25, 104 S.Ct. at 2047, 80 L.Ed.2d at p. 668.) Accordingly, the finding of forfeiture of counsel must be reversed.
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate its order of January 12, 2000, finding King had forfeited his right to counsel and all subsequent orders and to appoint counsel for King. The cause is remanded for further proceedings consistent with this opinion.
We concur: CALLAHAN and KOLKEY, JJ.
NOTES
[*] George, C.J., did not participate therein.
[1] At the preliminary hearing, under cross-examination by King, Dorfman testified: "I asked the Court to relieve me and to make sure that you didn't get any other attorneys because I thought you were dangerous." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263273/ | 27 F.Supp. 938 (1939)
TELLER et al.
v.
MONTGOMERY WARD & CO., Inc.
No. 9865.
District Court, E. D. Pennsylvania.
April 21, 1939.
*939 Leon Edelson, of Philadelphia, Pa., for plaintiffs.
Pepper, Bodine, Stokes & Schoch, of Philadelphia, Pa., and Cromwell, Greist & Warden, of Chicago, Ill., for defendant.
*940 KALODNER, District Judge.
This is an equity patent-infringement suit. The plaintiffs complained that the defendant infringed the former's patents involved in the suit by selling stoves and ranges embodying the patented inventions of the plaintiffs. Suit was commenced in 1937: defendant filed its answer January 28, 1938. The new Rules for Civil Procedure for the District Courts of the United States became effective September 16, 1938. 28 U.S.C.A. following section 723c. Rule 12(e) provides that a motion for a bill of particulars may be made by a party within twenty days after the service of a pleading upon him. Plaintiffs moved for a bill of particulars on September 28, 1938.
Eleven patents are involved in this suit. Defendant's answer invoked three identical defenses to each patent: (a) Anticipation by prior patent or invention. (b) Anticipation by prior publication. (c) Prior knowledge and use.
The motion for a bill of particulars poses identical inquiries, two in number, as to the asserted defenses against each patent. Accordingly, for the purposes of this discussion, it may be considered that there are but two inquiries in the motion. They read, respectively, as follows:
"1. With respect to the cause of action based upon the United States Letters Patent No. 82,007, what patents and/or publications specified in Paragraphs Nos. 11 and 12 respectively of the Answer of Defendant will be offered in evidence at the trial of this cause to illustrate the prior state of the art or to support the contention of anticipation, or for any other purpose, and of those offered, on which will defendant rely at such trial in support of the contention of anticipation of the said United States Letters Patent No. 82,007?
"2. What instance or instances of prior knowledge or use, as alleged in Paragraph 13 of the Answer to the Bill of Complaint will defendant attempt to prove on the trial of this cause and what particular instance or instances will be relied upon by the defendant to sustain its defense or defenses (particularizing as to the description of such defense), and, with respect to each such instance state:
"(a) approximately when, where and with whose knowledge the alleged prior use or invention occurred;
"(b) the description of the thing or things invented or used or known of by the person or persons named in answer to the preceding question;
"(c) whether there are in existence any stoves and/or ranges alleged to have been known of or used or invented prior to the invention of the said United States Letters Patent No. 82,007, or any records, documentary or otherwise, concerning the same; and if said stoves and/or ranges and/or records are in existence produce all of the same or as much thereof as is available for inspection by plaintiffs or their counsel or designee and mark the same for identification in the presence of said plaintiffs or their counsel or designee."
The defendant's answer cited a long list of patents and publications as illustrative of the prior state of the art, and as supporting the defendant's contention of anticipation against each patent. As may be observed by reference to the inquiries, the first inquiry sought to compel the defendant to indicate specifically which of the patents or publications would actually be offered in evidence at the trial, and which of said patents or publications would be relied upon by the defendant, to establish the defenses set forth in the answer. The second inquiry asks defendant to state what instances of prior knowledge or use defendant would rely on and attempt to prove at trial, and, in addition, asked for particularization as to those defenses in respect to details appearing in sub-divisions (a), (b), and (c) of the second inquiry. Subdivision (a) inquires as to dates of prior use or invention, but that part of the inquiry has been withdrawn.
Defendant objects to the motion principally on the following grounds:
1. Defendant should not be compelled to specify what patents, publications or instances of prior use he would rely upon at trial, unless plaintiffs simultaneously disclose to defendant the dates of invention upon which he relies.
2. Defendant should not be required to answer inquiries pertaining to the state of the art.
3. An answer to the second inquiry deemed insufficient by the Court might be construed as a contempt.
4. Production of stoves, ranges and records cannot be procured under 12(e), but must be sought under Rule 34.
5. Plaintiff is not entitled to names of defendant's witnesses.
*941 6. The motion was not made within twenty days of the service of the answer.
7. The inquiries are multiple in form.
8. Some of the patents have expired and are not properly the subject of an action in equity.
Rules 26 to 37, inclusive, of the new Rules of Civil Procedure show a clear intent on the part of the draftsman to simplify and expedite trial procedure by disposing of non-essentials, undisputed matters, surprise testimony, and uncertainties to the greatest extent possible in advance of trial. These Rules, taken in conjunction with the provision for motions for bills of particulars in Rule 12(e), and with the growing practice of pre-trial conferences under Rule 16 (the latter in some instances having also been adopted by State Courts), clearly show that an attempt has been made to set up a machinery by the operation of which a cause reaches actual trial stripped to its essentials: with issues defined, clarified and narrowed, with both parties (if properly diligent) thoroughly prepared to meet all possible issues and fortified against surprise, and with a record already complete, except as to those matters which by their inherent nature can only be presented before a Trial Judge. The formulation of the Rules and the development of the procedure tend to hasten the day when the outcome of this class of litigation will depend less upon the skill and strategic manoeuvering of respective counsel and more upon the merits of the issues involved.
So ambitious and worthy an effort to improve trial procedure deserves maximum judicial support, and that support can best be demonstrated by a liberal construction of the new rules liberal, that is to say, in the direction of requiring disclosure of all matters, treated in the rules, by one party upon demand of the other, unless some valid reason appears why the disclosure should not be made. On this score, the burden rests on the party sought to make this disclosure, to satisfy the Court that there is a substantial ground against making the disclosure.
Considered in the light of those principles, an examination may now be made of the reasons assigned by the defendant for its objections to the motion for bill of particulars.
For convenience, the objections will be referred to by the numbers assigned to them in the list appearing hereinabove.
The first objection seems to me to be well taken. It relates to the first inquiry, in which the plaintiffs ask the defendant to specify precisely what patents or publications will be offered in evidence and relied upon to support the contention of anticipation. The inquiry as originally phrased included a demand for dates of the patents or publications thus to be relied upon. Subsequently, that portion of the inquiry (as to dates) was withdrawn; but the withdrawal does not avail the plaintiffs against the objection of the defendant that the plaintiffs should reciprocally be required to furnish the defendant with the dates of invention for the several inventions of the patents in suit. The defense of anticipation is inextricably bound up with the factor of chronology. Patents and publications relied upon as defenses by way of anticipation are futile weapons unless their dates are supplied. Moreover, from general considerations, defendant is as much entitled to know the dates of plaintiffs' inventions as they are to know specifically the details of his defense of anticipation. See Sachs et al. v. Hartford Electric Supply Co., D.C., 26 F.2d 120, 121.
Concerning the second objection of the defendant, relating to a demand that defendant specify what patents or publications will be offered in evidence to illustrate the prior state of the art, it is sufficient to say that the weight of authority affords a sound precedent for such an inquiry. Lapeer Trailer Corp. v. Freuhauf Trailer Co., D.C., 24 F.2d 595, 596; Grand Rapids Show Case Co. v. Straus et al., D. C., 229 F. 199, 200; Coulston v. H. Franke Steel Range Co., D.C., 221 F. 669, 670.
Passing to the second inquiry quoted above (identical in form with all the even numbered inquiries in the plaintiffs' motion), it becomes necessary to consider the third, fourth and fifth objections of the defendant in the above list. In the third objection, defendant complains of the introductory clause of the even numbered inquiries, that "it is impossible to answer this introductory clause without the danger and possibility of being in contempt of court for failing to answer everything demanded, or in answering one interpretation of these questions when plaintiffs may seek a different interpretation".
The fear of contempt is groundless. The penalty for failing to obey an order of the Court granting a motion under Rule *942 12(e) is a possible striking of the pleading to which the motion was directed, or such order as the Court deems just. The penalty of contempt is not indicated in the Rule. On the other hand, it is to be noted that the defendant cites the same forty-three instances of prior knowledge and use against each of the eleven patents in suit. The patents cover different inventions, and it is hardly to be assumed that all the forty-three cited instances are applicable to each patented invention. It is a matter of experience that defendants cite a great number of instances of prior knowledge and use against a patent in pleadings, but rely on a relatively small number of such instances at trial. Plaintiffs would be compelled to do a great deal of useless work in advance of trial in preparing to meet each of the forty-three instances, if it transpired that only a few would actually be relied upon. They are entitled to know upon which instances reliance will actually be placed. The Trial Court will be well able to judge whether or not defendant has made an effort to answer the inquiries properly in any bill of particulars which it may be ordered to file. An improper answer to the inquiries may result in the limitation or restriction of the defense when the cause comes up for hearing: but this is no more than the rules are designed to effect. This particular objection, therefore, cannot be sustained.
As to the fourth objection that production of stoves, ranges and records must be sought under Rule 34 and not under Rule 12(e): technically the defendant may be correct in this position, but under a liberal construction, it may be considered that Rule 34 has been invoked without having been specifically mentioned by the plaintiffs; especially in view of the fact that if the objection were sustained, the plaintiffs could simply file another motion under Rule 34 and bring the entire question up again. No useful purpose would be served by such a delay.
And as to the fifth objection that the plaintiffs are not entitled to the names of the defendant's witnesses, it may be noted that the plaintiffs' request is not for names of witnesses as such, but for the identification of persons with whose knowledge the alleged prior use or invention relied upon as a defense occur. It is true that some or all those persons might be used by the defendant as witnesses, but that would be merely incidental or accidental, and would not affect the right of the plaintiffs to know the identity of the persons involved in the prior use or invention alleged in the defense. Moreover, it has been held that such information could be demanded in interrogatories: Moore, "Federal Practice Under The New Federal Rules," Volume 2, Section 33.02, pages 2615, 2616; Nichols et al. v. Sanborn Co., D.C., 24 F.Supp. 908, 910, where it is said: "* * * further, it is now established that parties may also be interrogated as to the identity and location of persons having knowledge of relevant facts."
Cases cited by the defendant in support of this objection all antedate the new Federal Rules of Civil Procedure.
Defendant's sixth and seventh objections listed above apply to both the odd and even numbered inquiries. The sixth objection is that the plaintiffs' motion for a bill of particulars was not made within twenty days of the service of the defendant's answer as required by Rule 12(e). It is sufficient to observe in this connection that the motion was filed within twelve days after the new Rules became effective. A literal application of the time-limit provision in the Rule would not be equitable in this case. It is not to be assumed that the particular Rule was designed to be retroactive in cases like this. Such application would not only unfairly penalize the plaintiffs, but would also hamper the procedure in this case and deprive both parties and the Court of the benefits of the new Rules. Under the procedure antedating the new Rules, the plaintiffs would not have been out of time in filing their motion.
The seventh objection of the defendant that the inquiries are multiple in form does not particularly affect their validity. As the Court reads the inquiries, they are clear and understandable, as is their content, purport and intent. They are not interrogatories, and the same need for unification and simplification does not exist in the case of inquiries in a motion for bill of particulars, as in the case of interrogatories.
Finally, as to the defendant's eighth objection, that some of plaintiffs' patents have expired and that plaintiffs' only remedy for their infringement is at law, it may be said that since other claims of the plaintiffs are actionable in this equity suit, and to prevent multiplicity of suits, all the claims may as well be disposed of in one litigation.
*943 Accordingly, defendant's objections are overruled and plaintiffs' motion for a bill of particulars is granted, and the defendant ordered to answer the inquiries contained in said motion, except that so far as concerns the request in the odd numbered inquiries that the defendant specify the patents or publications that will be offered in evidence and relied upon to support the contention of anticipation as to each patent, this order is contingent upon the plaintiffs' first filing a statement showing the dates when the inventions of the patents in suit were first conceived and first disclosed.
Sur Plaintiffs' Interrogatories and Defendant's Objections Thereto
The history and facts in this case will be found in the opinion sur plaintiffs' motion for bill of particulars and defendant's objections thereto, filed eo die. Plaintiffs have filed seven interrogatories. Defendant objects to the first, second, fourth, and fifth. The propriety of the second and fourth objections depends on the propriety of the first. The objection to the fifth interrogatory raises a different question.
The first interrogatory reads as follows: "1. Does the following list of stoves include as a constructional feature thereof the provision of flanged structural metal elements arranged in intersecting relation at the front of the stove frame to define a plurality of compartment openings, each of which elements includes a forwardly extending thin flange which serves as a parting strip, bead or rib between the proximate edges of adjoining closures fitted in said openings:" (Here follows a list of stoves with catalogue numbers.)
A narrow question is presented. If this interrogatory calls upon the defendant to construe a patent claim or to admit or deny infringement as a legal conclusion, then defendant is not required to answer: if, on the other hand, it merely seeks to elicit facts, it should be answered. Rodman Chemical Co. v. E. F. Houghton Co., D.C., 233 F. 470; General Electric Co. v. Independent Lamp Co., D.C., 244 F. 825.
I am of the opinion that the objection to the interrogatory is well taken. I consider that the interrogatory clearly calls for a construction of a patent claim and for an admission or denial of infringement as a legal conclusion. The very complexity of the language of the interrogatory, and the multiplication of clauses and phrases, are factors in my decision, as well as the fact that the interrogatory is in the language of a claim of one of the patents, although the latter factor taken by itself is not conclusive. An interrogation as to a fact merely is more likely to be shorter, couched in simpler language, and directed to a single point. When the interrogatory speaks of "constructional features * * * arranged in intersecting relation * * * to define a plurality of compartment openings" the inference is inescapable that either a legal conclusion or a construction is being demanded. The same may be said of that portion of the interrogatory which speaks of a flange serving as a parting strip, bead or rib. The matters concerning which the inquiry is made in this interrogatory are such as should rather be supplied by expert testimony in support of the validity of the patent or the contention of infringement: P. M. Co. v. Ajax Rail Anchor Co., D.C., 216 F. 634, 636. The principles involved here have not been changed by the new Rules of Civil Procedure.
As has been said, the decision upon the first interrogatory controls the decision upon the second and fourth interrogatories. Accordingly, defendant's objection to the first, second and fourth interrogatories are sustained.
The fifth interrogatory reads as follows: "5. State the names and addresses of the manufacturers of the several stoves referred to in the Plaintiffs' Bill of Particulars, it being sufficient for this inquiry to list each stove and the name of the manufacturer thereof but once regardless of the particular patent or patents charged to be infringed by such stove."
I am not inclined to require the defendant to answer this interrogatory. I cannot see what materiality or relevance the facts sought to be ascertained have in this litigation. So far as the plaintiffs' brief is concerned, the reason for the interrogatory seems to be one merely of convenience to the plaintiffs. The latter have filed a bill of particulars, specifying by catalogue number what they consider to be the defendant's infringing stoves. They say, however, that some of the stoves may be manufactured by persons licensed by themselves. They wish to eliminate these licensed stoves from the trial, and apparently can only do so if they are furnished with the names of the manufacturers of *944 all the stoves a fact claimed to be exclusively in the defendant's knowledge.
Defendant objects on the ground that since the facts in themselves are not material or relevant, there is no reason for having the defendant do a great deal of work necessarily involved in answering the interrogatory, simply to save the plaintiffs the trouble of doing the work. The objection seems reasonable, especially in view of the fact that defendant in its rejoinder memorandum suggests that if plaintiffs will submit a list of their licensees, defendant will advise plaintiffs what stoves listed in plaintiffs' bill of particulars were made by their licensees. The offer seems to be a fair one. If the plaintiffs object that this amounts to giving away business secrets, the defendant may avail himself of a similar objection against answering the interrogatory.
Defendant's objection to the fifth interrogatory is, therefore, sustained, subject to the qualification that if the plaintiffs furnish the defendant with a list of their licensees, the defendant is ordered to furnish the plaintiffs with a list of the stoves specified in plaintiffs' bill of particulars which are manufactured by those licensees. | 01-03-2023 | 10-30-2013 |
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