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https://www.courtlistener.com/api/rest/v3/opinions/2261627/ | 428 A.2d 816 (1981)
NATIONAL RIFLE ASSOCIATION, Appellant,
v.
John C. AILES et al., Appellees.
No. 79-342.
District of Columbia Court of Appeals.
Argued March 20, 1980.
Decided March 5, 1981.
*818 Stephen N. Shulman, Washington, D. C., with whom Joseph A. Artabane and Thomas E. Weil, Jr., Washington, D. C., were on the briefs, for appellant.
Mark A. Bayer, Washington, D. C., for appellees.
Before HARRIS, MACK and FERREN, Associate Judges.
FERREN, Associate Judge.
The National Rifle Association (NRA) appeals from a judgment entered on a jury verdict awarding seven of its former employees a total of $90,707.21, representing payment for unused leave accrued during their NRA tenure. NRA contends that (1) the trial court's instruction to the jury impermissibly shifted the burden to NRA to prove that the employees were not entitled to compensation for a portion of their unused leave, and (2) the trial court erred in denying NRA's motions for directed verdict, judgment notwithstanding the verdict, and a new trial, since NRA demonstrated, in any event, that the employees knew aboutand thus implicitly had agreed to an NRA policy limiting compensation for unused leave upon termination. We conclude that the challenged instruction is consistent with the prevailing rule in this jurisdiction. We also conclude that the trial court did not err in denying NRA's directed verdict and post-verdict motions with respect to appellees Ailes, Baggett, Davidson, and Joerg. However, we order entry of judgment notwithstanding the verdict denying damages to appellees Harper, Warye, and Hines.[1]
I.
On November 8, 1976, NRA discharged 80 employees, implementing a reduction-in-force *819 for management reasons.[2] NRA paid each employee all salary accrued to the date of separation, and also made a severance payment based on the individual's length of employment plus any amount due for unused leave (including vacation, sick, and compensatory leave) up to 30 days (or 225 hours).
On August 15, 1977, six of the 80 discharged employees, plus another who resigned,[3] filed suit for breach of contract to recover monetary compensation for accrued but unused leave in excess of the 30-day maximum paid by NRA. A jury trial began on October 16, 1978.[4] At the close of the plaintiffs' case, the court denied NRA's motion for a directed verdict. At the close of all the evidence, NRA moved once again for a directed verdict, which the trial court denied. The jury returned a verdict awarding plaintiffs damages totaling $90,707.21.[5] The court entered judgment on the verdict, whereupon NRA filed timely motions for judgment notwithstanding the verdict and, in the alternative, for a new trial. The trial court denied both motions. Pursuant to an agreement among the parties, NRA deposited in escrow United States Government Bonds with a total face value of $120,000 to stay the execution of judgment pending this appeal.
II.
NRA contends, first, that in order for a discharged employee to recover monetary compensation from an employer for accrued but unused leave, the employee must prove such entitlement by reference to an express agreement or uniform custom. According to NRA, the trial court misplaced the burden of proof by instructing the jury as follows:
A party who asserts the affirmative of an issue has the burden of proving it. This burden he must generally carry by what is termed a preponderance of the evidence....
Leave time is a form of compensation for services and once the services are rendered the right to secure the promised compensation is vested as much as the right to receive wages or other forms of compensation. Vested means fixed, accrued, settled, and absolute. In the absence of expressed agreement to the contrary plaintiffs have a right to recover the value of the promised compensation. Such agreement to the contrary must be shown by the defendant, National Rifle Association of America.... [Emphasis added.]
As interpreted by NRA, this instruction relieved the plaintiff-employees from having to prove the existence of their contractual rights to payment for unused leave upon discharge from their jobs. Secondarily, NRA argues that, even assuming the law of this jurisdiction places the burden on the employer to show the employee's agreement to forfeit payment for accrued leave once *820 the right to leave itself has been established, the employees hereby implicitly made such an agreement, for they continued to work and receive compensation with knowledge of NRA's limitation on payment for unused leave upon termination.
A. The central question is this: when an employee is not required to take vacation or other paid leave as it accrues, and thus has unused leave at the time he or she is fired, is that employee entitled to payment for the unused leave, in the absence of an agreement or uniform custom to the contrary?
In this jurisdiction, Jones v. District Parking Management Co., D.C.App., 268 A.2d 860 (1970), announced the controlling rule. Jones, a discharged employee, sued his former employer for accrued salary and earned vacation pay. He testified, without contradiction, that his initial agreement with his employer provided for a one-week vacation with pay after his first full year of service; that his paid vacations (which had increased to four weeks per year by the time of his discharge) were based on a March-to-March service year and always had been taken in the summer; and that, at the time of his discharge, he had not taken any of the vacation time earned during the previous March-to-March year. Jones, supra at 861.
The trial court found that Jones had been discharged for good cause and ruled that he thereby had forfeited his vacation pay rights.[6] We agreed with the trial court's findings that Jones' "conduct [was] inimical to the best interests of [his employer], justifying his discharge." Id. (footnote omitted). We disagreed, however, that "it ... automatically follow[s] that [Jones] should forfeit deferred vacation pay rights which have already been earned." Id. We held, rather, "that in the absence of an agreement to the contrary the fact that an employee was discharged for cause cannot operate to deprive him of earned vacation pay rights." Id. at 862 (footnote omitted) (emphasis added).
Jones, supra, squarely supports the employee's contention here: as a general rule, an employee who accrues but does not take vacation or other paid leave is entitled to monetary compensation for that leave upon discharge from employment, absent an agreement to the contrary. Id. at 861-62. Accord, Smith v. Kingsport Press, Inc., 366 F.2d 416, 419 (6th Cir. 1966); In re Wil-low Cafeterias, Inc., 111 F.2d 429, 432 (2d Cir. 1940); Harbridge v. Greyhound Lines, Inc., 294 F.Supp. 1059, 1065 (E.D.Pa. 1969); Berteau v. Wiener Corp., 362 So.2d 806, 808 (La.App.1978); Textile Workers Union v. Paris Fabric Mills, Inc., 22 N.J.Super.App.Div. 381, 384-85, 92 A.2d 40, 42 (1952); Pfeifer v. A.F. Lowes Lumber Co., 206 Or. 115, 123, 291 P.2d 744, 748 (1955); Valeo v. J. I. Case Co., 18 Wis.2d 578, 585-86, 119 N.W.2d 384, 388-89 (1963).[7] It follows *821 that a discharged employee may establish a right to monetary compensation for accrued but unused leave by pleading and proving that (1) prior to performance of the work, there was an agreement entitling the employee to accumulate leave, and (2) as of the termination date he or she had accumulated the claimed number of days. Any qualification on that righti. e., any additional agreement between the parties limiting (or defeating) the employee's right to compensation for that leave[8] is in the nature of an affirmative defense that must be pleaded and proved by the defendant-employer. See Super.Ct.Civ.R. 8(c); see generally 5 Wright & Miller, Federal Practice & Procedure: Civil §§ 1270-1271 (1969 & Supp.1979). Obviously, "[t]he burden of establishing the terms of a contract rests upon the party suing thereon." Backus v. Veterans Cooperative Housing Ass'n, D.C. Mun.App., 96 A.2d 513, 515 (1953). But that means establishing only the terms essential to recovery; it does not include proving the negative of the other party's assertion that the terms relied on are subject to a qualification (tantamount to another agreement) that defeats the claim.[9]
In summary, the rule of this jurisdiction is: (1) the right to accrue paid leave implies the right to compensation for unused leave upon discharge from employment, and (2) once a discharged employee has established the right to accrue leave and the amount of leave unused, the employee is entitled to compensation for it unless the employer sustains the burden of proving "an agreement to the contrary." Jones, supra, 268 A.2d at 862. We turn, therefore, to the application of the rule.
B. We must consider, initially, whether the appellee-employees made a showing of their right to accrue leave sufficient to trigger the trial court's instruction. The answer unquestionably is yes; very simply, NRA conceded the issue. In paragraph 8 of their complaint, the employees alleged:
All vacation time, sick leave and compensatory time earned by each Plaintiff was a form of compensation for the work performed by each Plaintiff. Each increment of such time was based upon the length of service of each Plaintiff and upon time worked. As each increment of such time was earned, the right to receive payment for such time became fixed and vested in each Plaintiff. [Emphasis added.]
NRA answered, in part:
Subject to the aforesaid limitation of 225 hours maximum which could be accumulated *822 by any one plaintiff, paragraph 8 is otherwise admitted. [Emphasis added.][10]
This concession was reflected in the plaintiffs' evidence. Each employee testified at trial that NRA had hired him full-time and had promised, as compensation for his services, a salary plus paid leave.[11] The evidence showed that each increment of leave that an employee accrued but did not use during a particular year was carried forward on his leave record into subsequent years. Each employee's bi-weekly pay stub was imprinted with the number of accumulated, unused leave hours and also contained the admonition, without limitation, "RETAIN THIS STATEMENTIT IS A RECORD OF YOUR EARNINGS AND DEDUCTIONS."
We conclude that NRA's answer (confirmed by plaintiffs' showing) was sufficient to trigger the Jones instruction that NRA, as the employer, must either prove the existence of each employee's agreement to forfeit a portion of his unused leave upon termination, or be held responsible to compensate the discharged employee for all of it.
III.
NRA asserts that the trial court nonetheless should have granted its directed verdict and post-verdict motions because NRA did prove, without question, that the employees had agreed to a limitation on compensable unused leave. Specifically, NRA points to testimony by six of the seven employees admitting that they each had received an NRA-prepared document announcing a 225-hour limit. Two of the employees, moreover, admitted knowing, prior to 1965, of a then-prevailing 45-day limit on accrued leave. Thus, according to NRA, even if Jones, supra, does place the burden on NRA to prove an agreement by the employees to forego accrued but unused leave in excess of 225 hours (30 days), those employees who continued to work and receive compensation with knowledge of NRA's leave policy must be deemed to have agreed to it. See Dahl v. Brunswick Corp., 277 Md. 471, 476, 356 A.2d 221, 224 (1976); Borden v. Day, 197 Okl. 110, 111, 168 P.2d 646, 648 (1946).
A. We agree with the general proposition that once an employee learns about a new policy limiting compensation for unused leave upon termination, but elects to stay on the job and accept compensation, that decision is sufficient to imply an agreement to continue working subject to the new limitation. But this general proposition may be limited by the circumstances. In the first place, without the employee's express agreement to be bound by a change in policy, the employer must prove that the employee's knowledge of the change was complete enough for the trier of fact to find, in fairness, that the employee's decision to remain on the job was premised on acceptance of the new policy.
If, for example, the policy change eliminates rights (e. g., the right to compensation for previously accrued leave), the trier may feel the need for more conclusive evidence that the employee accepted the change with eyes open than he or she would in a case where the employer merely imposes prospective restrictions. Second, policy changes affecting conditions of employment will vary in complexity; and, whatever their nature, they will have different impacts on employees depending on individual circumstances. Consequently, the answer to the question whether an employee, upon learning of a policy change, has implicitly agreed to it by remaining on the job cannot be answered without carefully exploring the facts. The trier, for example, must leave room for at least a brief period of time during which the employee may remain *823 on the job without prejudice, while pondering his or her personal alternatives. An employee who learns of a policy change on Monday cannot, in fairness, be deemed to have accepted that change merely by reporting to work on Tuesday. On the other hand, the point will come when an employee has stayed on the job too long, with knowledge of the change, to permit a finding that he or she has not accepted the new policy. No bright line test can be developed for this determination. Factors such as the magnitude of vested rights to be surrendered and the employee's assertion of a need for time to make up his or her mind will be relevant here.
In summary, the question whether an NRA employee had sufficient knowledge of the 225-hour limit to imply acquiescence in that policy will depend on the trier's evaluation of the totality of the circumstances, including the completeness of the employee's knowledge about the policy and the time reasonably required by that employee to evaluate his or her options. The jury should be so instructed.[12]
B. The employees argue that they were unaware of the 225-hour limit.[13] NRA contends the evidence conclusively demonstrates that they were. This presents a classic jury question. See Borden, supra 197 Okl. at 112-13, 168 P.2d at 648-49.
In determining whether the trial court should have granted the motions for a directed verdict or for judgment notwithstanding *824 the verdict, we must decide whether a reasonable person, viewing the matter in the light most favorable to the employees, would be unable to reach a verdict in one or more employee's favor. See, e. g., Calloway v. Central Charge Service, 142 U.S.App.D.C. 259, 261, 440 F.2d 287, 289 (1971). In contrast, our review of the trial court's denial of the new trial motion, when based on a claim that the verdict is against the weight of the evidence, "is limited to determining whether the trial court has abused its discretion." Johnson v. Bernard, D.C.App., 388 A.2d 490, 491 (1978).[14]
In making these evaluations, we note, first, that six of the appellee-employees (other than Joerg) testified they did receive a "stay bonus" memorandum (or learn of its contents) sometime in the summer of 1976.[15] That memorandum dated August 12, 1976, announced NRA's proposed move to Colorado Springs (projected for May 8, 1978), the procedure for identifying employees who would be relocated, and the policy of paying each full-time, permanent employee who did not move (and thus eventually would be dismissed) a monthly incentive bonus beginning August 15, 1976, of 10% of base monthly salary to remain with NRA until the employee's services were no longer required. The last paragraph of the memorandum stated that "[a]n employee's leave accrued up to a maximum of 225 hours will be paid at the time of termination, accrued separately and not part of the Stay Bonus."
Three of the employees, howeverAiles, Baggett, and Davidsontestified they believed that the memorandum did not apply to them because they knew they either would be moving to Colorado Springs or otherwise would not be affected by the NRA move because of the nature of their positions (e. g., as a field representative). Two of them testified, moreover, that the NRA president had confirmed this understanding. Because the 225-hour policy in the last paragraph of the "stay bonus" memorandum was so closely tied to the Colorado move, the jury reasonably could conclude that these three employees justifiably ignored it. Absent any other sure basis for imputing a belief that the limit applied to them, see note 12 supra, the jury reasonably could find, under all the circumstances, that Ailes, Baggett, and Davidson had not agreed to continue working subject to that 225-hour policy. Nor, on this record, can we find an abuse of trial court discretion in rejecting NRA's claim that the jury verdict for the three employees was against the weight of the evidence. Accordingly, appellees Ailes, Baggett, and Davidson are entitled to compensation for all leave accrued as of their date of discharge, "in the absence of an agreement to the contrary." Jones, supra 268 A.2d at 862.
Appellee Joerg testified that he did not receive the "stay bonus" memorandum or otherwise learn about the 225-hour limit. He also testified that, during an earlier tenure with NRA, he had accrued approximately three months of leave prior to terminating NRA employment, and that he believed he had been paid for it in full. On cross-examination, he acknowledged receiving a check which apparently was introduced by NRA to show that, in fact, Joerg had been paid only for 30 days of accrued leave. Counsel, however, did not pursue Joerg's acknowledgement by making clear that the amount of the check was so limited and that Joerg, as a result, must have known about the 225-hour policy. Accordingly, on this record, there is no basis for granting NRA's motions as to Joerg; he is entitled to compensation for accrued leave, as awarded by the jury.
*825 Appellees Harper and Warye present a different situation. Their employment with NRA began in 1940 and 1949, respectively. They each admitted they continued to work there for many years knowing that there was a 45-day limit on accrued but unused leave. See notes 13 & 15 supra. Both testified, however, that they learned the 45-day limitation had been liftedand that previously-lost leave had been restoredin connection with a new disability insurance system adopted in 1965; but both denied learning about the 225-hour limitation that was also part of the 1965 change. See note 15 supra. Harper and Warye stressed the consistency of this understanding by pointing to the fact that employee payroll stubs showed the restored leave (without notation of any limitation) and by further testifying that they had not received a document announcing any new limitation.[16] Absent proof of their receipt (or awareness) of an NRA document clearly announcing both components of the 1965 change, we cannot say a reasonable jury must have found that Harper and Warye learned about the new, 225-hour limitation simply because they knew the 45-day limitation had been lifted.
Warye and Harper, however, had an additional hurdle, for they admitted receiving the August 12, 1976 "stay bonus" memorandum. Unlike Ailes, Baggett, and Davidson, Warye and Harper did not testify that they had reason to believe this memorandum was inapplicable to them. Nor did they testify about any effort they may have made during the three month period before they were discharged (on November 8, 1976) to preserve their rights to all accumulated leave. For example, they did not inform NRA they were continuing to work without agreeing to the 225-hour limit pending a reasonable period during which to decide whether to resign (keeping all accrued leave) or to remain with NRA (accepting the 10% bonus while surrendering accrued leave in excess of 225 hours). We conclude that Warye and Harper, by receiving the "stay bonus" memorandum and continuing to work at NRA for three months at a 10% bonus, without questioning the 225-hour limit on compensable leave, must be said as a matter of law to have agreed to that limitation.
It is true that Harper had been with NRA for approximately 36 years with accrued leave totaling 3,950.25 hours (in excess of the allowable 225), and that Warye's NRA tenure was approximately 27 years with an accumulated 1,947.25 hours of leave (beyond the 225). The jury valued this leave at $40,083.69 and $20,184.77, respectively. However, notwithstanding the potential surrender of substantial value by continuing to work for NRA under the "stay bonus" policy, Harper and Warye pointed to nothing in the record which could justify a finding that, after three months without raising a question, they still had not agreed to all the terms of that policy, including the 225-hour limitation. Conceivably, Harper and Warye anticipated working for the 10% bonus for a long while; the Colorado move, according to the August 12, 1976 memorandum, was "currently estimated as May 1978." In addition, Harper and Warye may have contemplated actually taking their accrued leave, at full pay, while still in NRA's employ. There may have been still other reasons why they agreed to the "stay bonus" terms. Whatever the explanationand however unfortunate their choice turned out to bewe find no basis for a conclusion that they did not *826 make the choice.[17] Accordingly, we must order the trial court to enter judgment for NRA notwithstanding the verdict as to Harper and Warye.[18]
Finally, appellee Hines presents a still different case. Sometime during the summer of 1976, NRA fired its Director of Public Affairs; soon thereafter, Hines was appointed Acting Director. Hines found a copy of the "stay bonus" memorandum in the former Director's office and thus became aware of the 225-hour limit on compensation for accrued leave upon termination of employment, at least for those employees subject to that memorandum. Hines' testimony makes clear that he anticipated staying with NRA (hopefully as Director of Public Affairs), and that he did not leave until February 1977, when he resigned after someone else had been appointed as permanent Director. His awareness of the 225-hour limit was enhanced by the controversy over that limit once other employees were discharged in early November 1976.
Under these circumstances, no reasonable juror could conclude that Hines had not accepted the 225-hour limit as a condition of continuing employment. There can be no doubt that Hines knew the 225-hour limit was being generally applied by NRA. In a February 24, 1977 memorandum protesting that limit (there is no earlier protest of record), he acknowledged the "225 hours currently being used as the NRA standard." Moreover, by staying on the job as long as he did after seeing the "stay bonus" memorandum in August 1976 and learning how the 225-hour limit was applied to employees discharged in November 1976, Hines must be deemed as a matter of law to have agreed to risk losing accrued leave in excess of that limit, in exchange for the prospect of a better NRA job. NRA's argument here is even more compelling than in the cases of Harper and Warye. Accordingly, we must order the trial court to enter judgment notwithstanding the verdict in favor of NRA with respect to Hines' claim.
IV.
In conclusion, we affirm the trial court's denial of NRA's motion for a directed verdict, judgment notwithstanding the verdict, and a new trial as to appellees Ailes, Baggett, Davidson, and Joerg, and thus confirm the jury awards as to them. However, we reverse and remand for entry of judgment for NRA notwithstanding the verdict as to appellees Harper, Warye, and Hines.
So ordered.
HARRIS, Associate Judge, dissenting:
I consider the majority opinion to be sorely flawed in a number of ways, and so respectfully dissent. Since I conclude that an instructional error necessitates reversal and a new trial, my dissent is rather narrowly focused.
I
Initially, I would briefly refer to the nature of the underlying problem, which seems to me to be somewhat obscured in the majority opinion. Appellant National Rifle Association (NRA) had a policy of permitting its employees to accrue up to a total of 225 hours (30 days) in unused annual leave time, for which they would be compensated upon separation from the association. Beyond that 225-hour total, there was no provision for payment for *827 unused leave time. As noted by the majority, NRA did lay off 80 employees. Of them, six brought suit seeking payment for unused leave time in excess of the 225-hour limitation.[1] By obvious implication, 74 of the discharged employees did not join in such a suit.
Since this dissent is at least temporarily separated from the majority opinion to which it is directed, it is appropriate to quote the relevant portion of the jury instruction which I consider to constitute reversible error:
Leave time is a form of compensation for services and once the services are rendered the right to secure the proposed compensation is vested as much as the right to receive wages or other forms of compensation. Vested means fixed, accrued, settled, and absolute. In the absence of expressed agreement to the contrary plaintiffs have a right to recover the value of the promised compensation. Such agreement to the contrary must be shown by the defendant, National Rifle Association of America....
II
That instruction, in my opinion, was clearly erroneous in that it placed the burden of proof upon the defendant (NRA) to defeat the plaintiffs' contentions as to their alleged entitlements. The majority opinion compounds that error by approving the trial court's giving of the instruction. Since such a result flies in the face of hundreds of years of civil law, I consider the majority opinion to be wholly unsound on this issue.[2]
One of the most fundamental tenets of civil law, consistently reaffirmed, is that the burden of proof never shifts. See, e. g., Judkins v. Carpenter, 189 Colo. 95, 97, 537 P.2d 737, 738 (1975) (en banc); Commercial Credit Corp. v. Harris, 212 Kan. 310, 312, 510 P.2d 1322, 1325 (1973). "The plaintiff has the burden of proof throughout the case. It must prove by a fair preponderance of the evidence, to the jury's satisfaction, the material allegations of its complaint. The burden of proof does not shift." Midland Oil and Royalty Co. v. Schuler, 126 N.W.2d 149, 152 (N.D.1964). The reason why "[l]itigants have a substantial right in having the burden of proof properly placed," Banks v. Banks, 8 N.C.App. 69, 70, 173 S.E.2d 631, 632 (1970), is obvious. As one court stated:
When the party having the burden of proof establishes a prima-facie case, he will prevail in the absence of proof to the contrary offered by the defendant. The defendant is not required to meet this prima-facie case by a preponderance of the evidence or by evidence of greater weight. It is sufficient if it equalizes the weight of the plaintiff's evidence. The burden of maintaining the affirmative of the issues involved is upon the plaintiff and remains with him throughout the trial. If upon all the facts the case is left in equipoise, the plaintiff must fail. 20 Am. Jur., Evidence, Sec. 1251. [Midland Oil and Royalty Co. v. Schuler, supra, 126 N.W.2d at 153.]
In this case, the trial court instructed the jury that the defendant-employer had the burden of proving an agreement to the contrary of plaintiffs' contention that they were entitled to compensation in lieu of accrued leave time beyond the 225-hour limitation. In fact, under established case law, the burden was on plaintiffs throughout the case to prove an agreement with the defendant in the first place which would entitle *828 them to compensation in lieu of leave time accrued without limit, since such was their claim. That the trial court misplaced the burden was of critical importance in light of conflicting testimony as to whether the employees had sufficient notice of the restriction on paid leave to make the 225-hour limit an enforceable part of their employment contract. If the jury concluded as it may well havethat the conflicting testimony was about equally weighted, then it would have been obliged under the trial court's charge to resolve the issue against the party with the burden of proof. In short, the NRA had a right to have the burden of proof properly placed, and it was substantially prejudiced by the instruction which misplaced it.
Any support for shifting the burden of proof which the majority claims to find in Jones v. District Parking Management Co., D.C.App., 268 A.2d 860 (1970), and in the other cases upon which the majority relies is purely illusory. The cases do not stand for the proposition, as the majority asserts (at 820), that "as a general rule, an employee who accrues but does not take vacation or other paid leave is entitled to monetary compensation for that leave upon discharge from employment absent an agreement to the contrary." Rather, what the cases do stand for is that entitlement to pay in lieu of paid leave is wholly a contractual matter. There is an entitlementif at allonly to the degree that the employer agrees to provide it and the employee, in accepting employment, agrees to the terms.[3] The clear implication of the majority's subtle contortion of the general rule is that, once an employee is allowed to accrue vacation leave rather than take it as it accrues, then that employee is entitled to accumulate leave indefinitely without regard to the reasonable expectations of the employer. Such a conclusion has no basis in logic or in law, nor is it supported by the cases relied upon by the majority.
In Jones v. District Parking Management Co., supra, the employee had testified without contradiction that his agreement with his employer provided for a one-week vacation with pay at the end of his first full year of service; that his paid vacations, which at the time of his discharge had increased to four weeks per year, were based on a March to March work year and were always taken the following summer; and that, at the time of his discharge, he had not yet taken any of the four weeks earned during the preceding year of service. 268 A.2d at 861. In other words, the employee in Jones claimed entitlement to vacation pay accrued in the year immediately preceding his discharge for cause.[4] Similarly, in each of the cases cited by the majority the employees' claim of entitlement was to leave accumulated in the year of, or immediately preceding, the employees' separation from employment. See Smith v. Kingsport Press, Inc., 366 F.2d 416 (6th Cir. 1966) (vacation benefits for the year to be determined on date employees were on strike); In re Wil-low Cafeterias, 111 F.2d 429 (2d Cir. 1940) (one-week vacation earned but not taken as of date employer-company was adjudicated bankrupt); Harbridge v. Greyhound Lines, Inc., 294 F.Supp. 1059 (E.D.Pa. 1969) (three-week vacation earned in year preceding employee's discharge); Olson v. Rock Island Bank, 33 Ill.App.3d 914, 339 N.E.2d 39 (1975) (three-week vacation earned in year employee retired); Berteau v. Wiener Corp., 362 So.2d 806 (La.App. *829 1978) (one-week vacation earned in year preceding employee's discharge); Textile Workers Union v. Paris Fabric Mills, 18 N.J.Super. 421, 87 A.2d 458, aff'd, 22 N.J. Super. 381, 92 A.2d 40 (1952) (collective bargaining agreement terminated by union prior to date on which vacation pay for the year to be determined); Pfeifer v. A. F. Lowes Lumber Co., 206 Or. 115, 291 P.2d 744 (1955) (vacation earned in year in which old collective bargaining agreement expired and new agreement was put into effect); Valeo v. J. I. Case Co., 18 Wis.2d 578, 119 N.W.2d 384 (1963) (vacation pay for the year due under collective bargaining agreement which terminated that year). None of the cases squarely addresses the issue whether the right to accrue leave means the right to accrue leave indefinitely absent an agreement to the contrary, and the majority grasps at straws in order to reach such an absurd result.
To the contrary, it is obvious from the cases cited by the majority that the amount of vacation time to which an employee is entitled is determined by the terms of the employment contract. Entitlement to pay in lieu of vacation time is also a matter of contract. Marine Inspection Service, Inc. v. Alexander, 553 S.W.2d 185 (Tex.Civ.App. 1977); Walters v. Center Electric, Inc., 8 Wash.App. 322, 506 P.2d 883 (1973); Lim v. Motor Supply, Ltd., 45 Hawaii 111, 364 P.2d 38 (1961). Moreover, an agreement providing that vacation time may be accrued and an employee compensated at separation for leave time earned but not taken is always subject to conditions or qualifications that are part and parcel of the agreement. Walters v. Center Electric, Inc., supra; Briggs v. Electric Auto-Lite Co., 37 Wis.2d 275, 155 N.W.2d 32 (1967); Valeo v. J. I. Case Co., supra. Accordingly, vacation time earned but not taken may only accrue for compensation purposes to the extent permitted under the contract. Walters v. Center Electric, Inc., supra.
In this case, the employees asserted that the NRA's allowing them to accrue vacation time over the years created a vested right in them to payment in full for that time. "Since the plaintiffs' rights depend upon the contract, we must examine its terms, not to make it speak where it is silent or contrary to what it says, but to discover what it does say." Briggs v. Electric AutoLite Co., supra, 37 Wis.2d at 280, 155 N.W.2d at 35. In that regard, the evidence presented by the NRA was that the contract with its employees provided for pay at separation for all accrued annual leave time up to 225 hours (30 days).[5] It was established that that was the policy of the NRA. Whether the notice of that policy was sufficient to bind the NRA's employees to it was a jury question. However, the employees' contention that they were not bound by itthat they were, indeed, entitled to pay in lieu of leave without limitwas a material element of their case. The burden of proof properly started as theirs and remained theirs.
Nor, as noted, does the 225-hour limitation constitute an affirmative defense.[6] By *830 proving the existence of the limitation policy (including its recognition and acceptance by other employees of the NRA), the NRA met its burden of going forward with the evidence in its attempt to refute the employees' case. In so doing, it properly was attacking the truth of the plaintiffs' allegations and the burden was on the plaintiffs to disprove the existence of the limitation. See Roberts v. Mitchell Brothers Truck Lines, 289 Or. 119, 611 P.2d 297 (1980) (a defendant may, under a general denial, offer evidence that refutes a plaintiff's cause of action without being required to raise an affirmative defense); Morrow v. New Moon Homes, Inc., 548 P.2d 279 (Alaska 1976) (in denying the existence of an element of the plaintiff's case, the defendant does not assume the burden of proof); Wall v. Zeeb, 153 N.W.2d 779 (N.D.1967) (where defendant's answer denies the allegations in plaintiff's complaint, except as otherwise admitted, qualified, or explained, defendant does not assume burden of proof); Midland Oil and Royalty Co. v. Schuler, supra (same). Consequently, the trial court's instruction, insofar as it placed the burden on the defendant to prove its denial of the allegations in plaintiffs' complaint, was clearly erroneous. Banks v. Banks, supra; Wall v. Zeeb, supra; Midland Oil and Royalty Co. v. Schuler, supra.
I firmly am of the view that the proper disposition of this case would be to remand it for a new trial with proper instructions to the jury.
III
I would be remiss if I failed to register not only my disagreement with the majority's disposition of this case, but moreover with the manner in which the majority seeks to impose its wishes upon the public for the future. Appellate courts, after all, are not legislatures. Our responsibility in deciding a case such as this begins and ends with a determination as to whether, based upon the specific factual situation before us, reversible error has or has not been committed. To the extent that our pronouncements in deciding such a case have binding future effect, that effect inexorably is related to the particular facts which have given rise to those pronouncements.
Not content with merely resolving the questions presented, the majority seeks to establish a rule which, if followed literally, would be superimposed upon all employment relationships in this jurisdiction which lack contractual certainty. Thus, the majority opinion states in part (at 821):
In summary, the rule of this jurisdiction is: (1) the right to accrue paid leave implies the right to compensation for unused leave upon discharge from employment, and (2) once a discharged employee has established the right to accrue leave and the amount of leave unused, the employee is entitled to compensation for it unless the employer sustains the burden of proving "an agreement to the contrary." Jones, supra, 268 A.2d at 862.
That statement is flawed in several respects. Initially, I have explained above how Jones v. District Parking Management Co., supra, provides no support for any part of the majority's resolution of this appeal. Beyond that, it is axiomatic that the majority may not impinge upon the contractual rights and duties of other employers and employees by in effect "legislating" an employment policy which it deems to be desirable. Additionally, the quoted statement is, of course, dictum. If such a policy were to be considered by a quasi-legislative body, it could be adopted only by affording a right to be heard by all interested parties. Certainly we are not free to adopt such a "rule," which could have an impact on a *831 wide variety of employment relationships not now before the court.[7]
This inevitably brings me to the question of what precedential effect the majority opinion may have. I conclude that it has none. The majority of this division of the court has no authority to alter the rule that the burden of proof begins and stays with the plaintiff in an action such as that before us. M. A. P. v. Ryan, D.C.App., 285 A.2d 310 (1971). The majority of the division has no authority to fashion a rule purporting to control other employment relationships and practices. Thus, the inescapable conclusion is that while the majority opinion does resolve this case, it disposes of it in a manner which is so patently flawed as to leave it a derelict floating without true future meaning on the jurisprudential sea. While the opinion may well cause problems in future litigation of this type, I am confident that perceptive trial judges will recognize and deal appropriately with both its shortcomings and its precedential limitations.
NOTES
[1] We also reject NRA's contentions that the trial court committed reversible error by (1) admitting testimony concerning the employees' "subjective feelings and conclusions" and (2) declining to give NRA's requested instruction on the appropriate measure of damages. Even if we assume that some of the challenged testimony was admitted in error, such admission did not cause a substantial injustice to appellant requiring reversal. See Super.Ct.Civ.R. 61. As to the damages issue, we note that the jury awarded amounts consistent with the only evidence submitted on possible damages (i. e., a stipulation showing total hours accrued above the alleged 225-hour limit, multiplied by the hourly salary rate each appellee was receiving upon termination), and that the court permitted appellant's counsel to argue NRA's theory of damages to the jury.
[2] The severance notice informed the employees that "[t]he National Rifle Association [was] making a substantial force reduction to improve operational efficiency and assure the ongoing financial strength." The discharges were effective the same day the severance notices were issued.
[3] The seventh employee, Steven Hines, resigned from NRA on February 25, 1977, and was similarly paid for accrued leave only up to the 30-day maximum. Hines was the only employee whose claim included compensatory leave.
[4] The trial court had previously entered partial summary judgment in NRA's favor, denying recovery under D.C. Code 1973, § 36-603(d) (covering payment of wages upon discharge or resignation of employee and upon suspension of work).
[5] The individual awards to the seven employees were as follows: John C. Ailes, $4,549.74; Rolfe E. Baggett, $4,146.36; William Davidson, $3,505.89; John A. Harper, Jr., $40,083.69; Steven Hines, $14,579.46; Robert C. Joerg, III, $3,657.30; Russell B. Warye, $20,184.77.
[6] The trial court had credited the following evidence on the cause of discharge:
[Jones] and two other former employees of appellee had incorporated a competitive parking company in January 1968, which company had thereafter entered into a lease to operate and did operate a parking lot previously leased to appellee. [Jones] did not inform appellee of his connection with the new company and, even upon inquiry, told appellee's president that he had nothing to do with the operation of the company except that he had loaned money to some friends to organize it. [Jones, supra 268 A.2d at 861.]
[7] Contra, Lim v. Motor Supply, Ltd., 45 Haw. 111, 122, 364 P.2d 38, 44 (1961) (terminated employee is entitled to payment for unused leave only if he or she can show an "express agreement or uniform custom" to that effect); Marine Inspection Serv., Inc. v. Alexander, 553 S.W.2d 185, 188-89 (Tex.Civ.App.1977) (same); Walters v. Center Elec., Inc., 8 Wash.App. 322, 327, 506 P.2d 883, 887 (1973) (same). These cases premise their holdings on a perceived "distinction between a privilege to accumulate vacation time from year to year, and a right to be paid for the accumulated vacation if not enjoyed." Lim, supra 45 Haw. at 120, 364 P.2d at 43. They say, accordingly, that the availability of paid vacations does not imply the availability of extra pay in lieu of vacations. That distinction and related argument, however, are too broad and thus miss the point. It is not implausible to argue that, as long as one is employed, he or she does not have an automatic right to cash in (instead of taking) accrued vacation leave, absent an agreement with the employer to that effect; for such an implied cash option would, in effect, be an implied right to work overtime for awhile at double paya right not ordinarily thought of when vacation is the issue. See id. at 121, 364 P.2d at 44. But we are concerned with a much narrower issue here: the compensation rights, if any, of an employee who is discharged before he or she has taken accrued vacation leave and thus has no more employment time in which to do so. Presumably the employer has permitted if not encouraged the employee to accrue rather than take vacation (while continuing to work for pay) on the premise that the employee will remain employed long enough to take it. Indeed, the employer has primary control over (1) the terms of employment and language of all material informing employees of their rights, obligations, compensation, and benefits; (2) the approval of all requests to use accrued leave time; and (3) the employee's exact termination date. See Valeo, supra 18 Wis.2d at 585, 119 N.W.2d at 388. It follows that, in discharge cases, the better rule is the one we have adopted in Jones, supra, putting the burden on the employer to show an agreement limiting compensation for accrued but unused leave. Typically, an employee who voluntarily terminates employment will stop work, take all unused (paid) leave, and resign effective the day after that period of leave has been completed. There is no reason why that same result should not be the norm when an employee is fired, absent a contrary understanding.
[8] Such a qualification might be, for example, an understanding that accrued leave is payable only in compensated time off; otherwise it is lost. Or it might be that accrued leave, however compensable, can be carried forward into the next year only up to a specified maximum.
[9] "In allocating the burdens, courts consistently attempt to distinguish between the constituent elements of a promise or a statutory command, which must be proved by the party who relies on the contract or statute, and the matter of exception, which must be proved by his adversary." McCormick on Evidence § 337 at 787 (2d ed. 1972) (footnote omitted). Cf. 5 Williston on Contracts § 667(A) at 150-51 (3d ed. 1961) (matters of defense must be pleaded and proved by the insurer to be available as a means for defeating recovery on an insurance policy).
[10] Consequently, NRA admits that the discharged employees are entitled to compensation for at least a portion of their accrued leave; NRA does not rely on the premise apropos of Lim, supra, that the right to payment for leave is contingent on actually taking time off while still employed.
[11] For example, Russell Warye testified that he had been told he would "be able to accrue [vacation time] which was not used." William Davidson testified he "was told that the annual leave would be a form of bonus ... if I were terminated."
[12] The trial court's instructions outlining the circumstances in which the jury could find an employee's implied agreement to the 225-hour limit did not deal specifically with all the relevant variables we have described. However, because the instructions followed the Dahl, supra-Borden, supra approach and were no less favorable to the employer (in fact they were more favorable than we have prescribed), we conclude that NRA has no basis for complaint on that ground.
Specifically, following its instruction (quoted in the text above) placing the burden on NRA to show the "agreement to the contrary" defeating the employees' claim, the trial court told the jury:
Agreement to the contrary might be shown by knowledge of an employer's rules or regulations and agreement or acquiescence therein. Custom and usage of a particular employer may form part of the employment contract if known to the employee rather a plaintiff had actual knowledge of the rule in question. In this case the two hundred and twenty-five hour limit on the number of accumulated leave hours for which he could be paid upon termination and with such knowledge, either expressly or by conduct from which an agreement can be implied, agreed to comply therewith are questions to be resolved from the facts and circumstances of each particular case.
If a plaintiff was aware of a memorandum issued by the defendant as to how much unused leave he would be paid for on separation or had reasonable cause to believe such a memorandum existed and continued to work for the defendant and accepts pay for his work he will be bound by the terms of such memorandum as part of his employment contract.
If a plaintiff received a memorandum addressed to all N.R.A. employees and failed to read it or to actually read it he can then be found to have knowledge of the contents as of that date.
If a plaintiff was aware of the defendant's general policy limiting the amount of unused leave an employee would be paid for on termination and he continued to work for the defendant and accepts pay for his work you may use this as evidence that he impliedly agreed to comply therewith depending upon the totality of the facts and circumstances of his particular case.
What a plaintiff thought the notation on his paycheck stub means does not necessarily bind the defendant so as to make what the plaintiff thought a part of his employment contract with the defendant, but it is simply one additional bit of evidence for you to consider.
[13] Appellees' trial memorandum states that (1) prior to 1965, NRA employees could accumulate only up to 45 days of leave time, and that all excess hours were dropped from their records; (2) in 1965, this leave policy was changedin connection with adoption of a new disability planto permit unlimited accrual of "`paid leave hours'"; at that time, NRA restored to employee records all excess leave hours that had previously been earned but dropped under the old policy. Appellees concede that NRA "intended the leave policy to be subject to a proviso that no more than 225 hours (30 days) of the unlimited accrued paid leave hours could be paid to an employee upon separation from NRA." They contend, however, "that they are not bound by this limitation on pay for accumulated paid leave hours because NRA did not take adequate measures to inform [them] of its existence."
[14] As we noted in Johnson, supra at 491 n.2, "even such narrow appellate review was at one time considered violative of the Seventh Amendment." See generally 11 Wright & Miller, supra, § 2819 (1973 & Supp.1979).
[15] NRA also introduced into evidence memoranda to its employees in 1950, 1952, 1957, 1965, and 1974 explaining or alluding to limitations on compensation for leave. The jury reasonably could have found, however, that aside from Harper and Warye, the appellee-employees did not receive and were not otherwise aware of these memoranda or the policies to which they referred.
[16] Both admitted receiving an undated NRA Employee Benefits and Procedures Booklet (Harper received it "in the early 70's") which specifically referred to a 225-hour limitation upon payment for accumulated leave upon termination of employment. Harper testified, however, that he interpreted this reference as applying only to "compensatory leave"an interpretation a reasonable jury readily could have accepted, for the limitation appeared for the first (and only) time under the discussion of Compensatory Leave (which neither Harper nor Warye had accumulated), five pages after the discussion of vacation and sick leave. The booklet stated: "All Compensatory Leave accumulated will be added on to your normal leave accrual and will carry over from year to year. Upon separating from the Association, you will be paid your hourly rate for all leave accumulated up to 225 hours."
[17] Harper and Warye did not argue that NRA deceived its employees with the "stay bonus" memo; nor did they contend that NRA created a material term of the "stay bonus" policy, which it later violated, by estimating a move to Colorado in May 1978 but firing them in November 1976. Presumably, if an employee made such an allegation, it would be probative of the question whether an employee can be said to have agreed to give up compensable accrued leave.
[18] Whenever a party moves in the alternative for judgment notwithstanding the verdict or for a new trial, the trial court denies both motions, and the appellate court concludes it was error to deny the motion for judgment, the appellate court may: (1) order entry of judgment for the moving party; (2) order a new trial; or (3) remand for the trial court to determine whether there should be a new trial. 9 Wright & Miller, supra, § 2540 at 617 (1971).
[1] I confess to wonderment at the majority's position that the NRA "conceded" the former employees' entitlement to the jury instruction which I consider to be fatally flawed. See 821-822. All that the NRA acknowledged was its policy of making financial compensation for unused leave time up to its limit of 225 hours; assuredly the NRA made no concession which went beyond that time limitation.
[2] The majority opinion states that the NRA's contention that its employees were entitled to no compensation beyond the 225-hour limitation "is in the nature of an affirmative defense that must be pleaded and proved by the defendant-employer." See 821. While that assertion unquestionably is an indispensable factor in the majority's rationale, it reflects an unfortunate lack of understanding as to what constitutes an "affirmative defense" for pleading purposes. See, e. g., Super.Ct.Civ.R. 8(c).
[3] Some cases make a clear distinction between the right to accumulate vacation time and the right to receive compensation in lieu of vacation if not enjoyed. See, e. g., Lim v. Motor Supply, Ltd., 45 Hawaii 111, 364 P.2d 38 (1961). The distinction is immaterial in this case, since the NRA agrees that its employees have a vested right to pay in lieu of accrued leave upon separation up to the 30-day limit. I simply note that such an entitlement is not automatic, as the majority suggests.
[4] I am bewildered by the majority's assertion (at 821) that the NRA's answer to the plaintiffs' complaint "was sufficient to trigger the Jones instruction." The Jones case was tried without a jury; there is not a hint in this court's opinion (which dealt with a claim for compensation for four weeks of current but unused leave) as to what might be an appropriate instruction in a jury case. (In this case, it appears that the trial judge simply gave an instruction proposed by the plaintiffs.)
[5] A company's employee policy directives become contractual obligations when, with knowledge of their existence, employees start or continue to work for the employer. Dahl v. Brunswick Corp., 277 Md. 471, 475, 356 A.2d 221, 224 (1976).
[6] The "in the absence of express agreement to the contrary" language in Jones does not suggest otherwise. Jones does not say that absent an agreement to the contrary, an employee allowed to accrue leave may accrue it without limit. Rather, the quoted language, consideredas it properly must bein its context, refers to the effect of a discharge for cause on the initial agreement. Thus, we concluded in Jones that the employer's agreement to allow his employee to take his annual vacation during the summer following the year in which it was earned was not affected by the employee's discharge for cause once the vacation had been earned. Similarly, in each of the cases relied upon the majority, "absent an agreement to the contrary" refers to the effect of a particular event upon the respective employment agreements otherwise providing for the accrual of paid leave. Accordingly, absent an agreement to the contrary, accrued vacation time for the year in question was not affected by discharge, Harbridge v. Greyhound Lines, Inc., supra; Berteau v. Wiener Corp., supra, by strike, Smith v. Kingsport Press, Inc., supra; Textile Workers Union v. Paris Fabric Mills, supra; Valeo v. J. I. Case Co., supra, by the cessation of business, In re Wil-low Cafeterias, supra, by retirement, Olson v. Rock Island Bank, supra, or by the effective date of a replacement collective bargaining agreement. Pfeifer v. A. F. Lowes Lumber Co., supra. None of the cases supports the majority's fanciful theory that absent an agreement to the contrary, an employee may accrue paid leave virtually until doomsday and still take it with him. Cf. Walters v. Center Electric, Inc., supra (where there was no evidence to show the total amount of time which an employee might accrue, it was within the trial court's discretion to find that employee's accrual of three and two-thirds weeks' vacation was reasonable).
[7] In a similar vein, the majority's suggestion (slip op. at 18) that the employees could have resigned before becoming bound by the 225-hour limitation, and thereby have become entitled to payment for all accrued and unused leave, is a particularly attenuated type of dictum. (It also strikes me as being contrary to public policy.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261674/ | 111 Cal.Rptr.2d 439 (2001)
91 Cal.App.4th 1276
Sue GAMET et al., Plaintiffs and Appellants,
v.
Christopher BLANCHARD et al., Defendants and Respondents.
No. G020908.
Court of Appeal, Fourth District, Division Three.
August 29, 2001.
Review Denied November 14, 2001.
*441 Sue Gamet, in pro. per.; and Kurt A. Stiefler, Woodland Hills, for Plaintiffs and Appellants.
Martin P. Eramo, Laguna Beach, for Defendant and Respondent Christopher Blanchard.
Poliquin, Goodspeed, Mulder & Skripko and Christopher Mulder, for Defendants and Respondents Ron Cordova and Cordova Accountancy Corporation.
*440 OPINION
MOORE, J.
Sue Garnet and American Solutions, Inc. (ASI) appeal from a postjudgment order denying a motion to set aside a judgment of dismissal in their action against Christopher Blanchard, Ron Cordova and Cordova Accountancy Corporation (Cordova). Garnet argues it was an abuse of discretion to deny her relief, and she contends the original dismissal was unwarranted. ASI contends an order allowing its counsel to withdraw never became operative, so all subsequent orders against it were invalid. We conclude Garnet's motion to vacate the judgment against her should have been granted.
Blanchard and Cordova move to dismiss ASI's appeal as untimely filed. When the notice of appeal was filed, it was too late to appeal from the judgment itself, and ASI was not a party to the set-aside motion. Therefore, we agree ASI's appeal must be dismissed. The judgment against Garnet is reversed and remanded.
I
FACTS
According to the complaint, ASI was a computer sales business owned and operated by Garnet and Blanchard. Garnet held 51 percent of the stock, Blanchard 49 percent, and they were the sole directors. Blanchard was treasurer and chief financial officer, and presumably Garnet held the remaining corporate positions.
The complaint alleged, in essence, that Blanchard in various ways took money out of ASI for personal use, altered the books, locked Garnet out of the accounting system by changing the password, and neglected to have the company pay sales taxes. Causes of action were set out for breach of fiduciary duty, fraud, negligent misrepresentation, constructive fraud, conversion, negligence, and money had and received.
Cordova was ASI's accountant. The complaint alleges it failed to discover Blanchard's misdeeds and assisted in his misconduct. This formed the basis for breach of fiduciary duty and negligence claims.
Blanchard filed a cross-complaint against Garnet and ASI. In a nutshell, it said Garnet was the wrongdoer. Blanchard *442 alleged Garnet took the corporate assets along with the books and records, held invalid meetings to remove him as director and officer, and then shut down the business. He asserted Garnet falsified the bookkeeping records to make him appear guilty of embezzlement, telling vendors and customers he stole from the company. The cross-complaint asserted these actions amounted to a breach of fiduciary duty and interference with prospective economic advantage, and it requested dissolution of the corporation.
In December 1995, counsel for Garnet and ASI, Horton, Barbara & Reilly, moved for leave to withdraw, citing an undisclosed conflict of interest. On January 10, 1996, Garnet wrote directly to the trial judge, urging him to deny the motion. The letter came from Rapid City, South Dakota. Garnet explained she was living with her parents, having become permanently disabled after a scuba accident shattered a disc in her neck. Garnet said her lawyer wanted to withdraw so he could defend the owner of the scuba outfit in litigation by its insurer. Nothing in the record reflects on the veracity of this assertion one way or the other. In the course of the letter, Garnet also said she could not work, had no money, and could not travel without assistance.
On January 23, 1996, the trial judge granted the motion to withdraw, and simultaneously set a trial readiness conference for April 5, 1996. The order entered states: "NOTICE IS HEREBY GIVEN that on January 23, 1996 in Department 11, the Court granted the Motion to Withdraw as Plaintiffs attorney. Plaintiffs Susan Garnet's and American Solutions, Inc.'s last known address is 2201 Cherry Avenue, Rapid City, South Dakota 57701; 605*343-7138. Plaintiffs are now in propria persona and may wish to seek legal counsel and the failure to take appropriate action may result in serious legal consequences. This order shall not be effective until proof of its service is filed, showing service upon the client and all other parties who have appeared in this action. IT IS SO ORDERED. DATED: January 23, 1995 [sic]" No proof of service appears in the record, nor could we find any in our independent review of the superior court file.
The same day, the trial judge wrote to Garnet at her Rapid City address, telling her the motion to withdraw had been granted. He advised her the case was set for trial on May 6, 1996, and a trial readiness conference was scheduled for April 5, 1996, at 8:30 a.m. The letter ended with the admonition "you will need to have counsel by that time or be prepared to go forward by yourself."
Blanchard and Cordova pressed ahead with three discovery motions. On February 6, 1996, the trial court heard Cordova's motion to compel Garnet's deposition. Garnet did not appear and had not filed opposition, and Cordova told the judge she had agreed to a date later in the month. At the hearing, the judge stated: "I'm calling this case because I thought we'd chat about how we might deal with it logistically. I am somewhat sympathetic about Ms. Garnet's situation because I believe her counsel, not too long ago, departed, so I'm in a position to jam her . . . I'd like to keep the heat on . . . to see what she is going to do." The upshot was an order that Garnet appear for her deposition on February 26, 1996. Garnet never showed up.
This led to Cordova's February 26, 1996 ex parte motion to continue the discovery cutoff and trial. The trial judge postponed decision, and set the application for hearing to follow the trial readiness conference. On March 12, 1996, the court heard a third motion, Blanchard's request to compel ASI to answer interrogatories. The judge granted the motion, ordered ASI to supply *443 answers within 30 days, and sanctioned both the company and former counsel $250.
The trial readiness conference was held on April 5, 1996, but neither Garnet nor ASI appeared. The trial judge issued an order to show cause why the case should not be dismissed, returnable on April 30, 1996. The order was served on Sue Garnet and the only attorney who represented both the corporation and Garnet in the cross-complaint, Leo J. Moriarty. Moriarty had been associated as attorney of record by both plaintiffs' counsel, Horton, Barbaro & Reilly. When the Horton, Barbara & Reilly firm was relieved the previous January, neither the moving papers nor the court's order mentioned Moriarty. The order to show cause was not served on the corporation or Horton, Barbaro & Reilly.
At the April 30 hearing on the dismissal motion, Garnet was represented by counsel who made a special appearance. There is no court reporter's record of the proceedings.[1] Whatever happened, the result was a minute order recording that the judge struck the answer to the cross-complaint, vacated the trial date and awarded costs to Blanchard and Cordova. Inexplicably, the subsequent judgment recites an entirely different result from the April 30 dismissal hearing. It does not even mention the striking of the answer to the cross-complaint. Instead, it states the complaint was dismissed with prejudice.
Garnet apparently learned of the decision shortly thereafter. She wrote to the trial judge on May 2, 1996, asking him to reconsider. Her rambling letter claimed ignorance of the discovery sanction against ASI and the missed dates. Garnet put the blame on counsel, saying she was not told of the upcoming dates and the files were in disarray. She said she needed more time to find new counsel, citing an accident that had left her completely disabled and family needs. She explained her 35 year old brother had recently died following a stroke and five operations, leaving two small children. This letter fell on deaf ears. The complaint was dismissed with prejudice by judgment filed May 10, 1996.
On November 5, 1996, Garnet moved to vacate the dismissal on the ground of inadvertence, excusable neglect or surprise.[2] (Code Civ. Proa, § 473, subd. (b).) The motion states, "plaintiff is under the impression the true facts regarding plaintiffs inability to prosecute the case was not presented to the court," and "plaintiff seeks to have the true facts represented to the court regarding her inability to prosecute the case. . . ." A supporting declaration essentially repeats what Garnet told the judge in her earlier letters.
Garnet argued the motion. She claimed to have a new attorney ready to handle the case, and asked about the status of the cross-complaint, noting it had not been dismissed. The trial judge responded, "I don't know. I thought that was over with, too," and denied relief, without explanation.[3]
*444 Notice of appeal was filed by Garnet for herself and ASI on December 20, 1996. After appellant's opening brief was filed, we notified ASI that its appeal would be dismissed unless it retained counsel, and it did so.
III
DISCUSSION
Sue Garnet
The ruling on a motion to vacate will only be disturbed on appeal where there is a clear showing of abuse of discretion and a manifest miscarriage of justice. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118, 95 Cal. Rptr.2d 113.) The test for abuse of discretion is "whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479, 243 Cal. Rptr. 902, 749 P.2d 339.)
The trial court's discretion is not absolute: "The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice." (Bailey v. Taaffe (1866) 29 Cal. 422, 424.) An exercise of discretion is subject to reversal on appeal where no reasonable basis for the action is shown. (Common Cause v. Stirling (1983) 147 Cal.App.3d 518, 522, 195 Cal.Rptr. 163.)
We conclude there was an abuse of discretion because of a combination of events. Nowhere in the record is there any indication the trial judge gave any consideration to Garnet's alleged personal and family traumas. The judge's comments that he could "jam" Garnet and that he wanted to "keep the heat on,"[4] when combined with the unexplained judgment dismissing the action shortly thereafter, seem arbitrary and create the appearance of substantial unfairness. While keeping cases moving through the court system and preventing unreasonable delay is certainly an important goal, it is a goal meant to-serve justice by resolving disputes as speedily as possible. When disposing of cases becomes an end in itself, justice and fairness can easily fall by the wayside, and it appears that is what happened here.
Garnet received information that was plainly inaccurate. Had she known at the time Horton, Barbaro & Reilly was relieved as counsel and that ASI must immediately retain another attorney, this case might have proceeded on a much more level playing field. She was not so advised, however, despite the requirements of California Rules of Court, rule 376(d).[5] She was justifiably confused by *445 the judgment dismissing her complaint, which failed to address the cross-complaint, was inconsistent with the prior minute order, and continued to list Horton, Barbaro & Reilly and Leo Moriarty as counsel. Based on the confusing paperwork, even a licensed attorney stepping into this case would have had trouble figuring out exactly what had happened.
We further note that pro per litigants are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 35 Cal. Rptr.2d 669, 884 P.2d 126.) They are, however, entitled to treatment equal to that of a represented party. Trial judges must acknowledge that pro per litigants often do not have an attorney's level of knowledge about the legal system and are more prone to misunderstanding the court's requirements. When all parties are represented, the judge can depend on the adversary system to keep everyone on the straight and narrow. When one party is represented and the other is not, the lawyer, in his or her own client's interests, does not wish to educate the pro per. The judge should monitor to ensure the pro per is not inadvertently misled, either by the represented party or by the court. While attorneys and judges commonly speak (and often write) in legal shorthand, when a pro per is involved, special care should be used to make sure that verbal instructions given in court and written notices are clear and understandable by a layperson. This is the essence of equal and fair treatment, and it is not only important to serve the ends of justice, but to maintain public confidence in the judicial system.
The confusing, indeed misleading, nature of the various orders and communications that Garnet received from the trial court is particularly important in light of Garnet's (involuntary) pro per status. As noted above, pro per litigants are not entitled to any special treatment from the courts. (Rappleyea v. Campbell, supra) But that doesn't mean trial judges should be wholly indifferent to their lack of formal legal training. Clarity is important when parties are represented by counsel. How much more important is it when one party may not be familiar with the legal shorthand which is so often bandied around the courtroom or put into minute orders?
There is no reason that a judge cannot take affirmative stepsfor example, spending a few minutes editing a letter or minute order from the courtto make sure any communication from the court is clear and understandable, and does not require translation into normalspeak. Judges are charged with ascertaining the truth, not just playing the referee. (See Guardianship of Simpson (1998) 67 Cal.App.4th 914, 79 Cal.Rptr.2d 389.) A lawsuit is not a game, where the party with the cleverest lawyer prevails regardless of the merits. (Adams v. Murakami (1991) 54 Cal.3d 105, 284 Cal.Rptr. 318, 813 P.2d 1348.) Judges should recognize that a pro per litigant may be prone to misunderstanding *446 court requirements or ordersthat happens enough with lawyers and take at least some care to assure their orders are plain and understandable. Unfortunately, the careless use of jargon may have the effect, as in the case before us, of misleading a pro per litigant. The ultimate result is not only a miscarriage of justice, but the undermining of confidence in the judicial system.
Conventional wisdom tells us that we can learn a great deal from watching youngsters. Sometimes on the playground or the kickball field, things simply go so far awry that the only fair resolution is a "do-over." This case is the judicial equivalent. Events diverged so far from any reasonable person's idea of a fair day in court that a "do-over" is surely warranted. Given all of the facts present, dismissing Garnet's case resulted in a manifest miscarriage of justice. Refusing to vacate that judgment was an abuse of discretion.
American Solutions, Inc.
From a totality of ASI's arguments, it seems to be crying foul because of a series of procedural irregularities that amount to a lack of due process. We agree the system did not work as it should have in providing ASI with notice and an opportunity to be heard. The protection of the due process clause extends to all legal "persons," including corporations. (Pembina Consol. Silver Mining & Milling Co. v. Pennsylvania (1888) 125 U.S. 181, 188-189, 8 S.Ct. 737, 31 L.Ed. 650.)
The language of the January 23, 1996 order relieving counsel mandated the filing of a proof of service on the clients before it had any effect. As no such proof of service is in the record or found in an independent search of the superior court file, it would appear the corporation's counsel, Horton, Barbaro & Reilly, was never actually relieved because the order never became operative. Yet no notice of any of the subsequent proceedings was given by the court or the parties to that firm or to Leo J. Moriarty.[6] (Code Civ. Proa, § 1015.) Even assuming the attorneys had been relieved, however, the notices served on the corporation were all faulty. While Garnet wrote to the judge, telling him she was living with her parents in South Dakota, she did not mention the corporation's address. Both the court and counsel sent post-January 23, 1996 notices to the corporation at Sue Garnet's South Dakota address, despite a notice of change of address filed the previous October 31 on the corporation's behalf. The address was in Garden Grove, California.
The fundamentals of due process include notice and an opportunity to be heard. The order relieving its counsel never became operative. Notice of all court proceedings subsequent to the motion to be relieved was inadequate. Because ASI did not receive adequate notices, the judgment against ASI is void on the face of the record. Even so, as a procedural point, ASI has yet to properly attack the judgment. The notice of appeal was filed more than 180 days after the date of entry of judgment and so any appeal from the judgment itself would be untimely. (Cal. Rules of Court, rule 2(a).) We observe that ASI was not a party to the set-aside *447 motion, so ASI has no standing to appeal from the order denying that motion. Nonetheless, ASI is at liberty to file a setaside motion of its own. A judgment entered without notice is void and can be attacked at any time. (See Morgan v. Clapp (1929) 207 Cal. 221, 224, 277 P. 490; Lovato v. Santa Fe Internal Corp. (1984) 151 Cal.App.3d 549, 554, 198 Cal.Rptr. 838.)
Ill
DISPOSITION
Blanchard and Cordova have filed two requests for judicial notice pertaining to the corporate status of ASI. Those requests are granted. This court will take notice of the document attached to the request for judicial notice filed with this court on February 8, 1999 and of the Secretary of State's domestic corporation certificate of Filing and Suspension filed with this court on May 8, 2001.
We must grant the Blanchard and Cordova motion to dismiss ASI's appeal as untimely filed. The motion to dismiss is granted, without prejudice to ASI's appearing through an attorney in the trial court. If the void judgment is not set aside, the corporation will then have its right to an appeal.
As to Garnet, the trial judge abused his discretion when he denied a request to set aside the dismissal of Garnet's action. The order appealed from is reversed and her case is remanded to the trial court for further proceedings. Garnet is entitled to her costs.
SILLS, P.J., concurs.
BEDSWORTH, J., dissenting:
I dissent.
Like my colleagues, I sympathize with Sue Garnet's misfortune. And I regret the intemperate choice of words of the trial judge. Unlike my colleagues, I cannot find "there was an abuse of discretion because of a combination of events," and I cannot find authority for reversal because of "the appearance of substantial unfairness." And while reliance by the majority upon the rules of kickball will ordinarily make opinions more intelligible to me, I fear that it will not provide much guidance to trial judges trying to discern from this opinion just how they must handle a pro per litigant.
My colleagues recognize in one sentence the hoary but still vigorous rule that "pro per litigants are not entitled to any special treatment from the courts," but devote several paragraphs to setting out the kinds of special treatment trial judges will be obliged to accord them under this opinion.
Pro per litigants have become more common in recent years and seem destined to become a much larger portion of the trial court docket than they have been in the past. It may be time to reassess our case law regarding them. And while I agree with much that is said in the majority opinion, and might be prepared to give a second look to our rules regarding pro per litigants, I think an ad hoc reversal which tells trial judges to treat pro pers the same as they treat represented litigantsonly differentaccomplishes little in the way of addressing the problem and does a disservice to the people who must deal with pro pers every day.
As near as I can determine, the majority orders a "do-over" (their term) in this case because appellant received confusing or misleading information from the trial court. But appellant makes no such claim. And probably with good reason. After all, there is no doubt that she knew of the trial readiness conference, appeared (through counsel) at the show cause hearing, and knew unmistakably that the complaint had *448 been dismissed within days after the fact. Indeed, she wrote to the trial judge to ask for reconsideration even before notice of entry of judgment was served.[1]
As to the trial judge's failure to explain his reasons for dismissal of the action, this is another instance in which I wish my trial colleague had proceeded differently, but the oversight is not grounds for reversal. A judgment of a lower court is presumed to be correct, and error must be affirmatively shown. (Jacques Interiors v. Petrak (1987) 188 Cal.App.3d 1363, 1369, 234 Cal.Rptr. 44.) In this case, nothing has been shown except ill-chosen remarks, which the majority purports to recognize as possibly no more than venting by "a busy trial judge trying to keep control of his calendar, with no rancor intended." (Maj. opn., ante, fn 4.) I cannot find in that a basis for reversal.
I
As to Garnet, the only issue before us is whether the trial judge erred in denying the motion to vacate. I cannot agree there was an abuse of discretion.
Garnet never appealed from the order dismissing the complaint, so we have no power to review it. A notice of appeal filed after denial of a motion to vacate a judgment confers no jurisdiction to review the merits of the judgment. It presents only the propriety of the order refusing to set aside the judgment. (In re Marriage of Eben-King & King (2000) 80 Cal. App.4th 92, 109, 117, 95 Cal.Rptr.2d 113.)
Even if members of this court would have reached a different result, the trial judge's decision was within the bounds of reason. Despite Garnet's problems, it was reasonable to infer none prevented her from appearing for the trial readiness conference, or at least asking that it be continued to a later date. Garnet never said she was unable to travel, she had agreed to travel to California for her deposition, and she made the trip to argue the motion to vacate. The majority's claim that she was unaware of the trial readiness conference date is unconvincing, since the trial judge specifically told her it was set for April 5, 1996, when he wrote to her after granting counsel's motion to withdraw. And Garnet's willingness to communicate directly with the judge quite reasonably raises the question why she did not notify the judge of her problems prior to the hearing, or ask for a postponement. The upshot is that I cannot say the trial judge abused his discretion when he declined to vacate the judgment.
II
Turning to ASI, my colleagues grant it relief in the guise of dismissing its appeal. They invite ASI to move the trial court to set aside the May 1996 judgment, on the ground that a void judgment may be vacated at any time. And, if I take their meaning correctly, they imply that should the trial judge deny the motion, they will reverse him on appeal.
I think these suggestions unwise. Beyond that, neither the record nor the law support the conclusion the judgment is void.
ASI certainly knew of the order allowing counsel to withdraw because Garnet knew. After all, suit on behalf of ASI was *449 brought by Garnet, the corporation's majority shareholder, one of its two directors, and apparently its president as well. In fact and in substance, ASI had notice of the order of withdrawal. There is no denying that the withdrawal order did not become operative by its terms, never having been served as required. The question I think this presents is whether we should focus on formal defects even when the substance is there. And I think the answer should be "no."
The authorities cited by the majority would not support finding this judgment void. Morgan v. Clapp (1929) 207 Cal. 221, 277 P. 490 found the judgment before it valid. In Lovato v. Santa Fe Internal Corp. (1984) 151 Cal.App.3d 549, 198 Cal. Rptr. 838, the court set aside a default judgment where a corporation had neither actual nor constructive notice of the hearing at which the judgment was entered. Notably, there the corporation filed a timely motion to set aside the default and a timely notice of appeal. Here, ASI had actual notice of the dismissal order, it did not move to set it aside, and it did not file a timely notice of appeal. I would dismiss the appeal of ASI as untimely and go no further.
I can find no basis for a reversal in this case other than my own chagrin that the trial judge inappropriately expressed his desire to force a reluctant litigant into court. And since the Legislature has inexplicably failed to recognize my disapproval as a grounds for reversal, I would affirm the judgment.
NOTES
[1] One difficulty in ascertaining the facts is the unexplained lack of use of a court reporter with the exception of two very short hearings.
[2] In her brief, Garnet states she retained an attorney to file the motion on behalf of herself and ASI, but he left off the corporation and "deceptively" filed it in her name rather than under his own.
[3] The record from November 5, 1996 is not clear. It appears there were two hearings of the 473 motion on that day. The first occurred without Garnet and without a court reporter. Apparently Garnet, who traveled from South Dakota, arrived late. Outside the presence of the other parties, the court nevertheless heard from Garnet, this time with a court reporter.
[4] We are mindful they could have been the ramblings of a busy trial judge trying to keep control of his calendar, with no rancor intended.
[5] Until this court advised appellants the corporation's appeal would be dismissed because it had to appear through an attorney, no one advised the corporation it could not represent itself. In California a corporation may not represent itself, except in a small claims proceeding. This prohibition stems from the notion a corporate representative who would likely appear on behalf of the corporation would be engaged in the unlicensed practice of law. (Merco Construction Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 147 Cal.Rptr. 631, 581 P.2d 636.) The ban on corporate self-representation does not prevent a court from granting a motion to withdraw as attorney of record, even if it leaves the corporation without representation. Such an order puts pressure on the corporation to obtain new counsel, or risk forfeiting important rights through nonrepresentation. (Ferruzzo v. Superior Court (1980) 104 Cal.App.3d 501, 504, 163 Cal.Rptr. 573.) It is the duty of the trial judge to advise the representative of the corporation of the necessity to be represented by an attorney. (Van Gundy v. Camelot Resorts, Inc. (1983) 152 Cal.App.3d Supp. 29, 31, 199 Cal.Rptr. 771.) Yet every opportunity to so advise was missed by the court in this case. As already mentioned, the rule of court requiring such notice was not followed, the January 23, 1996 order relieving counsel implied the corporation could represent itself, and the letter sent by the judge to Garnet that same day did not mention the corporation.
[6] Left unexplained is the lack of any mention in the order relieving counsel of one of the corporation's attorneys, Leo J. Moriarty. Moriarty was associated as counsel of record by Horton, Barbaro & Reilly, but was the corporation's only attorney on the cross-complaint. The record contains neither a notice of disassociation of attorneys from Moriarty on the complaint nor an order relieving Moriarty as the corporation's attorney of record on the cross-complaint. Yet after Horton, Barbaro & Reilly was ordered relieved, Moriarty virtually disappeared from the case.
[1] In that letter she asserts, "I would have been at this conference myself but my family needed me back in South Dakota since my mom needed to be out of town on a matter that couldn't be rescheduled and my father is really having problems with the loss of his only son." This is not the complaint of someone who didn't know about the conference, but rather the explanation of someone who decided her mother's family business was more important. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322605/ | 676 S.E.2d 773 (2009)
HAMILTON
v.
The STATE.
No. A08A2045.
Court of Appeals of Georgia.
March 26, 2009.
*776 Charles H. Frier, Smyrna, for appellant.
Paul L. Howard, Jr., Dist. Atty., Marc A. Mallon, Asst. Dist. Atty., for appellee.
ADAMS, Judge.
Pierre Hamilton was indicted for a single count of malice murder. A jury acquitted Hamilton of murder and of involuntary manslaughter based upon battery, but convicted him of voluntary manslaughter. Hamilton now appeals.
Viewed in the light most favorable to support the verdict, the evidence showed that in 2002, Hamilton was a frequent resident of the Super 8 motel on Cone Street in Atlanta. At around 4:30 or 5:00 p.m. on the afternoon of October 3, 2002, Michelle Johnson, the motel's housekeeping supervisor, saw Hamilton enter Room 518 of the motel with a young woman she later identified as Laura Pegues. The next morning, housekeeper Rose Samuels found Pegues' body lying on a housekeeping cart inside a supply closet on the fifth floor of the motel. Police observed that Pegues appeared to have been bludgeoned, and blood was dripping from her mouth and nose.
The medical examiner testified that Pegues was killed by strangulation, which he estimated from her injuries would have required at least four to five minutes of moderate, constant pressure on the carotid artery or trachea, and would have taken even longer, if the pressure was applied intermittently. She had marks on both sides of her neck. The doctor also observed rows of bruising on her scalp, which were consistent, inter alia, with her being struck by the knuckles of a fist. In addition, she had a black eye and other abrasions that appeared to have occurred around the time of her death. The doctor testified that a person being strangled would have an "enormous amount of reaction," such that the person applying pressure to the victim's neck would know that they were cutting off the victim's air supply. Forensic analysis demonstrated that blood samples taken from Room 518 matched both Pegues' and Hamilton's blood, or that of their identical twins.
Approximately three weeks after Pegues' body was discovered, Hamilton appeared unexpectedly at the home of his friend, Levon Daniels. Hamilton told Daniels he had something he needed to talk about, but he was reluctant to tell Daniels what it was. Hamilton spent the night at Daniels' house. The next morning Hamilton told Daniels that he met Pegues that night and took her back to the motel with him. Daniels testified that "whenever they finished whatever it was they were doing," Hamilton decided to take a shower. When he came out of the bathroom, he discovered that $600 in cash was missing from his pants.
Hamilton accused Pegues of taking the money, and when she denied it, he became agitated. They began to struggle, and Hamilton put Pegues in a headlock and told her to tell him where the money was. They went around the room in this position looking for the money. He kept her in the headlock because she was struggling and he wanted to keep her from screaming. At some point, Pegues went limp, and he eventually located the money hidden in her vagina. When he realized she was dead, he paid someone money to help him clean the room and put Pegues' body on the cart. They took the body *777 down the hallway and left it in the closet. Hamilton told Daniels that he did not mean to kill Pegues.
1. Hamilton first asserts that the trial court erred in admitting copies of the motel's lock interrogation log over his counsel's objection. Michelle Johnson, the housekeeping supervisor, testified that the motel kept lock interrogation logs in the regular course of its business. She said that each time someone used a key card to enter a guest room, the motel computer made a record of the card used and the time. The lock interrogation logs reflect these computerized entries, tracking when employees and guests enter a particular room. Hamilton objected at trial on the ground that Johnson was not the proper person to lay the foundation because she was the housekeeping supervisor, not the custodian of record.
But Johnson did not have to personally maintain the records in order to lay a proper foundation for their admission:
The business records exception does not require that the person laying the foundation for the admission of business records be the custodian of the records. Instead, it requires that the record offered to prove an act or transaction be made in the regular course of business and that it is the regular course of business to make the record at the time of the act or transaction.
(Punctuation and footnotes omitted.) Neill v. State, 247 Ga.App. 152, 153(1), 543 S.E.2d 436 (2000). "The witness's lack of personal knowledge regarding how the records were created does not render them inadmissible, but merely affects the weight given to the evidence." (Footnote omitted.) Santana v. State, 283 Ga.App. 696, 698(1), 642 S.E.2d 390 (2007). Johnson's testimony was sufficient to lay a proper foundation, and the logs were properly admitted. Id.
Although Hamilton also argues that the admission of this evidence violated his right to confront the witnesses against him, he raised no such objection at trial. The "failure to make a contemporaneous objection on the specific ground urged on appeal results in waiver." (Punctuation and footnote omitted.) Moody v. State, 279 Ga.App. 440, 444(4), 631 S.E.2d 485 (2006). In any event, business records properly admitted under the "firmly rooted" hearsay exception do not violate "a defendant's right of confrontation under the Federal and State constitutions." Brown v. State, 268 Ga. 76, 81, 485 S.E.2d 486 (1997).
2. Hamilton next argues that the trial court erred when it denied his request to re-cross-examine Johnson after the State's re-direct. He asserts that he wanted to address Johnson's "new" testimony on re-direct that she was "confident" that the woman she saw enter Room 518 with Hamilton was the woman who was found dead the next day.
But in order "to preserve the right to complain about a ruling limiting cross-examination, a party must either ask the questions he desires to ask or state to the court what questions he desires to ask and then interpose timely objection to the ruling of the court denying him the right to propound the questions." (Punctuation and footnote omitted.) Gober v. State, 249 Ga. App. 168, 172(3), 547 S.E.2d 656 (2001). Because Hamilton failed to follow this procedure, he waived his right to raise the issue on appeal. Moreover, Johnson had already testified on direct that she saw Hamilton and Pegues entering Room 518 the day before Pegues' body was discovered. Thus, Hamilton had the opportunity to cross-examine her on this subject, and no abuse of discretion occurred. See Freeman v. State, 257 Ga. App. 232, 234(2), 570 S.E.2d 669 (2002).
3. Hamilton further contends that the trial court erred in failing to give the complete charge on accident he requested. The trial court, however, charged the jury on accident as defined under OCGA § 16-2-2. We conclude that when considered as a whole, the trial court's charge "covered the principle of law involved in the defendant's request, and the failure to charge in the exact language requested does not constitute reversible error." (Citation and punctuation omitted.) Pennamon v. State, 248 Ga. 611, 614(3), 284 S.E.2d 403 (1981). See also Fincher v. State, 289 Ga.App. 64, 66(1), 656 S.E.2d 216 (2007).
*778 4. Hamilton argues that the trial court erred in denying his motion for a mistrial on the ground that the prosecutor twice mentioned in his argument that battery, upon which a jury verdict of involuntary manslaughter would be based, was a misdemeanor. Hamilton's counsel did not object at the time, and in his own closing he cautioned the jury not to consider punishment in reaching his verdict. In addition, the trial court charged the jury that they were not to concern themselves with punishment. Hamilton's counsel made his motion for a mistrial after the jury charge. The trial court denied the motion, because Hamilton did not make a contemporaneous objection and because the jury had been instructed to disregard sentencing. The trial judge asked whether Hamilton's counsel wanted curative instructions, but counsel replied that he merely wanted his motion granted.
After deliberations began, the jury asked to be re-charged on the definitions of malice murder, voluntary manslaughter and involuntary manslaughter. At this point, Hamilton's counsel did request curative instructions. In re-charging the jury, the trial judge specifically instructed the jury, at counsel's request, to disregard any reference to "misdemeanor" in the State's closing argument. Hamilton renewed his motion for a mistrial, and the judge called the jury back to instruct them, again at Hamilton's request, that all the offenses they were considering were felonies. The court also repeated its instruction that the jury not concern themselves with punishment. Afterward, Hamilton renewed his motion for a third time.
But "[a] defendant must object to the alleged impropriety at the time it occurs in order to afford the trial court the opportunity to take remedial action. The failure to do so generally results in a waiver of the defendant's right to urge the impropriety of the argument on appeal." (Citations and punctuation omitted.) Mullins v. State, 270 Ga. 450(2), 511 S.E.2d 165 (1999). See also Butler v. State, 273 Ga. 380, 383-384(8), 541 S.E.2d 653 (2001) (waiting until the end of closing argument to move for a mistrial was untimely). "When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial." (Citation omitted.) Todd v. State, 261 Ga. 766, 767(2)(a), 410 S.E.2d 725 (1991). See also Ford v. State, 255 Ga. 81, 90, 335 S.E.2d 567 (1985).
We cannot say that the prosecutor's argument in reasonable probability changed the result of the trial. The trial court twice instructed the jury not to consider punishment and further instructed them to disregard the objectionable portion of the State's argument. The court also honored Hamilton's request to inform the jury that all the charges in the case were felonies.
Moreover, "[s]o long as the court does not relate anything to the jury about possible sentences for the crimes charged, there is no error; and the use of the terms `felony' and `misdemeanor,' standing alone, does not amount to such an error." (Citations omitted.) Quintana-Camporredondo v. State, 275 Ga.App. 859, 861(2), 622 S.E.2d 66 (2005). See also Fletcher v. State, 197 Ga.App. 112, 113(3), 397 S.E.2d 605 (1990). And because neither the State nor the trial court said anything about possible sentences for the charged offenses, the issue of punishment was not improperly interjected into the jury's deliberations. Bellamy v. State, 272 Ga. 157, 159(4), 527 S.E.2d 867 (2000).[1]
5. Hamilton asserts that the jury's verdict of voluntary manslaughter was incorrect because the evidence supported, at most, a finding of involuntary manslaughter. We disagree.
One commits the crime of voluntary manslaughter "when he causes the death of another human being under circumstances which would otherwise be murder *779 and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person." OCGA § 16-5-2(a). Hamilton confessed to his friend that he had killed Pegues after he became agitated when she would not return his money. The issue of whether he intended to kill her was peculiarly a question for the jury,
and a jury's finding on that issue will not be disturbed on appeal unless contrary to the evidence and clearly erroneous. Criminal intent rarely can be proved by direct evidence, but its existence may be inferred by the trier of fact upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Additionally, a presumption exists that persons of sound mind and discretion intend the natural and probable consequences of their acts.
(Citations and punctuation omitted.) McKibbons v. State, 226 Ga.App. 452, 453(1), 486 S.E.2d 679 (1997). We find that the evidence in this case was sufficient to support the jury's verdict of voluntary manslaughter beyond a reasonable doubt.
6. Hamilton contends that the trial court erred in denying his motion for new trial on the ground of ineffective assistance of trial counsel. We will affirm a trial court's finding that a defendant has not been denied effective assistance of trial counsel unless it is clearly erroneous. Botelho v. State, 268 Ga.App. 129, 132(3), 601 S.E.2d 494 (2004). Moreover,
[t]he two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), asks whether counsel's performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's deficiency.
(Footnote omitted.) Bruce v. State, 252 Ga. App. 494, 498(2), 555 S.E.2d 819 (2001).
(a) Hamilton first argues that his counsel was ineffective in failing to object or move for a mistrial when the prosecutor stated in closing argument that defense counsel "needs you to misunderstand the law of reasonable doubt." He asserts that this was an impermissibly unflattering characterization of his trial counsel. At the hearing on the motion for new trial, Hamilton's trial attorney testified that he thought it was a fair argument and explained that in general he believed that objecting during closing argument could pose a risk "unless you can get the judge to sustain you and embarrass the prosecutor." Otherwise, an overruled objection could hurt the lawyer's credibility and ultimately hurt the client.
"In general, [such] matters of reasonable trial strategy and tactics do not amount to ineffective assistance of counsel." (Citation and punctuation omitted.) Jackson v. State, 281 Ga. 705, 708(6), 642 S.E.2d 656 (2007). "The fact that [Hamilton] and his. . . present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that [Hamilton] received representation amounting to ineffective assistance of counsel." (Citation and punctuation omitted.) Muller v. State, 284 Ga. 70, 73-74(3), 663 S.E.2d 206 (2008). Accordingly, Hamilton cannot establish ineffective assistance of trial counsel on this ground.
(b) Hamilton asserts that his trial counsel was also ineffective in advising him not to testify on his own behalf.
The trial judge questioned Hamilton on the record about his decision not to testify. She asked him whether he had had time to confer with his attorney, and whether he had in fact done so. She also told him that he did not have to testify, but that it was his decision whether he wanted to testify. Hamilton indicated that he understood and that he had sufficient time to confer with his attorney. He then indicated that he had reached the decision not to testify.
Moreover, his attorney testified at the hearing on the motion for new trial that he did not recall that Hamilton ever wanted to testify. Hamilton told him that two other *780 men killed Pegues. The attorney pointed out that they did not know who the other two men were and that the evidence did not really support that defense since he was seen going into the room with Pegues and both her blood and his were found there. The attorney told Hamilton that he did not think that such a defense would be "a good one to put before the jury." He also advised Hamilton of the potential issues he would face on cross-examination in light of the evidence, but the lawyer said he did not force him not to testify.
At the hearing, Hamilton said that he wanted to testify at trial, but his attorney advised against it. He said that he wanted to tell the truth on the stand and explain that he did not mean to kill Pegues. He would also say that Pegues already had the black eye and the bruises when he met her that night. Nevertheless, he admitted that he had lied to his trial attorney and told him that two other men had killed her.
Although Hamilton said he told his attorney he wanted to testify, he admits that he lied to him about the circumstances of Pegues' death. In view of this lie, his attorney advised him not to testify because the evidence did not support his story. Accordingly, trial counsel's advice to Hamilton "was tactical in nature." Wroge v. State, 278 Ga. App. 753, 756(2), 629 S.E.2d 596 (2006). And although Hamilton apparently now regrets his decision not to testify, his attorney's advice was based upon misinformation Hamilton provided and under these circumstances, "he cannot complain of his own election to follow the reasonable tactical advice of his lawyer." (Citations and punctuation omitted.) Todd v. State, 275 Ga.App. 459, 464(4), 620 S.E.2d 666 (2005). Accordingly, his claim on this ground is without merit.
Judgment affirmed.
SMITH, P.J., and MIKELL, J., concur.
NOTES
[1] Hamilton's claim that his counsel was ineffective for failing to object to this portion of the prosecutor's argument is also without merit, as Hamilton cannot establish that this omission prejudiced him. See Jackson v. State, 282 Ga. 494, 497(2), 651 S.E.2d 702 (2007); Anderson v. State, 257 Ga.App. 602, 602-603(2)(a), 571 S.E.2d 815 (2002). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261852/ | 132 Cal.Rptr.2d 819 (2003)
107 Cal.App.4th 1211
Augusta FERRIS et al., Plaintiffs and Appellants,
v.
GATKE CORPORATION, Defendant and Respondent.
No. A093413.
Court of Appeal, First District, Division Four.
March 28, 2003.
Review Denied July 9, 2003.
*821 Alan Richard Brayton, Brayton, Purcell, Curtis & Geagan, Novato, CA, for Plaintiff-Appellant.
Sedgwick, Deter, Moran & Arnold, Frederick, D. Baker, Charles T. Sheldon, Katharine Demgen, Charles P. Murrin; Bennett, Samuelsen, Reynolds & Allard, Richard Reynolds, Frederick W. Gatt and Don Schaefer, for Defendant-Respondent.
Gayle Irene Jenkins for Thelen Reid & Priest LLP, Los Angeles, CA, as Amicus Curiae on behalf of Respondent.
*820 SEPULVEDA, J.
Does Sindell's burden-shifting "market share" theory of tort liability apply in litigation seeking recovery for personal injury and wrongful death from inhalation of asbestos fibers? (Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (Sindell).) As will appear, while the answer to that general proposition has been the subject of uncertainty, we conclude the circumstances presented by this record make it unnecessary for us to resolve the issue vel non. It is sufficient, we decide, that assuming Sindell relief may under some circumstances be available to plaintiffs in asbestos-related tort litigation, the record in this appeal fails to furnish the requisites necessary to establish that species of group tort liability. In light of that conclusion, we hold the superior court did not err here when it barred plaintiffs from pursuing Sindell relief at trial. For not unrelated reasons, we also conclude the trial court was correct when it granted a defense motion for non-suit on plaintiffs' civil conspiracy claims. Given these dispositions, we will affirm the ensuing judgment for defendant from which this appeal is taken.
FACTUAL AND PROCEDURAL BACKGROUND
Asserting he had been employed in naval shipyards and around other sources of asbestos exposure during his working life and regularly had replaced the friction brake shoes on his own and his neighbors' automobiles for close to 40 years, in December 1998, Harley Ferris and his wife Augusta filed suit for damages in tort against numerous manufacturers, suppliers, and distributors of asbestos, including manufacturers of friction brake products containing that mineral. The original complaint sought damages for personal injury and loss of consortium on theories of negligence, strict liability, fraud and deceit, and civil conspiracy. Not long thereafter, Mr. Ferris died from the effects of mesothelioma, an incurable pulmonary cancer associated with and thought to be caused by inhalation of asbestos particles. Joined by the Ferrises' two sons, Augusta pressed on with the lawsuit, amending the complaint to plead an additional cause of action for wrongful death.
*822 The cause was called for trial on August 8, 2000. The defense filed an in limine motion to exclude evidence supporting a market share theory of liability, contending plaintiffs had not and could not establish that friction brake products containing asbestos were fungible, and had not and could not join defendants with a substantial share of the national friction products market. This motion was denied by the trial court without prejudice to its renewal following a hearing under Evidence Code section 402. Following such a hearing on August 22, 2000, defense motions in limine to exclude evidence supporting a theory of market share liability were renewed. At a hearing held on August 31, 2000, the trial court granted those motions. Somewhat later in the trial court proceedings, on September 7, 2000, the court granted Gatke Corporation's motion for nonsuit on plaintiffs' claims in negligence and strict products liability, as well as their civil conspiracy claims, founded on negligence and products liability. After judgment for defendant was entered on November 17, 2000, this timely appeal followed.
ANALYSIS
1. On this record, the trial court did not err in barring plaintiffs from pursuing Sindell relief.
In Sindell, supra, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, the plaintiff sought to impose tort liability on the defendant pharmaceutical manufacturers, alleging that while pregnant, her mother (along with thousands of other pregnant American women between 1941 and 1971) was given a synthetic compound of the female hormone estrogen known as diethylstilbestrol or DES, as a miscarriage preventative. (Id. at p. 593, 163 Cal.Rptr. 132, 607 P.2d 924.) It was later determined that DES could cause cancerous vaginal and cervical growths in women exposed to it before birth by their mothers taking the drug during pregnancy. Judith Sindell eventually developed a bladder malignancy and related medical problems that, she asserted, were caused by her mother's ingestion of DES. Contending DES was produced from a common and mutually agreed upon formula "as a fungible drug interchangeable with other brands of the same product," and that the defendant manufacturers "collaborated in marketing, promoting and testing the drug, relied upon each other's tests, and adhered to an industry-wide safety standard," the plaintiff contended the defendant manufacturers were jointly and severally liable to her "because they acted in concert, on the basis of express and implied agreements, and in reliance upon and ratification and exploitation of each other's testing and marketing methods." (Id. at pp. 594-595, 163 Cal.Rptr. 132, 607 P.2d 924.)
Although it rejected the plaintiffs group liability theories denominated "alternative liability," "concert of action," and "industry-wide" or "enterprise liability" (Sindell, supra, 26 Cal.3d 588 at pp. 598, 603, 163 Cal.Rptr. 132, 607 P.2d 924), Justice Mosk's opinion for the majority crafted a burden-shifting approach requiring the defendant manufacturers to prove they did not produce the DES Ms. Sindell's mother had ingested, or be liable to the plaintiff in proportion to their shares of the DES national market. This novel theory of group liabilitythe so-called market share theory[1]was derived by the *823 Sindell court from another celebrated California Supreme Court decision, Summers v. Tice (1948) 33 Cal.2d 80, 199 P.2d 1 (Summers). (Sindell, supra, 26 Cal.3d at p. 598, 163 Cal.Rptr. 132, 607 P.2d 924.) In Summers, the court had held that a plaintiff, struck in the eye by birdshot when two hunters each negligently fired their shotguns in his direction, could recover damages from either or both. Despite the fact that only one of the defendant hunters could have fired the birdshot that struck the plaintiff, both were negligent wrongdoers and it would be unfair, Justice Carter reasoned for a unanimous court, to deprive the injured plaintiff of a remedy solely because it could not be determined which of the negligent defendants had fired the birdshot that actually struck him. (Summers, supra, 33 Cal.2d 80 at p. 86, 199 P.2d 1.) In these all-but-unique circumstances, the Supreme Court's Summers opinion dispensed with the requirement that a tort plaintiff must establish causation as a necessary condition to a defendant's liability.
Nearly a decade after Sindell, this court decided Mullen, supra, 200 Cal.App.3d 250, 246 Cal.Rptr. 32. There, three homeowners filed a statewide class action suit against numerous manufacturers of asbestos products used in residential housing construction, alleging personal injury and property damage to their homes from both the use of such products and the cost of its removal. Alleging the asbestos products were "`functionally interchangeable'" and that no testing procedures existed "`to identify which defendant made a particular asbestos-containing product,'" the complaint sought to impose liability on defendants under a Sindell market share theory. (Id. at p. 253, 246 Cal.Rptr. 32.) General demurrers without leave to amend were sustained by the trial court; plaintiffs appealed and this court affirmed.
"The briefest consideration," wrote Justice Poché, "demonstrates numerous inherent differences between DES and asbestos." (Mullen, supra, 200 Cal.App.3d 250 at p. 255, 246 Cal.Rptr. 32.) Quoting from a Florida Supreme Court decision, the Mullen court observed that "`DES was produced by hundreds of companies pursuant to one formula. As a result, all DES had identical physical properties and chemical compositions and, consequently, all DES prescribed to pregnant women created the same risk of harm.... [11] Asbestos products, on the other hand, have widely divergent toxicities ... caused by a combination of factors, including: the specific type of asbestos fiber incorporated into the product; the physical properties of the product itself; and the percentage of asbestos used in the product. There are six different asbestos silicates used in industrial applications and each presents a distinct degree of toxicity in accordance with the shape and aerodynamics of the individual fibers. Further, it has been established that the geographical origin of the mineral can affect the substance's harmful effects." (Id. at pp. 255-256, 246 Cal.Rptr. 32, quoting Celotex Corp. v. Copeland (Fla.1985) 471 So.2d 533, 537, 538 italics added by Celotex Corp.)
*824 Unlike Sindell where the Supreme Court "took pains to establish that it was dealing with `fungible goods' ... produced `from an identical formula'" (Mullen, supra, 200 Cal.App.3d at p. 255, 246 Cal. Rptr. 32), our Mullen opinion observed that asbestos "is a generic designation possessing a rainbow-like diversity and a bewildering array of potential uses.... `Because `asbestos is not a "product," but rather a generic name for a family of minerals ... employed in a myriad of uses,'" the court reasoned, "`the unavoidable conclusion is that plaintiffs are attacking an entire industry, not seeking ... damages caused by a single fungible product carr[y]ing with it a singular risk factor.' In light of these circumstances, the prerequisite of fungibility has not been demonstrated. Plaintiffs have therefore failed to state a cause of action for market share liability." (Id. at pp. 256-257, 246 Cal.Rptr. 32.) "We thus align California," the Mullen court concluded, "the progenitor of the market share theory of liability, with the great majority of jurisdictions which have declined to extend it to the field of asbestos-related injuries. [Citations.]" (Id. at p. 257, 246 Cal.Rptr. 32.)
Four years after Mullen was decided, this court decided Wheeler v. Raybestos-Manhattan (1992) 8 Cal.App.4th 1152, 11 Cal.Rptr.2d 109 (Wheeler). There, five plaintiffs who had worked around and been exposed to asbestos dust from automotive friction brake products filed personal injury damages actions against three asbestos manufacturers in San Francisco Superior Court. As with all other asbestos personal injury litigation filed in San Francisco, plaintiffs' consolidated actions were subject to that court's general order 21, providing "the theory of market share liability articulated in Sindell ... is inapplicable to asbestos cases." (Id. at p. 1154, 11 Cal Rptr.2d 109.) After the trial court granted a defense motion for nonsuit, the plaintiffs appealed.
This court reversed and remanded. Noting that we had reached much the same conclusion in Mullen as the superior court had adopted in its general order 21 (Wheeler, supra, 8 Cal.App.4th 1152 at p. 1155,11 Cal.Rptr.2d 109), our opinion went on, however, to hold that plaintiffs nevertheless should be permitted to attempt to establish the theory underlying their claim for Sindell relief. That theory was that friction "brake pads were fungible to the extent that a pad of a given size, regardless of who made it, could be used on a variety of different vehicles .... that the pads manufactured by defendants were all composed solely of chrysotile asbestos fiber ... [and] the brake pads all contained between 40 and 60 percent asbestos by weight." (Id at p. 1156, 11 Cal.Rptr.2d 109.) Because the plaintiffs alleged that a "single type of asbestos fiber, chrysotile, was used in all the pads, and the amount of asbestos by weight in the pads varied within a limited range," the Wheeler opinion reasoned, "they are fungible for the purposes of Sindell by virtue of containing roughly comparable quantities of the single asbestos fiber, chrysotile." (Ibid.) It followed, our opinion concluded, that "the peculiar facts presented by exposure to asbestos fiber from brake pads" made general order 21 "inapplicable to the facts of the claim stated by plaintiffs." Plaintiffs, Wheeler went on to point out, "have not proven the elements of a market share case; we hold only that they should be allowed to attempt it."[2](Id at p. 1158, 11 Cal.Rptr.2d 109.)
*825 It is not difficult to appreciate the intellectual consistency between Mullen (holding that a market share theory of liability does not apply generally to asbestos litigation) and the exception carved out in Wheeler (holding that a Sindell theory of liability in asbestos litigation might be applicable under certain narrowly defined circumstances). The latter is simply a special subclass of asbestos cases held to be properly amenable to Sindell relief because of underlying factual analogies to the DES cases. It is, however, fair to ask how courts are to identify the line separating these two incommensurate paradigms. Some guidance regarding the application of Sindell principles in asbestos-related tort litigation is furnished by the high court's opinion in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 67 Cal. Rptr.2d 16, 941 P.2d 1203 (Rutherford).
At issue before the Rutherford court was the validity of a local rule of the Solano County Superior Court purporting to "shift[ ] the burden of proof to defendants in asbestos cases tried on a products liability theory to prove that their products were not a legal cause of the plaintiffs injuries...." (Rutherford, supra, 16 Cal.4th 953 at p. 957, 67 Cal.Rptr.2d 16, 941 P.2d 1203), that is, a local court rule opposite to San Francisco's general order 21 at issue in Wheeler. (Id. at p. 957, 67 Cal.Rptr.2d 16, 941 P.2d 1203, italics in original.) In assessing the validity of the contested local rule, the California Supreme Court discussed at length the validity of a Summers-derived theory of tort liability and its burden-shifting approach in "asbestos-related latent personal injury actions brought against multiple suppliers of asbestos products." (Id. at p. 971, 67 Cal.Rptr.2d 16, 941 P.2d 1203.) The Rutherford court began its discussion by observing that "[t]he majority of courts have refused to extend the doctrine of alternative liability and its burden-shifting rule to asbestos-related latent personal injury actions brought against multiple suppliers of asbestos products. These cases have found the factors which support application of Summers alternative liability and burden shifting readily distinguishable from the facts typically involved in complex asbestos litigation." (Ibid.)
But the Supreme Court's Rutherford opinion does more than offer a series of observations concerning the judicial reception given Sindell in asbestos personal injury litigation in other American jurisdictions. It goes on to discuss, with evident approval, the reasons that prompted a great majority of reviewing courts across the nation to decline to apply burden-shifting market share principles in the context of asbestos exposure tort litigation. (Rutherford, supra, 16 Cal.4th 953 at pp. 971-975, 67 Cal.Rptr.2d 16, 941 P.2d 1203.) Many of the courts that had rejected Sindell's application to asbestos-related tort claimsfrom the Ohio Supreme Court (Goldman v. Johns-Manville Sales Corp. (1987) 33 Ohio St.3d 40, 514 N.E.2d 691) to the federal district court for the Western District of Pennsylvania (Vigiolto v. Johns-Manville Corp. (W.D.Pa.1986) 643 F.Supp. 1454)did so on the ground that not all potential tortfeasors were joined as defendants (Rutherford supra, 16 Cal.4th at p. 974, 67 Cal.Rptr.2d 16, 941 P.2d *826 1203).[3] The Rutherford court, however, divined a more fundamental reason for rejecting a burden-shifting approach to asbestos personal injury litigation"the limits on the plaintiffs burden of proof on causation...." (Ibid.) This followed, the Rutherford court reasoned, because a plaintiff's burden of proving causation in such circumstances does not include a requirement of establishing "the scientifically unknown details of carcinogenesis, or ... the unknowable path of a given asbestos fiber." (Id. at p. 976, 67 Cal. Rptr.2d 16, 941 P.2d 1203.)[4]
*827 In the briefing before this court, respondent and supporting amicus curiae contend our Wheeler decision is no longer good law, having been disapproved, at least implicitly, by Rutherford's analysis, if not by its precise holding. Given this line of development and the current state of the case law, we consider the question whether this court is now in a position to draw any firm conclusions about Wheeler's ongoing vitality. Only a modest one, we will conclude that the exception approved by this court in Wheeler has no application to the factual record made in this case. We also reach the complementary conclusion that because we are not required to, we do not here decide the contemporary validity of Wheeler in circumstances in which it might properly be applicable. We reach these conclusions for the following reasons.
Significantly for present purposes, the Rutherford opinion observes that "[o]nly in one circumstance have we relieved toxic tort plaintiffs of the burden of showing exposure to the defendant's product: where hundreds of producers had made the same drug from an identical formula, practically precluding patients from identifying the makers of the drugs they took. (Sindell, supra, 26 Cal.3d at pp. 610-613 [163 Cal.Rptr. 132, 607 P.2d 924].)" (Rutherford, supra, 16 Cal.4th at p. 976, 67 Cal.Rptr.2d 16, 941 P.2d 1203, italics added.) We think it is evident that supporting the application of Sindell's group liability principles by this court in Wheeler was the singular fact alleged by the plaintiffs therethe asserted chemical homogeneity of the asbestos fibers composing friction brake products. Writing for this court in Wheeler, Justice Poché expressly said as much: "On the issue of fungibility plaintiffs offered to prove that the brake pads were fungible to the extent that a pad of a given size, regardless of who made it, could be used on a variety of different vehicles. Furthermore, they note that the pads manufactured by defendants were all composed solely of chrysotile asbestos fiber. Finally, the brake pads all contained between 40 and 60 percent asbestos by weight." (Wheeler, supra, 8 Cal.App.4th 1152 at p. 1156, 11 Cal.Rptr.2d 109.)
Given this asserted compositional uniformity, the Wheeler plaintiffs' additional allegation that at the time of their exposure to friction asbestos dust "these worn brake pads could no longer be identified by brand"[5](Wheeler, supra, 8 Cal.App.4th 1152 at p. 1155, 11 Cal.Rptr.2d 109), was sufficient to bring the case within the liability principles approved by our Supreme Court in Sindell as the functional equivalent to the situation confronting the DES plaintiff. As the court explained, "[a] single type of asbestos fiber, chrysotile, was used in all the pads, and the amount of asbestos by weight in the pads varied within a limited range. While brake pads are not absolutely interchangeable each for one another and hence are not fungible from the standpoint of an auto mechanic, they are fungible for the purposes of Sindell by virtue of containing roughly comparable quantities of the single asbestos fiber, chrysotile." (Id. at p. 1156, 11 Cal.Rptr.2d 109.)
Here, the pleadings indicate Mr. Ferris was exposed not only to asbestos dust from friction brake products while working on his and his neighbors' automobiles over the years, but also while working in West Coast naval shipyards in the six years spanning 1939 to 1945, and possibly while employed at San Quentin State Prison from 1960 to 1970, and as a furniture upholsterer from 1950 to 1960. The plaintiffs in Wheeler occupied a comparable situation, *828 having been exposed to asbestos particles from both friction products and other, nonfriction sources. (Wheeler, supra, 8 Cal.App.4th at p. 1155, 11 Cal. Rptr.2d 109.) The Wheeler plaintiffs, however, limited their request for Sindell relief to those manufacturers of friction brake products, eschewing that remedy with respect to the defendant nonfriction manufacturers. (Ibid.)
At oral argument of this cause, plaintiffs' counsel contended a like limitation on his clients' Sindell claim was sought in the trial court and that, while Judge Tomar Mason had never passed specifically on the applicability of the Wheeler "fungibility" exception to Mullen, the defense in limine motion was argued by both sides on the assumption"as if'plaintiffs' Sindell claim satisfied the "fungibilty" prong.[6] While we are unable to confirm that supposition from the record before us, as we explain, we think the point is academic in view of other flaws in plaintiffs' proof on the Sindell issue. Chief among these was the acknowledgement by plaintiffs' expert witness, Dr. Ben-Zion, that he was unable to compute Gatke's share of the national friction products market during the relevant time period.
Both at oral argument and in briefing, plaintiffs' counsel referred to the requirement of proof of an individual manufacturer's national market share as the "phantom fifth prong" for Sindell relief, suggesting such proof is not, as a matter of law, a requisite for establishing market share liability. We disagree. Indeed, it is plain both from Justice Mosk's opinion for the majority in Sindell and from the logic of the theory underlying market share tort liability itself that such proof is an essential predicate to relief. This is so because the very uniqueness of the remedy crafted by the court in Sindella modification of the alternative liability theory adopted by the court in Summerswas justified by the Supreme Court as mitigating what otherwise would be a manifest injustice.
"If plaintiff joins ... the manufacturers of a substantial share of [the offending product], the injustice of shifting the burden of proof to defendants to demonstrate that they could not have made the substance which injured plaintiff is significantly diminished.... [¶] The presence in the action of a substantial share of the appropriate market also provides a ready means to apportion damages among the defendants. Each defendant mil be held liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused plaintiffs injuries .... [¶] Under this approach, each manufacturer's liability would approximate its responsibility for the injuries caused by its own products. Some minor discrepancy in the correlation between market share and liability is inevitable; therefore, a defendant may be held liable for a somewhat different percentage of the damage than its share of the appropriate market would justify.... But just as a jury cannot be expected to determine the precise relationship between fault and liability in applying the doctrine of comparative fault [citation] or partial indemnity [citation] the difficulty of apportioning damages among the defendant producers in exact relation to their market share does not seriously militate against the rule we adopt." (Sindell, supra, 26 Cal.3d at pp. 612-613, 163 Cal.Rptr. 132, 607 P.2d 924, italics added.)
In addition to this reasoning, the chief law review article on which the Sindell *829 court relied in explicating the market share theory (see Sindell, supra, 26 Cal.3d at pp. 597, 611, 163 Cal.Rptr. 132, 607 P.2d 924) also ties proportional tort liability to proof of an individual defendant's share of the market: Speaking of the DES cases, the comment in the Fordham Law Review reasoned that "Although joint liability may seem inequitable under these circumstances [i.e., mass tort cases presenting numerous defendants] it need not be. Since there is not an equal possibility of causation for each defendant, and the possibility of causation can best be estimated by market share, damages should be apportioned according to market share." (Comment, DES and a Proposed Theory of Enterprise Liability (1978) 46 Fordham L.Rev. 963, 994, italics added.)
Coupled to that circumstance is the fact that Mr. Ferris was able to identify two of the manufacturers to whose friction asbestos brake products he was exposed and conceded he had no evidence substantiating exposure to any asbestos products manufactured by defendant Gatke. In answers to interrogatories propounded by defendant Gatke, plaintiffs stated that during the course of doing brake repair work on his and his neighbors' automobiles "[d]ecedent recalled RAYBESTOS and BENDIX brakes." It is, of course, precisely the inability of the plaintiffs in both Summers and Sindell to identify the causal source of their injuries that was said by our Supreme Court to justify reversing the usual burden of proving causation, allocating to the defendant tortfeasors the burden of negating their role in causing the plaintiffs injury.
The final consideration that weighs on us is one of legal policy. From Sindell onward courts confronting this unique group liability issue have underlined repeatedly the extraordinary departure from conventional tort law doctrine, with its Aristotelian conception of causation, such notions represent. The Lineaweaver court's opinion gives voice to one source of these concerns when it observes that "it is the wrongdoer who caused the harm that should bear the cost, and it serves no justice to fashion rules which allow responsible parties to escape liability while demanding others ... compensate a loss they did not create." (Lineaweaver, supra, 31 Cal.App.4th at p. 1418, 37 Cal. Rptr.2d 902.) We think a principle cognate to that recognition is that courts should employ such group liability concepts with great caution and only after being satisfied that the circumstances invoked in support of their application are truly compelling. Those criteria, we conclude, are not and cannot be met by plaintiffs in this case.
2. It was not error to grant defense motions for nonsuit on plaintiffs' civil conspiracy claims.
As noted at the outset (ante, at p. 821), the trial court also granted defendant Gatke's motion for nonsuit on plaintiffs' claims for negligence and products liability, as well as their civil conspiracy claims based in negligence and products liability. It did so on the express ground plaintiffs had failed to establish a legal duty running from Gatke to Harley Ferris, there being "no offer that there's evidence that the decedent actually used the Gatke products." Plaintiffs attack that determination here as reversible error.
Deposition testimony by both of Mr. Ferris's sons, Jack and Gary, as well as Augusta's deposition testimony, established that none could recall him using friction brake products manufactured by Gatke. And in answers to interrogatories propounded by the defense, plaintiffs were unable to offer any testimony descriptive of the kinds of brake shoes Harley Ferris *830 actually used in working on his family's and neighbors' automobiles that might have tied Gatke's products to Ferris.
Despite the absence of evidence supporting a reasonable inference that Mr. Ferris was exposed to defendant's friction brake products, plaintiffs contend the trial court erred reversibly in rejecting their civil conspiracy-based causes of action for negligence, strict liability, fraud, and intentional concealment. In oral argument before the trial court on September 1, 2000, plaintiffs' counsel summarized the evidence they intended to rely on in support of their civil conspiracy claims. Gatke, he contended, was a friction brake pioneer "in the '30s, '40s and '50s," and "in the 1930s, they helped sponsor a specific study with other companies of the hazards of asbestos generally. They contributed, along with Raybestos Manhatt[a]n and Johns-Manville and others" to scientific experiments with animals, exposing them to asbestos and studying the effects at the Saranac Laboratory, a private research facility near Saranac Lake, New York. "And in addition ...," counsel continued, "they formed a group called the Asbestos Textile Institute or the ATI...." Among other things, plaintiffs argued, ATI controlled the publication rights to the research results of the Saranac Laboratory investigation "so that it [i.e., the Saranac research results] could be sanitized. In fact, it was sanitized" by removing all references to a link between asbestos exposure and cancer. "Our evidence" counsel told the trial court, "will prove that Gatke in concert with Raybestos Manhatt[a]n, Bendix and other members [of the Institute] committed the tort of negligence [in] manufacturing and sale of products that failed to perform as ... an ordinary consumer would expect...." These were examples, according to counsel's argument, "of tortious misconduct that Gatke will be shown to have done pursuant to the common design and in concert with others like Raybestos Manhatt[a]n and Johns-Manville."
As indicated, the trial court granted defendant's motion for nonsuit on plaintiffs' civil conspiracy claims. For reasons explored in greater detail in our opinion in a companion appealChavers v. Gatke Corp. (2003) 107 Cal.App.4th 606, 611-512, 132 Cal.Rptr.2d 198also filed March 28, 2003, we hold the trial court's nonsuit ruling is supported by an unwavering line of California Supreme Court precedent. Beginning with Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 108 Cal. Rptr. 480, 510 P.2d 1032, reaffirmed in Doctors' Co. v. Superior Court (1989) 49 Cal.3d 39, 260 Cal.Rptr. 183, 775 P.2d 508, and culminating (for now) in Applied Equipment Corp. v. Litton Saudi Arabia, Ltd. (1994) 7 Cal.4th 503, 28 Cal.Rptr.2d 475, 869 P.2d 454, the California high court has held repeatedly that, as a matter of law, a civil conspiracy to commit tortious acts can be formed only by parties already under a legal duty to the plaintiff, the breach of which will support an action in tort against the members of the conspiracy individually. Put another way, where a plaintiff asserts the existence of a civil conspiracy among the defendants to commit tortious acts, the source of any substantive liability arises out of an independent duty running to the plaintiff and its breach; tort liability cannot arise vicariously out of participation in the conspiracy itself. (Chavers v. Gatke Corp., supra, 107 Cal.App.4th at p. 614, 132 Cal.Rptr.2d 198.) (See fn.7.) In light of these controlling principles, the trial court did not err in granting the motion for nonsuit.[7]
*831 I, CONCLUSION
The judgment of the superior court is affirmed.
We concur: KAY, P.J., and RIVERA, J.
NOTES
[1] As others have noted, "`[describing the theory of market share liability is much easier than defining it: [If] "Under this doctrine, the traditional prerequisite of identifying the manufacturer of the injury-causing product is eliminated when the product is a generic item produced by several manufacturers. In such cases, plaintiffs need only allege inability to identify the actual manufacturer and join as defendants those manufacturers that compose a `substantial share' of the market.... Th[e] theory shifts the burden of proof to each manufacturer to prove its innocence ... [¶] If ... plaintiff successfully establishes liability, damages are simply apportioned among defendants on the basis of each defendant's share of the product market.... A defendant can avoid liability only by proving that it did not produce the specific product that harmed the plaintiff."'" (Mullen v. Armstrong World Industries, Inc. (1988) 200 Cal.App.3d 250, 255, fn. 6, 246 Cal.Rptr. 32, quoting Hannon v. Waterman S.S. Corp. (E.D.La.1983) 567 F.Supp. 90, 91, fn. 1.)
[2] In Richie v. Bridgestone,'Firestone, Inc. (1994) 22 Cal.App.4th 335, 27 Cal.Rptr.2d 418, a panel of this Division gave Wheeler full retroactive effect, over a dissent by Presiding Justice Anderson, who attacked Wheeler itself as wrongly decided: "Between 1988 and 1992 nothing changed. Asbestos was still as generic as before, general order 21 was concededly as `sound' as when adopted, and no new appellate decision or commentary had appeared. Indeed, Wheeler is devoid of both (1) citation to any authority in support of its holding and (2) any good reason for rejecting Mullen as controlling." (Richie v. Bridgestone/Firestone, Inc., supra, 22 Cal.App.4th 335 at p. 343, 27 Cal.Rptr.2d 418.)
[3] The high court's Rutherford opinion relies on a phalanx of judicial decisions from across the nation, overwhelmingly declining to apply a Summers/Sindell-based burden-shifting instruction to asbestos-related personal injury tort litigation. (Rutherford, supra, at pp. 971-973, 67 Cal.Rptr.2d 16, 941 P.2d 1203; see, e.g., Black v. Abex Corp. (N.D.1999) 603 N.W.2d 182, 185; White v. Celotex Corp. (9th Cir.1990) 907 F.2d 104, 106; Robertson v. Allied Signal, Inc. (3d Cir.1990) 914 F.2d 360, 380; Leng v. Celotex Corp. (Ill.1990) 196 Ill. App.3d 647, 143 Ill.Dec. 533, 554 N.E.2d 468, 470-471; Gaulding v. Celotex Corp. (Tex. 1989) 772 S.W.2d 66, 70-71; Sholtis v. American Cyanamid Co. (App.Div.1989) 238 N.J.Super. 8, 568 A.2d 1196, 1203-1205; Case v. Fibreboard Corp. (Okla.1987) 743 P.2d 1062, 1064; In re Asbestos Litigation (Del.Super.Ct. 1986) 509 A.2d 1116, 1118; Blackston v. Shook & Fletcher Insulation Co. (11th Cir.1985) 764 F.2d 1480, 1483; Celotex Corp. v. Copeland, supra, 471 So.2d 533, at pp. 537-539; In re Related Asbestos Cases (N.D.Cal.1982) 543 F.Supp. 1152; cf. In the Matter of New York State Silicone Breast Implant Litigation (1995) 166 Misc.2d 85, 631 N.Y.S.2d 491; see also Prosser & Keeton on Torts (5th ed.1984) § 103, at p. 714; but cf. Menne v. Celotex Corp. (10th Cir.1988) 861 F.2d 1453, 1467.)
[4] Two First District decisions, one filed before Rutherford and the other after, reach conclusions consistent with Rutherford. In Lineaweaver v. Plant Insulation Co. (1995) 31 Cal. App.4th 1409, 37 Cal.Rptr.2d 902 (Lineaweaver), a. decision predating Rutherford, Division One of this court had before it a negligence case brought by three plaintiffs. In a bifurcated trial against a lone defendantPlant Insulation Companythe jury returned liability and damages verdicts for plaintiffs. The trial court granted nonsuit on the ground plaintiffs had failed to establish exposure to defendant's product, and appeals were taken. (Id. at p. 1413, 37 Cal.Rptr.2d 902.) The Lineaweaver court affirmed, rejecting a Sindell/Summers-derived theory of group liability in the asbestos context. "Asbestos products have widely divergent toxicities," the court wrote. "Unlike the negligent hunters of Summers, all asbestos suppliers did not fire the same shot. Yet, under a burden-shifting rule, all suppliers would be treated as if they subjected plaintiff to a hazard identical to that posed by other asbestos products." (Id. at p. 1418, 37 Cal.Rptr.2d 902.) And in a recent, post-Rutherford decision by a panel of this DivisionMcGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 120 Cal.Rptr.2d 23 (McGonnell)we succinctly acknowledged the changes wrought by Rutherford. At issue in McGonnell was the soundness of the trial court's order granting the defense summary judgment on the ground plaintiffs had failed to prove exposure to defendant's products. (Id. at p. 1102, 120 Cal.Rptr.2d 23.) Affirming, we said this: "A threshold issue in asbestos litigation is exposure to the defendant's product. The plaintiff bears the burden of proof on this issue. (Rutherford, supra, 16 Cal.4th 953 at pp. 975-976 [67 Cal.Rptr.2d 16, 941 P.2d 1203]; Lineaweaver v. Plant Insulation Co., supra, 31 Cal.App.4th 1409, 1415-1416 [37 Cal.Rptr.2d 902].) If there has been no exposure, there is no causation." (Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 655, 33 Cal. Rptr.2d 702). Plaintiffs may prove causation in an asbestos case by demonstrating that the plaintiff's ... exposure to the defendant's asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff ... inhaled or ingested, and hence to the risk of developing asbestos-related cancer. (Rutherford, supra, at pp. 976-977, 67 Cal.Rptr.2d 16, 941 P.2d 1203.)" (McGonnell, supra, 98 Cal.App.4th 1098 at p. 1103, 120 Cal.Rptr.2d 23.) In neither of these cases, nor in Rutherford, however, did we or the Supreme Court deal with asbestos exposure in the friction products context or discuss the Wheeler exception.
[5] This circumstance was the result, we gather, of the disappearance of the manufacturers' branding as the friction brake linings were worn away through use.
[6] Indeed, defense counsel appears to have agreed the trial court reached its ruling on the assumption the Wheeler criteria for Sindell reliefincluding fungibilitywere satisfied.
[7] Plaintiffs also contend the trial court erred by granting a defense motion for nonsuit without first affording their counsel an opportunity to make an opening statement. It is true the nonsuit statuteCode of Civil Procedure section 581ccontemplates a ruling on a motion for nonsuit "[o]nly after, and not before, the plaintiff has completed his ... opening statement." (Code Civ. Proc, § 581c, subd. (a).) Here, however, if the trial court erred, it did so only at the invitation of plaintiffs' counsel. In preliminary proceedings on August 31, 2000, the trial judge and plaintiffs' and defendant's counsel discussed in open court the procedure to be followed in disposing of a defense in limine motion to exclude evidence supporting Sindell relief at the upcoming jury trial. As the discussion turned to the issue of the alleged conspiracy between defendant Gatke and other asbestos manufacturers, defense counsel suggested "the proper procedure is that [plaintiffs] make their offer of proof and that they stipulate that the nonsuit motion is made on that offer of proof." "All right," Judge Mason replied. "Then I believe all of those issues will be taken up properly tomorrow at 9:30. Is that agreeable?" While defense counsel indicated agreement with that statement, there was no response from plaintiffs' attorneys. On the following day, proceedings resumed. Although defendant contends counsel stipulated to this variant on the procedure prescribed by Code of Civil Procedure section 581c, subdivision (a), plaintiffs deny they stipulated. The record bears them out; there is no indication in the transcript that plaintiffs' counsel ever agreed expressly to substitute an offer of proof for the opening statement. Rather, plaintiffs' counsel was silent until after the trial court, evidently proceeding on the assumption the parties had stipulated, had ruled by granting the motion for nonsuit. Or, as Judge Mason stated to plaintiffs' counsel in response to his procedural objection to her ruling, "You put me in a difficult position stating this particular objection now, since: Had this objection been stated before the court's ruling at the last hearing, I might have been able to accommodate your apparent request to have the ruling reserved until after opening statements.... And I assume that actually counsel preferred to know the Court's rulings so that no further time would be invested in the case if the Court found the Plaintiffs' offers insufficient." Assuming it was error to rule on the motion for nonsuit following an offer of proof rather than an opening statement, it was error invited by counsel's silent failure to timely bring any objection to the trial judge's attention before she had ruled. (Cf. Weber, Lipshie & Co. v. Christian (1997) 52 Cal.App.4th 645, 658, 60 Cal.Rptr.2d 677 [plaintiff estopped to urge error in choice of law on appeal where it consciously pursued contrary course in trial court]; see also Giest v. Sequoia Ventures, Inc. (2000) 83 Cal.App.4th 300, 302-303, 99 Cal. Rptr.2d 476 [use of stipulated offer of proof in lieu of opening statement]; 9 Witkin, California Procedure, Appeal, §§ 383-385, pp. 434-436.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261695/ | 110 Cal.Rptr.2d 918 (2001)
91 Cal.App.4th 942
Dixie Jane FRAIZER, Plaintiff and Appellant,
v.
Hymavathi VELKURA et al., Defendants and Respondents.
No. B142396.
Court of Appeal, Second District, Division Seven.
August 22, 2001.
*919 Belgum & Associates, Stephen L. Belgum, Glendale, and Edwin B. Warren, Rolling Hills, for Plaintiff and Appellant.
Carroll, Kelly, Trotter, Franzen & McKenna, John C. Kelly, Long Beach, and Joseph J. Looney, for Defendant and Respondent Hymavathi Velkura.
LILLIE, P.J.
Dixie Jane Fraizer (Fraizer) appeals from judgment entered following order granting summary judgment in favor of defendant Hymavathi Velkura, M.D. (Velkura). She contends the trial court erroneously granted summary judgment in that she had standing to assert the claim for the wrongful death of her granddaughter.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Julia Marie Fraizer-Calderon (Fraizer Calderon) was born on June 7, 1994, with a serious congenital neurological disorder, hydranencephaly, and congenital blindness due to bilateral optic nerve hypoplasia. She was freed for adoption by the Los Angeles Superior Court on January 21, 1997, as a result of the permanent termination of parental rights. Fraizer was the grandmother and guardian of the minor child, and was just weeks away from the finalization of adoption proceedings through the Los Angeles County Department of Children and Family Services (the Department) when Fraizer Calderon died on January 13, 1998.
On January 12, 1999, Fraizer filed in superior court a complaint for damages against Velkura for the wrongful death of Fraizer-Calderon, medical negligence and fraud.[1] Velkura filed a motion for summary judgment asserting, inter alia, that Fraizer had no standing as a plaintiff in this action. Said motion was granted.
DISCUSSION
"Summary judgment is appropriate if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. [Citation.] [¶] `"A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established [or that there is a complete defense to that cause of action]. . . . Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. . . . In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court. . . . We must determine whether the facts as shown by the parties give rise to a triable issue of material fact. . . . In making this determination, *920 the moving party's affidavits are strictly construed while those of the opposing party are liberally construed." . . . We accept as undisputed facts only those portions of the moving party's evidence that are not contradicted by the opposing party's evidence . . . . In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true.' [Citation.]" (Cheyanna M. v. A.C. Nielsen Co. (1998) 66 Cal.App.4th 855, 860-861, 78 Cal.Rptr.2d 335.)
Appellant argues that she has standing to pursue the instant action against Velkura since she was the grandmother of Fraizer-Calderon and just weeks away from adopting her when she died.
"Since an action for wrongful death in California is governed solely by statute, the right to bring one is limited only to those persons described by the Legislature. . . . [Citations.] Absent a constitutional basis for departure from legislative intent, the courts of this State are bound by the statute's provisions. [Citation.] The category of persons eligible to bring wrongful death actions is strictly construed. [Citation.]" (Marks v. Lyerla (1991) 1 Cal.App.4th 556, 559-560, 2 Cal. Rptr.2d 63.) "The decision of the Legislature as to how far it will extend the right to maintain a wrongful death action is conclusive regardless of the unusual allegations. [Citations.] [¶] . . . The purpose behind the wrongful death statute is to provide compensation for the loss of companionship and other losses resulting from decedent's death. [Citation.]" (Marks v. Lyerla, supra, 1 Cal.App.4th at p. 561, 2 Cal.Rptr.2d 63.)
Code of Civil Procedure section 377.60 provides in relevant part, "A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: [¶] (a) The decedent's surviving spouse, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse, who would be entitled to the property of the decedent by intestate succession."
Probate Code section 6402 governs intestate succession and provides: "Except as provided in [Probate Code section] 6402.5, the part of the intestate estate not passing to the surviving spouse under [Probate Code section] 6401, or the entire intestate estate if there is no surviving spouse, passes as follows: [¶] (a) To the issue of the decedent . . . . [¶] (b) If there is no surviving issue, to the decedent's parent or parents equally. [¶] (c) If there is no surviving issue or parent, to the issue of the parents or either of them . . . . [¶] (d) If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents . . . to the grandparent or grandparents equally. . . ."
Respondent asserts and appellant agrees that the decedent's birth parents' parental rights were terminated at a hearing pursuant to Welfare & Institutions Code section 366.26 and decedent was freed for adoption. Respondent also argues, without authority, that as a result of the termination of parental rights, Fraizer's relationship of a grandmother was also terminated. We disagree.
The order terminating the parent and child relationship divested the parent and child of all legal rights and powers with respect to each other but made no mention of grandparents. On its face, the termination order had no effect on the legal rights with respect to the child and her grandmother. (See Matter of Baby Girl D.S. (D.C.1991) 600 A.2d 71, 84.)
In her motion for summary judgment and supporting authority, respondent *921 claimed the case of Lewis v. Regional Center of the East Bay (1985) 174 Cal.App.3d 350, 220 Cal.Rptr. 89 was directly on point, but we disagree. In Lewis the grandparents of a minor decedent attempted to bring a wrongful death action because they had been declared the legal guardians of their deceased grandchild. The court concluded the grandparent had no standing to bring the action because the child's natural parents and a half-brother were alive even though the child's parents and half-brother had signed disclaimers waiving any interest in the minor's estate. The court determined that a disclaimer of interest did not also carry a waiver of all other indices of heirship. (Id. at p. 354, 220 Cal.Rptr. 89.)
In the present case, the parents were parents no longer. As a result of the order terminating parental rights, the court permanently terminated all parental rights and obligations of parents to child, and all rights and obligations of the child to the parents. "The proceedings to declare a child free from parental control . . . contemplate . . . the severance of the relationship between the child and its parent or parents." (In re Zimmerman (1962) 206 Cal.App.2d 835, 843, 24 Cal.Rptr. 329.)
In her brief on appeal, respondent takes an opposite tack and argues that since termination of parental rights caused Fraizer Calderon to be "a legal orphan" until adoption, it operated as "a universal termination of all legal bonds between the child and the birth family," including the child and the grandparents. Respondent's reliance on In re Devin M. (1997) 58 Cal. App.4th 1538, 1541, 68 Cal.Rptr.2d 666, In re Nachelle S. (1996) 41 Cal.App.4th 1557, 49 Cal.Rptr.2d 200, In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1806-1808, 54 Cal.Rptr.2d 560, and In re Gary P. (1995) 40 Cal.App.4th 875, 46 Cal.Rptr.2d 929, to support this argument is misplaced. Those cases do not stand for the proposition that "freeing a minor for adoption severs all legal relationships between the minor and her birth family, including the minor's grandparents," but rather hold that an appellant cannot urge errors which affect only another party who does not appeal. That is, a mother whose parental rights have been terminated or will be terminated does not have standing to raise the issue of the minor's visitation with siblings or grandparents because the parent was not aggrieved.
In conclusion, we find that the order of the court terminating parental rights had no effect on the relationship of Fraizer Calderon and her grandmother Fraizer and the court erred in granting the motion for summary judgment.
DISPOSITION
The judgment is reversed. Appellant is entitled to costs on appeal.
JOHNSON, J., and WOODS, J., concur.
NOTES
[1] It was alleged that Fraizer-Calderon died from symptoms originating as a cold, fever and ear infection. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261704/ | 428 A.2d 1108 (1981)
Richard B. HAMILTON
v.
DEPARTMENT OF EMPLOYMENT SECURITY.
No. 182-80.
Supreme Court of Vermont.
February 4, 1981.
Susan M. Sussman and Gretchen Bailey, Vermont Legal Aid, Inc., Burlington, for plaintiff.
M. Jerome Diamond, Atty. Gen., and Bennett Evans Greene, Asst. Atty. Gen. Montpelier, for defendant.
Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.
HILL, Justice.
The employer, the State of Vermont, appeals a decision of the Employment Security Board granting unemployment benefits to claimant Hamilton after concluding that he was discharged and not for misconduct connected with his work. See 21 V.S.A. § 1344. We reverse.
Claimant was unemployed and in reduction in force status (RIF) before being hired by the Vermont Department of Labor and Industry as manager of the apprenticeship and training program. As a former state employee, employment rights under the Vermont State Employees contract gave him the option, which he accepted, of taking the job on a probationary basis. During the course of the probationary period the commissioner and the claimant had several discussions concerning the claimant's job performance. The commissioner became increasingly dissatisfied with the claimant's performance and in late August or early September 1979 told claimant that he had "grave reservations" about the claimant's ability to do the job. On October 5, 1979, he expressed his concern in a letter to the claimant in which he recited examples of poor performance, advised the claimant that his progress would be carefully assessed during the next two or three weeks, and warned that failure to show marked improvement could result in dismissal.
On October 21, or 22, the claimant and commissioner met and mutually concluded that it would be best for all parties if the claimant's employment ended. The commissioner had previously inquired of the Department of Personnel whether he had sufficient grounds to discharge the claimant and was told he did not.
On October 23, the claimant submitted a written resignation to the commissioner, in which he confirmed that he was quitting by mutual agreement and that, due to their divergent views of apprenticeship, he felt unable to fill the position.
The Board concluded that:
*1109 Although there is no express evidence in the record indicating that the commissioner advised the claimant that he would be discharged if he did not resign during their conversation on October 21 or 22, 1979, it is clear that the commissioner both wanted and encouraged the claimant to terminate his employment. Under these circumstances, the claimant's leaving of this employment cannot be considered to have been voluntarily undertaken on his part, but rather must be viewed as having been effectively coerced by his employer. Under these circumstances, we conclude that the claimant was discharged by his employer.
The sole issue raised by the employer is whether the claimant was discharged or whether he voluntarily quit without good cause attributable to the employer so as to be ineligible for unemployment compensation benefits under 21 V.S.A. § 1344(a)(2)(A). There is no claim that the claimant was discharged for misconduct connected with his work.
The employer argues that the Board's conclusion that the claimant was coerced into terminating his employment is not supported by the evidence. We agree.
Although this Court will not disturb the findings of the Employment Security Board "unless, considered as a whole, there is no evidence to support the decision," Kasnowski v. Department of Employment Security, 137 Vt. 380, 381, 406 A.2d 388, 389 (1979), we are mindful that the conclusions of the Board must be supported by the findings of fact.
Viewing the facts found by the Board in the light most favorable to the prevailing party, see Kasnowski, supra, we find support for the Board's conclusion that there is "no express evidence in the record indicating that the commissioner advised the claimant that he would be discharged if he did not resign." Agreeing with this, we must determine whether any facts found by the Board support the additional conclusion that the claimant was coerced into resigning. The only finding which the Board referred to in arriving at this conclusion was the fact the commissioner both wanted and encouraged the claimant to terminate his employment. This is not enough to justify a conclusion of coercion.
The claimant points to evidence that appellant was dissatisfied with his work. There is no dispute as to that fact. He further points to the contents of a letter to him in which the employer's problems with the claimant's job performance were detailed. The claimant interprets this letter as showing appellant's intention to discharge him. This is not a fair interpretation of that letter. The specific language is as follows: "I will feel compelled to take those steps which I consider appropriate, up to and including dismissal from State service." The Board itself found that claimant was warned that "failure to show marked improvement could result in dismissal." A quit for something that is only a future possibility does not justify the award of benefits. Kasnowski, supra, 137 Vt. at 382, 406 A.2d at 390. We have previously held that an employer allowing an employee the alternatives of "shaping up or shipping out" does not provide support for concluding that a resignation is coerced. Lane v. Department of Employment Security, 134 Vt. 9, 11, 347 A.2d 454, 456 (1975).
The fact that the claimant might have been discharged eventually could well have been a factor in his resignation. An examination of the record discloses, however, that there was another factor in his decision to resign. There is uncontradicted testimony that the day before the claimant tendered his written resignation, the employer and he visited and mutually agreed that the claimant would terminate his employment. Evidence also shows that after consultation with the Personnel Department and further conversation, the claimant opted for that type of termination because he could retain his status under the contract provisions of RIF only if he resigned. It was his choice, then, to resign and retain an opportunity to obtain later employment with the State of Vermont. Under these circumstances, we cannot say that the claimant was coerced. If anything the resignation was contrived to favor the employee.
*1110 We conclude that the claimant voluntarily quit without good cause attributable to his employer. The disqualification set out in 21 V.S.A. § 1344(a)(2)(A) should have been imposed.
The order of the Employment Security Board is reversed and the cause remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261773/ | 861 F.Supp. 1366 (1994)
TCA BUILDING COMPANY
v.
NORTHWESTERN RESOURCES CO., et al.
Civ. A. No. G-93-265.
United States District Court, S.D. Texas, Galveston Division.
September 1, 1994.
*1367 *1368 *1369 *1370 John V. Singleton, Jr., G. Allen Price, Houston, TX, for TCA Bldg. Co.
David J. Beck, Ronald D. Secrest, Beck, Redden & Secrest, Houston, TX, Don Henry Magee, McGinnis, Lochridge & Kilgore, Austin, TX, for Northwestern Resources Co.
Robert K. Wise, David Preston Poole, Worsham, Forsythe, Sampels & Wooldridge, Dallas, TX, for Texas Utilities Elec. Co.
Lee L. Kaplan, Baker & Botts, Houston, TX, for Utility Fuels Inc. and Houston Lighting & Power Co.
*1371 ORDER ON MOTION FOR SUMMARY JUDGMENT
KENT, District Judge.
Plaintiff TCA Building Company ("TCA") brings this action against Defendants Northwestern Resources Company ("Northwestern"), Texas Utilities Electric Company ("TUE"), and Houston Lighting & Power Company ("HL & P"),[1] alleging that the Defendants conspired to keep it from mining lignite from its property, in violation of the Sherman Act, 15 U.S.C. §§ 1 & 2. This property, consisting of two contiguous tracts of land, is located within the area covered by the Jewett Mine, a near-surface lignite stripmining operation run by Northwestern in Freestone and Leon Counties, Texas. Before the Court is the Defendant's consolidated motion for summary judgment or dismissal. For the reasons stated below, the motion is GRANTED IN PART and DENIED IN PART.
Background
The Jewett Mine
In 1972, the tracts now owned by TCA were purchased by W. Laird Lahrmann and his father, W. Lee Lahrmann, from the Texas Veteran's Land Board ("VLB"), under contracts for deed. These tracts, constituting approximately 107 acres, hold an estimated 2.8 million tons of recoverable lignite. The elder Lahrmann assigned the tracts to his son in 1976. In 1978, the son leased his mineral interests in the tracts to Defendant TUE, for a ten-year primary term.[2] Since the VLB still held an interest in the property, at that time this was the longest primary term permitted by statute. Simultaneously, however, W. Laird also executed documents purporting to grant TUE the option to lease the tracts for an additional 35 years. W. Laird died shortly thereafter, and his interest in the tracts passed back to his father.
In 1982, W. Lee Lahrmann and others sued TUE in the District Court of Freestone County, claiming that the 35-year options were void under the Texas statutes pertaining to mineral leases of VLB land. The state court dismissed the lawsuit in 1985 for want of prosecution.
Meanwhile, HL & P and Northwestern had also been acquiring lignite leases in this area.[3] In 1979, HL & P and Northwestern entered a "Lignite Supply Agreement." This agreement established a lignite "Reserve Area" covering a large contiguous area in Limestone, Leon, and Freestone Counties, including the Lahrmann tracts. Under the agreement, HL & P sub-leased all of its lignite properties within the Reserve Area to Northwestern, agreed to build a lignite-burning generating plant in Limestone County, and agreed to purchase all of this plant's fuel requirements from Northwestern. In return, Northwestern agreed to attempt to acquire enough further reserves in the Reserve Area to supply the plant's expected 240,000,000 ton lignite requirements over its 30-year lifespan; to dedicate all of this reserve to HL & P; and to mine and deliver the lignite to the plant. Additionally, through this and subsequent agreements, HL & P agreed to purchase all of the permanent facilities necessary to mine the reserves, then lease this equipment to Northwestern for a nominal fee. This operation would become known as the Jewett Mine.
In 1986, TUE sold Northwestern a block of leases in the Reserve Area covering approximately 1300 acres, including the leases and options covering the Lahrmann tracts, in exchange for an overriding royalty. Concerned about the possible invalidity of the options on Lahrmann's land, Northwestern sent one of its landmen, Don McLaughlin, to obtain a ratification of these options. By this time, Lahrmann owned the property in fee simple, and it was no longer under VLB *1372 restrictions. Lahrmann executed the ratifications in 1987.
Don McLaughlin left Northwestern in April, 1991, knowing that Northwestern planned to prepare Lahrmann's land for mining that year. In September 1991, Lahrmann sold his tracts, plus all claims and causes of action related to them, to Plaintiff TCA Building Company. TCA is owned by a trust created by Don McLaughlin's brother, Houston attorney Michael McLaughlin.
The Litigation
Two months after purchasing the tracts, TCA sued Northwestern in the District Court of Freestone County for a declaration that the leases were void,[4] later adding TUE and HL & P as defendants. TCA claimed that the initial options were void under VLB regulations, and that the subsequent ratifications were void because they were procured through fraud. Northwestern maintained that its leases were valid, and continued preparing the TCA tracts for mining by stripping off the overburden and dewatering the subsurface. In November 1992, TCA informed Northwestern that it would seek more than $50 million in damages if Northwestern mined the tracts under the disputed leases.
Northwestern responded in February 1993 that it would simply bypass the TCA tracts, and not mine the land at all, if TCA did not recognize its right to do so without reservation. Northwestern also informed TCA that:
In the progression of lignite production, once the production has passed the Lahrmann tract, it will not be economically feasible to move back and produce lignite from the Lahrmann tract. It is estimated that by May 1, 1993, the mining and reclamation operations will have bypassed the Lahrmann tract to the point that it is not economically feasible to produce lignite from the Lahrmann tract.
TCA balked, and Northwestern did, in fact, mine around the TCA tracts.
Despite its extant demand in the state court suit that Northwestern vacate its land, TCA then amended its petition to include the bypass decision as part of its allegation of fraud. TCA also filed this action, alleging that the actions of the Defendants violated federal antitrust laws.
In December 1993, Northwestern unilaterally released its interest in these tracts to TCA.
Trial on the state court action commenced on January 31, 1994. At trial, TCA complained that the release was inadequate; Northwestern then filed a supplemental release to meet these complaints. After three weeks of evidence, the jury returned a verdict against TCA. Although the court had previously ruled that the initial 35-year options had been void when executed, the jury found that Northwestern had not obtained the ratifications by fraud. The jury also found that TCA was estopped to assert its claims, and that Northwestern's decision to mine around the TCA Tracts did not diminish the value of the lignite on TCA's land. Accordingly, the state court entered a take-nothing judgment against TCA on March 11, 1994.
TCA's Antitrust Claims
In its recently amended Complaint, TCA asserts that the Defendants have violated §§ 1 and 2 of the Sherman Act by a variety of means. First, TCA claims that the agreement of TUE to assign its lignite rights to Northwestern, and the supply agreements between Northwestern and HL & P, constituted a conspiracy to acquire monopoly power over the production and sale of lignite coal from the Jewett Mine. TCA also alleges that these agreements comprised an effort to fix the price of lignite in "the Jewett Mine market," and to monopolize the market for lignite to supply HL & P's Limestone County generating plant.
Next, TCA continues to assert that Northwestern fraudulently obtained the ratifications of the options on the TCA Tracts, "in furtherance of the conspiracy." TCA then vaguely asserts that the Defendants have "refus[ed] to deal" with the Plaintiff in the *1373 sale of its lignite interest, and have "set out on a course of conduct that has and will hinder Plaintiff's ability to efficiently exploit its lignite interest." Plaintiff supports the refusal to deal claim with evidence that HL & P has refused to purchase TCA's lignite on reasonable terms, and that Northwestern has refused to allow TCA access to the "essential" equipment which it leases from HL & P. TCA also alleges that the Defendants have filed false statements with the Texas Railroad Commission in order to renew their license to mine the Jewett Mine, have slandered Plaintiff's title, and have engaged in "sham litigation" against the Plaintiff. TCA supports this latter allegation by pointing to the counterclaims and third-party claims filed against it and the McLaughlins in the prior state court action.
Standard of Review
General
Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A genuine issue of material fact exists if there is a genuine issue for trial that must be decided by the trier of fact. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In other words, summary judgment should not be granted if the evidence indicates that a reasonable factfinder could find in favor of the nonmoving party. Id. See also Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
In ruling on a Motion for Summary Judgment, the Court must accept the evidence of the nonmoving party and draw all justifiable inferences in his favor. Credibility determinations, the weighing of the evidence, and the drawing of reasonable inferences are left to the trier of fact. Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513-14.
Under Fed.R.Civ.P. 56(c), the moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once this burden is met, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita, supra, 475 U.S. at 585-87, 106 S.Ct. at 1355-56; Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987).
Where the moving party has met its Rule 56(c) burden, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.' Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita, supra, 475 U.S. at 586-87, 106 S.Ct. at 1355-56 (quoting Fed.R.Civ.P. 56(e)).
Dismissal
Rule 12 of the Federal Rules of Civil Procedure provides for the dismissal of claims upon which relief cannot be granted. Under the notice pleading requirements of the Federal Rules, however, a complaint need only set forth "a short and plain statement of the claim." Fed.R.Civ.P. 8(a); see also Fed.R.Civ.P. 8(e)(1) ("Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required."), & 8(f) ("All pleadings shall be so construed as to do substantial justice."). Accordingly, motions to dismiss for failure to state a claim are disfavored in this circuit, and such a motion may not be granted unless "it appears to a certainty that the plaintiff would not be entitled to recover under any state of facts which could be proved in support of his claim." Cook & Nichol, Inc. v. Plimsoll Club, 451 F.2d 505, 506 (5th Cir.1971); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); see McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232, 246, 100 S.Ct. 502, 511, 62 L.Ed.2d 441 (1980) ("This rule applies with no less force to a Sherman Act claim....").
*1374 The Defendants' Motion
At several points in their brief, the Defendants raise issues in such broad terms that they cannot be reasonably read to meet their initial summary judgment burden of "informing the district court of the basis for [their] motion, and identifying those portions of [the record] which [they] believe[] demonstrate the absence of a genuine issue." For example, the brief introduces its section on the monopoly allegations by stating the elements of the claim and baldly asserting, without further support, that "TCA cannot establish either element." A general denial, however, does not pass to Plaintiff the burden of proving its entire case on summary judgment, especially when, as here, the parties have not completed discovery.[5] Accordingly, any arguments for summary judgment which the Defendants may have believed they raised and which are not addressed herein are summarily denied for lack of specificity.
Similarly, the Defendants' attack on TCA's complaint itself ignores the basic concept of the liberal notice pleading requirements in federal court, asking instead for a heightened pleading standard akin to that in civil rights cases. Moreover, the basis of the Defendants' criticism requires an assumption of illiteracy. For example, the Defendants deny that the complaint identifies the relevant product, geographic market, and parties, although these items are easily discerned from even a cursory review of the pleadings: the product is lignite, the geographic market is the Jewett Mine area, and the conspiring parties are the Defendants. Finally, the Court can only imagine that these alleged faults in the pleading form the basis of the Defendants' "motion to dismiss," presumably under Rule 12(b)(6), because their brief never actually specifies the relief requested from these phantom defects. Accordingly, except for the limited dismissal granted below, the Defendants' motion to dismiss is denied.
Analysis
State Law Claims
TCA's Amended Complaint makes vague references to causes of action arising under state law, such as a suit to quiet title, a request for an injunction against "sham litigation" in state court, and a request for judgment for "common law torts." In response to the Defendants' motion, Plaintiff conceded that the quiet title action is moot in light of Northwestern's release of all claims. As to any other claims TCA attempts to assert under state law relating to its dispute with the Defendants over its lignite rights, through due diligence TCA should have litigated these in the prior state court action. Accordingly, they are barred by res judicata. See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992).
TCA also claims that the Defendants' alleged "sham litigation" was an act in furtherance of their alleged conspiracy to monopolize. In this context, the sham litigation claim will be discussed infra.
Collateral Estoppel
The doctrine of collateral estoppel precludes the relitigation of any ultimate issue of fact which was actually litigated and essential to the judgment in a prior suit, as long as the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior suit. Tarter v. Metropolitan Sav. & Loan Ass'n, 744 S.W.2d 926, 927 (Tex.1988). In both Texas and federal courts, the doctrine applies even if the prior judgment is under appeal, except in those circumstances (not relevant here) where appeal consists of a trial de novo. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex.1986); Prager v. El Paso Nat'l Bank, 417 F.2d 1111, 1112 (5th Cir.1969).
In TCA's prior state court action against these Defendants, the primary issue *1375 was whether the Defendants had obtained the 1987 Lahrmann ratifications of the options on the TCA tracts through fraud. The jury found that they had not, and the court entered a judgment on those findings declaring the leases to be valid and enforceable. Hence, whether or not the options were initially valid,[6] the state court judgment establishes that TCA's predecessor-in-interest had granted Northwestern a valid right to mine the tracts long before TCA purchased them. Accordingly, TCA is collaterally estopped from denying in this forum that Northwestern's leases on the TCA Tracts were valid and enforceable after the 1987 ratifications, and any antitrust claims based on the Defendants' conduct in obtaining those ratifications are dismissed.
Likewise, TCA may not base any claim in this Court on a theory that actions of the Defendants which were permitted by these valid and enforceable leases were, in fact, pursuant to invalid leases. For example, the leases permitted Northwestern to dispossess TCA and Lahrmann of the surface estate, and to prepare the land for mining. These acts were not illegal, and cannot themselves form the basis of an antitrust claim. Moreover, TCA may not assert any "refusal to deal" claim arising from conduct occurring before December, 1993, because before that date TCA had no interest in lignite with which it could have dealt.
For a similar reason, Northwestern's decision to "mine around" the TCA Tracts cannot form the basis of any liability in this Court. Although far from clear, TCA's theory appears to be that this action furthered the conspiracy to monopolize the Jewett Mine and fix prices therein because "Northwestern, acting for all the monopolists, will either lease reserves at the price it sets, or will mine around lignite owners." As a general proposition, this statement is a truism: if a lignite owner refuses to lease to Northwestern at the price Northwestern is willing to pay, Northwestern will obviously have to mine around that deposit. With respect to TCA, however, the proposition is entirely irrelevant. As established in the state court action, when Northwestern mined around the TCA Tracts in 1993 it already owned the right to mine those tracts, and TCA owned no right to the lignite therein. The Court does suspect that under state law Northwestern actually owed TCA, as a royalty-owner, the common-law duty to mine those tracts when it mined the surrounding properties. TCA, however, denied Northwestern's right to do this, and threatened to claim as damages any profits which Northwestern might make on mining the tracts. Under these circumstances, no reasonable fact-finder could conclude that Northwestern should have mined the property anyway. Therefore, TCA cannot claim that Northwestern's decision to mine around its property was improper.
On the other hand, the Defendants incorrectly argue that collateral estoppel precludes entirely the issue of damages. In one of many blatant misrepresentations to the Court, the Defendants baldly claim that the state court findings "established that there was no diminution in value of TCA's surface and lignite estate." In fact, the jury only found that Northwestern's decision to mine around the TCA Tracts did not diminish the value of the lignite therein. Moreover, even this finding does not enjoy the benefits of collateral estoppel, as the Defendants have not suggested and the Court has not culled from the record before it any reason that this finding was essential to the judgment entered by the state court. See Tarter, 744 S.W.2d at 927 (collateral estoppel applies only to finding essential to judgment in prior suit).
Also, contrary to the implications of the Defendants' motion, collateral estoppel does not govern every liability issue raised by TCA's Amended Complaint. It is, of course, possible to violate the antitrust laws through activities which, in the absence of anti-competitive intent, are entirely valid and legal. See, e.g., Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985) (holding that circumstances justified finding that defendant's *1376 refusal to continue joint ticket arrangement with smaller competitor violates Sherman Act). The question here, then, is whether TCA can show that the ostensibly valid actions of the Defendants had the effect or purpose of unlawfully suppressing competition.
Sham Litigation
TCA claims, among other things, that the Defendants interfered with its efforts to compete by pursuing "sham litigation" against it and the McLaughlins through their counter and third-party claims in the state court suit. In that action, Defendant Northwestern claimed that TCA and the McLaughlins conspired to violate Don McLaughlin's alleged duty not to reveal Northwestern's concerns about the validity of the initial coal options on the TCA tracts. The Defendants move for summary judgment on this allegation, which the Court grants.
First, TCA's global claim of sham litigation is clearly meritless as to HL & P and TUE because these Defendants never joined the allegedly sham claims of Northwestern in the state court action. TCA's refusal to acknowledge this could only be for the purpose of harassment, in violation of its duty to this Court.
Second, a party is generally immune from antitrust liability based on its having petitioned a court for redress. California Motor Trans. Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). To pierce this immunity, TCA must first show that, as a matter of law, Northwestern's claims were "objectively baseless, in the sense that no reasonable litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome." Professional Real Estate Inv. v. Columbia Pictures Indus., ___ U.S. ___, ___, 113 S.Ct. 1920, 1922, 123 L.Ed.2d 611, 624 (1993). Even if the claims were objectively baseless, however, TCA must further show that Northwestern subjectively intended the prosecution of the claims to interfere directly with the business relationships of a competitor, through the use of the governmental process as opposed to the outcome of that process. Id.
TCA offers neither argument nor evidence supporting either prong of this test. Furthermore, on an independent analysis, the Court finds that Northwestern's claims were not objectively baseless. It is well established in Texas that at least some employees owe their employers a duty not to disclose certain secrets. See, e.g., Hunter v. Shell Oil Co., 198 F.2d 485, 487 (5th Cir.1952) (geologist owes fiduciary duty to oil company employer with regard to company's confidential information about oil deposits). Northwestern's theory that this obligation included a duty by Don McLaughlin to not disclose the legal vulnerability of certain of his employer's contracts was, objectively, at least a good faith argument for the extension of existing law.[7]Cf. id. ___ U.S. at ___, 113 S.Ct. at 1931, 123 L.Ed.2d at 627 (incorporating standard of Fed.R.Civ.P. 11). Even if not, however, TCA has failed to show even the possibility of subjective anticompetitive intent. Northwestern's "sham litigation" was a counterclaim to a suit brought by TCA. The jury, in turn, found TCA's suit to be lacking in proof. TCA has not shown how the efficient prosecution of Northwestern's "baseless" claims at the same time as TCA's pursuit of its "baseless" primary action could remotely interfere with any of its "business relationships." Nor has TCA even identified any business relationships which existed at the time of filing and with which the litigation could have interfered. In fact, TCA has not even offered a description of Northwestern's actions from which this Court could determine that the process of defending against these claims burdened TCA at all. Accordingly, the claim must fail.
*1377 Limitations
Section 4B of the Clayton Act bars any private cause of action for treble damages under the antitrust laws which is not commenced within four years after the cause of action accrued. 15 U.S.C. § 15b. TUE argues that, since it has not done anything in relation to the Jewett Mine or to any interest therein owned by TCA since 1986, and this action was not filed until 1993, any antitrust cause of action by TCA against TUE is clearly time-barred. HL & P and Northwestern also claim the benefit of the limitations statute, on the theory that they completed the alleged conspiracy and monopoly when they obtained the ratifications of the Lahrmann options in 1987.
In response, TCA simply makes the conclusory statement that it has pled "continuing antitrust violations," for which the limitations period is continuously renewed, citing Hanover Shoe v. United Shoe Mach. Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 2236 n. 15, 20 L.Ed.2d 1231 (1968). Even assuming the truth of this conclusion, however, Defendant TUE's involvement with this "continuing violation" cannot be discerned.
The "continuing violation" or "continuing conspiracy" exception to the four-year antitrust statute of limitations "permits a cause of action to accrue whenever the defendant commits an overt act in furtherance of an antitrust conspiracy or, in the absence of an antitrust conspiracy, commits an act that by its very nature is a continuing antitrust violation." Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1051 (5th Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983).[8] The only act which the Plaintiff accuses TUE of which could be classified "by its very nature" as a "continuing antitrust violation" is TUE's alleged participation in a monopoly. However, TCA neither alleges nor presents evidence of anything TUE has done in relationship to the Jewett Mine since assigning its lignite leases to Northwestern in 1986, other than receive royalties from those leases. The undisputed evidence on file establishes that TUE retained no ownership interests in the Jewett Mine, the Limestone County generating plant, or the TCA Tracts, after 1986. Furthermore, TUE played no role in any decisions concerning the mining of the Jewett Mine or the operations of the generating plant.
This Court holds as a matter of law that a party does not continually violate the antitrust laws simply by virtue of its mere passive receipt of royalties from a monopoly which purchased its previously competing interests. Cf. Greene County Mem. Park v. Behm Funeral Homes, 797 F.Supp. 1276, 1292 (W.D.Pa.1992) (mere existence of partnership or shareholder interest in a conspiring firm does not give rise to personal liability under the Sherman Act), aff'd 993 F.2d 876 (3rd Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 187, 126 L.Ed.2d 146 (1993). Otherwise, the passive participant would be perpetually liable for the existence of a violation which it is powerless to end. Therefore, since there is no suggestion in the record that TUE has retained the ability to alter any unlawful monopoly in Jewett Mine area lignite since 1986, the existence of any such monopoly is not a "continuing violation" on the part of TUE.
The Plaintiff's remaining allegations against TUE that TUE conspired with the other Defendants to monopolize the Jewett Mine and fix the price of the lignite therein fail for the lack of any overt act in furtherance of the conspiracy since 1986. As the Fifth Circuit has explained, in the context of conspiracy claims:
[C]ontinuing antitrust conduct resulting in a continued invasion of a plaintiff's rights may give rise to continually accruing rights of action. It remains clear nonetheless that a newly accruing claim for damages must be based on some injurious act actually occurring during the limitations period, not merely the abatable but unabated inertial consequences of some pre-limitations action. *1378 Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 117, 128 (5th Cir. 1975) (footnote omitted), cert. denied, 423 U.S. 1054, 96 S.Ct. 784, 46 L.Ed.2d 643 (1976). TCA points to no "injurious act" done by TUE, or any active participation by TUE in any alleged conspiracy, within four years of this suit. Since any damages which TUE may have caused TCA have occurred solely because of the inertial consequences of TUE's pre-limitations actions, TCA's claims against TUE are barred. Compare Al George, Inc. v. Envirotech Corp., 939 F.2d 1271, 1275 (5th Cir.1991) (antitrust action based on sham litigation accrues when prior lawsuit was filed, and continued prosecution of that action within the limitations period does not create a new action), and Kaiser Aluminum, 677 F.2d at 1052-55 (conspiring defendants' continuing receipt of benefits from illegal contract does not create new causes of action), with Poster Exchange, 517 F.2d at 129 (cause of action for refusal to deal is renewed with every specific act or word of refusal).
HL & P and Northwestern also assert the benefit of the limitations statute, on the theory that they had completed their exclusive dealing arrangement and monopoly of the Jewett Mine well before 1989. They are correct, of course, only to the extent that TCA claims damages specifically arising from pre-1989 events. Otherwise, the maintenance of monopolies and agreements in restraint of trade are the classic examples of "continuing violations" of the antitrust laws. See Hanover Shoe v. United Shoe Mach. Corp., 377 F.2d 776, 794-95 (3d Cir.1967) (cause of action renewed each time defendant enforced and renewed monopoly-creating leases), aff'd in relevant part, 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968); Poster Exchange, supra. Therefore, if these Defendants' more recent refusals to deal with TCA were in furtherance of an unlawful agreement or monopoly, TCA's damages flowing therefrom are clearly not barred by limitations.
Price-Fixing: Failure of Claim and Lack of Standing
TCA claims that the lignite supply agreements between Northwestern and HL & P constitute a price-fixing conspiracy. Furthermore, TCA describes the conspiracy as horizontal as well as vertical; that is, TCA claims that the agreement is not simply an agreement between HL & P and Northwestern as buyer and seller, but is also an agreement between sellers of Jewett Mine lignite because HL & P owns Jewett Mine lignite leases which it has subleased to Northwestern.
Of course, as between an individual buyer and an individual seller a vertical "price-fixing agreement" is not only lawful, but expected. If buyer and seller could not fix a price, nothing would ever get sold. This explains TCA's creative attempt to classify both Defendants as sellers, since horizontal price-fixing agreements are per se illegal under § 1 of the Sherman Act. United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (1927).
In this posture, however, the claim must be dismissed for failure to make sense. Price-fixing agreements are illegal because they restrain competition based on consumers' preferences, such as the price, service, or quality associated with a given product. Albrecht v. The Herald Co., 390 U.S. 145, 152-54, 88 S.Ct. 869, 872-74, 19 L.Ed.2d 998 (1968). The party most directly harmed by such agreements is the consumer of the subject product. Cf. ARCO v. USA Petroleum, 495 U.S. 328, 336, 110 S.Ct. 1884, 1890, 109 L.Ed.2d 333 (1990). Yet TCA asserts that HL & P, as one of two dominant owners of Jewett Mine lignite, conspired with the other owner to fix the price of said lignite, even though the party most obviously injured by such a conspiracy would be the sole consumer of this ore: HL & P. Given the lack of reason to this theory, the Court holds as a matter of law that masochism on the part of a vertically-integrated consumer is not, by itself, a violation of the Sherman Act.[9]
*1379 Put simply, TCA's complaint describes only a situation in which one coal-owning party HL & P agreed to purchase a package of mining services and additional coal from another Northwestern. Northwestern and HL & P could not have been competing for the sale of HL & P's coal to HL & P, because HL & P already owned it. Likewise, Northwestern did not compete with HL & P for the provision of mining services, because HL & P has no such operations. Therefore, the complaint describes no agreement between competitors and hence no horizontal price fixing agreement.
Moreover, even if Northwestern and the "coal-owning" branch of HL & P could be said to have fixed lignite prices in violation of § 1, TCA would not have standing to complain. As a potential seller of lignite, TCA is a competitor of these alleged conspirators. To maintain an action for damages arising from violations of the Sherman Act, a plaintiff must show that he suffered an "antitrust injury"; that is, an injury which is "of the type that the antitrust laws were intended to prevent, and that flows from that which makes defendants' acts unlawful." Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). In the context of a price-fixing conspiracy among sellers in a given market, this means that competitors "may not complain of conspiracies that ... set maximum prices above market levels, or that set minimum prices at any level" because, absent predatory pricing, such conspiracies "would either leave [the competitor] in the same position as would market forces or would actually benefit respondents by raising market prices." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 584 n. 8, 106 S.Ct. 1348, 1355 n. 8, 89 L.Ed.2d 538 (1986). As a potential competitor of the Defendants in the market for Jewett Mine lignite, therefore, TCA has no cause of action based on the Defendants' alleged conspiracy to fix the price of that commodity.
TCA's inability to allege such an antitrust injury is further established by the TCA's claimed damages. TCA does not allege that the supposedly "fixed" price has harmed it; in fact, it claims a willingness to sell its coal at a substantially lower price than that paid to Northwestern.[10] Instead, TCA simply claims that the harm it has suffered is an inability to sell its lignite at all. While that may be the result of antitrust violations, it has nothing to do with "price-fixing." Accordingly, any claims for "price-fixing" are dismissed.
Therefore, at this point the only remaining viable claims of TCA are:
1) That Northwestern and HL & P have, through otherwise legitimate means, unlawfully monopolized or attempted to monopolize the market for lignite in the Jewett Mine area, in violation of § 2 of the Sherman Act; and
2) That the requirements/exclusive dealing contract between Northwestern and HL & P constitutes an unlawful agreement in restraint of trade, in violation of § 1 of the Sherman Act.
The only cognizable antitrust injury TCA alleges is that, in furtherance of these two *1380 violations, HL & P has effectively refused to purchase TCA's coal, and Northwestern has refused to provide TCA access to its "essential facilities" for marketing that coal to HL & P.[11]
Other Standing Issues
The Defendants also claim that TCA lacks antitrust standing for these remaining claims. The argument is largely a collection of indecipherable, jumbling, and unconnected pieces of antitrust headnotes, with no description of their relevance to the case at hand or their discernible relationship to the question of standing. The Defendants do cite the seminal case on the issue, Associated Gen. Contractors v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). They do so in an utterly conclusory manner, however, with no mention whatsoever of the detailed list of factors the Supreme Court offered therein for the proper analysis of the issue. The thrust of the Defendant's argument, to the extent one can be discovered, appears to be encapsulated in the heading of that section: TCA lacks standing because it is "neither a damaged consumer nor a competitor" of the Defendants. Without more, however, this major premise is derived from an overly broad and simplistic reading of controlling antitrust jurisprudence. See, e.g., Blue Shield v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982) (patient of psychologist has standing to complain of conspiracy by insurance companies and psychiatrists against psychologists).
Furthermore, Northwestern's premise that TCA is not its competitor is unsupported factually. Since December 1993, when the Defendants unilaterally released their rights to mine the TCA tracts, TCA has been an owner of lignite in the Jewett Mine market. TCA has entered negotiations with companies interested in mining these tracts for TCA, and has attempted to negotiate a the sale of its lignite to HL & P. Nonetheless, the Defendants argue that TCA is not a viable competitor in this market because it has no mining permit, mining equipment, or experienced mining personnel. Reason, however, does not support the notion that a seller of minerals does not "compete" in the market for those minerals simply because it intends to contract the operation of its mine to others.
As a competitor for sales of lignite in a market which the Defendants have allegedly monopolized, which has allegedly lost sales due to the Defendants' allegedly unlawful agreement to exclude competitors, no party is in a better position to vindicate the purposes of the antitrust laws than TCA. Cf. R.C. Dick Geothermal Corp. v. Thermogenics, Inc., 890 F.2d 139, 158 (9th Cir.1989) (Norris, J., dissenting) (noting that a utility, as a regulated monopoly which can pass most of its costs on to consumers, has little motivation to sue its fuel suppliers for antitrust violations).[12] Accordingly, based on the extant pleadings and evidence in the record, and the lack of reasoned argument to the contrary, the Court finds that TCA is the proper party to bring this suit.
Market Allegations
The Defendants assert that TCA's complaint should be dismissed for failure to *1381 allege a "legally relevant market," claiming that "[t]o the extent that TCA is claiming that the Jewett Mine area is a legally relevant market, it is wrong as a matter of law." In support of this proposition, they cite a case in which a plaintiff defined the relevant market as the market for disseminating one particular trademarked health education program called "Growing Healthy." Re-Alco Indus., Inc. v. National Center for Health Educ., Inc., 812 F.Supp. 387 (S.D.N.Y.1993). There, the court properly held that a single copyrighted or trademarked brand of a seller cannot comprise its own "market" for the purposes of antitrust law. Id. at 391. This conclusion should be obvious; the trademark laws grant the seller of a trademarked brand a monopoly in that brand of a product, and the relevant market for antitrust purposes consists of that brand's reasonable substitutes. Id.
Amazingly, however, the Defendants then simply state: "So it is here." To support this conclusion, they first add "or product" in their version of the Re-Alco holding, without mentioning the qualifying language "copyrighted or trademarked." Defendant's brief at ¶ 28. Then they argue that the coal mined by Northwestern is Northwestern's own "product," in which it has a natural monopoly. The Court can assure the Defendants, however, that no other erstwhile rational being would dare to credit this assertion with any appellation more generous than ludicrous, or downright silly. The plaintiff has not complained of a monopoly in "Northwestern lignite;" it complained of the Defendants' monopoly in lignite from the Jewett Mine area. This lignite is "naturally" capable of being produced by any party who purchases the right to do so from the various landowners in that area. Northwestern did not create this product, and in fact the rights to the product used to be leased by at least three separate and distinct entities. The prevention of monopolies and restraints on trade in such a "product" with cross-elasticity of demand between various potential sources is, of course, the very essence of the Sherman Act. If the Defendants consolidated significant market power over this product through anticompetitive means, clearly they have created an unlawful monopoly, and their argument to the contrary is disingenuity approaching the obscene.
As if to underscore the frivolity of this argument and the inability to follow the conclusion with any reason, the Defendants again in this section digress to utterly irrelevant statements made, apparently, for the sole purpose of filling paper. After stating that as a matter of law the Jewett Mine market is a natural monopoly, they (in the same paragraph) segue into the statement that their monopoly is not illegal because it was gained by conduct that was honestly industrial. While this may certainly be true, and might vindicate the Defendants if proven, it has nothing whatsoever to do with the question of whether the allegation of a monopoly in Jewett Mine area lignite gained through un industrial and anticompetitive conduct states a claim for which relief may be granted. Since the answer to that question is clearly that it does, the Defendants' motion to dismiss on this basis defies sense.
State Action Doctrine
The Defendants' journey through Wonderland continues with a claim that the "state action doctrine" precludes TCA's complaint. Under this doctrine, restraints on trade are immune from antitrust liability if they have been clearly articulated and affirmatively expressed as state policy, and if this policy is actively supervised by the state itself. FTC v. Ticor Title Ins. Co., ___ U.S. ___, ___, 112 S.Ct. 2169, 2176, 119 L.Ed.2d 410, 422 (1992). The Defendants' sole argument based on this doctrine is that, since the State of Texas regulates strip mining from cradle to grave and has licensed only Northwestern to mine the Jewett Mine, the Ticor Title test is satisfied.
Again, the Defendants provide absolutely no support for this conclusion. They point to no policy wherein the State of Texas even suggests a preference for having only one company mine a given area of lignite deposits, much less clearly articulates such. They do not argue that TCA or its contractors could not obtain a permit to mine in the Jewett Mine area. They enlighten the Court of no state policy favoring exclusive dealing arrangements between mining companies *1382 and utilities. In short, they present no state policy which necessarily conflicts with federal requirements that they compete for mineral reserves in the Jewett Mine area in accordance with the Sherman Act.
Instead, the Defendants offer only this statutory language:
The State of Texas wishes to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations within the State.... It is therefore declared to be the purpose of this Act: to prevent the adverse effects to society and the environment resulting from unregulated surface coal mining operations as defined by this Act. Tex.Rev.Civ.Stat.Ann. art. 5920-11, § 2, ¶ 5(a) (Vernon's Supp. 1994).
This statement is, of course, utterly devoid of probative value under the Ticor test. Compare Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976) (state approval of illegal tying arrangement by public utility does not give rise to immunity, because approval does not express adoption or supervision of policy). Like a mine with its reserves depleted and its framework removed, the Defendants' argument once more is wholly without value or support.
Interstate Commerce
Finally, in an argument not given serious consideration since the Lochner era,[13] the Defendants propose that this Court lacks jurisdiction over TCA's claims because their activities do not affect interstate commerce, pointing to the Sherman Act's proscription only of those monopolies in, and those restraints of, trade or commerce "among the several states." 15 U.S.C. §§ 1 & 2. In the absence of any basic education on the issue, the argument might be persuasive: the Jewett Mine is located entirely within Texas, the entire output of the mine feeds a Texas generating plant, and the entire electrical output of that plant is sold within Texas. Consideration of the facts of this case in light of the broad and well-established judicial interpretations of the Act's interstate commerce requirement, however, cannot lead to the Defendants' conclusion without a wholesale misrepresentation or concealment of that jurisprudence. As before, unfortunately, deception is the Defendants' battle cry. For example, they cite a 1980 Tenth Circuit opinion Crane v. Intermountain Health Care, Inc., 637 F.2d 715 (10th Cir.1980) for the propositions that "for jurisdictional purposes, plaintiff must point to relevant channels of interstate commerce logically affected by defendants' allegedly unlawful conduct," and that "[i]t is insufficient that defendants' overall business may impact interstate commerce if the challenged activity is ... unrelated to interstate commerce." Both suggestions, however, have since been plainly rejected by the Supreme Court. Rather, in Sherman Act cases "[plaintiff] need not allege, or prove, an actual effect on interstate commerce to support federal jurisdiction." Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 331, 111 S.Ct. 1842, 1848, 114 L.Ed.2d 366, 376 (1991). "A conspiracy ... would be covered by the Sherman Act, even though any actual impact on interstate commerce would be indirect or fortuitous." Id. at 329, 111 S.Ct. at 1847, 114 L.Ed.2d at 375.
Indeed, Crane is cited by the dissent in Summit Health as being contrary to the holding of the Court. Id. at 334-38, 111 S.Ct. at 1850-51, 114 L.Ed.2d at 379 (Scalia, J., dissenting). The majority opinion observed that it is "well established" that the Sherman Act reaches all activities which Congress has the constitutional power to regulate under the Commerce Clause. Id. at 327-31 n. 10, 111 S.Ct. at 1846-47 n. 10, 114 L.Ed.2d at 374 n. 10; Chatham Condominium Ass'n v. Century Village, Inc., 597 F.2d 1002, 1006 (5th Cir.1979). Congress, in turn, enjoys the constitutional power under the Commerce Clause to regulate any activity which may be rationally found to affect interstate commerce. Heart of Atlanta Motel, *1383 Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 358, 13 L.Ed.2d 258 (1964). The question, then, is clearly not whether Jewett Mine lignite or HL & P electricity is in interstate commerce, but simply whether it would be rational to conclude that restraints on trade in lignite from the Jewett Mine area could affect interstate commerce. The only serious answer to this inquiry is "yes."
Defendant Northwestern is a Montana corporation; HL & P, a Texas company. The engineers and managers employed at the Jewett Mine undoubtedly hail from across the country. The mine necessarily requires the use of numerous pieces of heavy equipment, many of which are manufactured in other states. Electricity is generated at the Limestone County plant by generators built out-of-state, and it is used in the furtherance of interstate commerce passing through highways, airports, and shipping ports. HL & P expects Northwestern to supply its Limestone County generating plant with 240,000,000 tons of lignite over the plant's 30-year lifespan, displacing HL & P's reliance on other fuel supplies which might be purchased in interstate commerce. Clearly, therefore, the conclusion that the Defendants' operation of the Jewett Mine affects interstate commerce is not only rationally permitted, but rationally commanded. Compare Hodel v. Virginia Surface Mining & Reclam. Ass'n, 452 U.S. 264, 281-83, 101 S.Ct. 2352, 2362-64, 69 L.Ed.2d 1 (1981) (the commerce clause permits Congress to regulate wholly local surface mining operations done by wholly local companies, where Congress rationally found that these operations generally could affect the environment in other states).
Moreover, even under the Defendants' test requiring a logical connection between the effects of the challenged activity and interstate commerce, the Sherman Act plainly reaches the allegations of TCA's complaint and the evidence in support thereof. TCA's complaint alleges that two parties from different states have unlawfully monopolized the production of lignite in the Jewett Mine area, and have unlawfully agreed to restrain trade in that lignite. The evidence supports a finding that, in the absence of such restraints, mining companies located in other states would attempt to compete for the right to produce lignite from that area. These companies might obtain financing from interstate loans or shareholders. Therefore, if the violations alleged are true, the Defendants' conduct has clearly poses a threat to interstate commerce. "If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze." United States v. Women's Sportswear Ass'n, 336 U.S. 460, 464, 69 S.Ct. 714, 716, 93 L.Ed. 805 (1949). The Defendants' argument to the contrary is, once more, wholly without foundation in law or fact. Compare Summit Health, supra (local doctor's allegations of conspiracy by local peer review committee at local hospital satisfies Sherman Act jurisdictional requirements, where hospital's overall activities affect interstate commerce); Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976) (local hospital may bring Sherman Act suit against another local hospital and its local officials for conspiracy to restrain plaintiff hospital's expansion, where failure to expand would restrict interstate medicine sales and financing); Goldfarb v. Virginia State Bar, 421 U.S. 773, 783-85, 95 S.Ct. 2004, 2011-12, 44 L.Ed.2d 572 (1975) (local conspiracy to set fees of local attorneys performing local residential title services is within purview of Sherman Act, where many home purchases are financed with interstate and federal loans); Park v. El Paso Bd. of Realtors, 764 F.2d 1053, 1063 (5th Cir.1985) (El Paso real estate broker's complaint of boycott by other El Paso brokers implicated Sherman Act, where actions of brokers generally affect demand for interstate financing, title insurance, and advertising), cert. denied, 474 U.S. 1102, 106 S.Ct. 884, 88 L.Ed.2d 919 (1986).
Conclusion
From the 40 pages of dross argued by the Defendants, the Court has found very few jewels, and most of these are only semiprecious. Based on these, it is ORDERED that (1) all state law claims are DISMISSED as barred by res judicata; (2) under the doctrine of collateral estoppel, the 1987 ratifications of the options on the Lahrmann *1384 tracts are DEEMED VALID AND ENFORCEABLE; (3) all sham litigation claims are DISMISSED; (4) all claims against Defendant TUE are DISMISSED as time-barred; and (5) all price-fixing claims are DISMISSED for failure to state a claim upon which relief can be granted.
Otherwise, all other requests for relief claimed by the Defendants are DENIED. The rest of the Defendants' motion is characterized by misrepresentation of both law and fact, and argument too illogical and disingenuous to even warrant the distinction of chicanery.[14] The Court is both alarmed and disturbed to note that the motion was presented over the names of some of the most distinguished attorneys in the state. Clearly, the ethical level of advocacy presented therein is far below the standards normally associated with either those individuals or their respective law firms. The Court assumes that this aberration arose simply from a temporary inability to dedicate appropriate resources to this case at the time they were needed. The Court knows, however, that through this motion the Defendants have stolen countless hours of the Court's time, and hence deprived countless other litigants of a more timely resolution of their needs.
This will not happen again in this case. Further pleadings of this character will not be considered by the Court prior to trial. Moreover, the parties will be given only one more opportunity to file dispositive motions. To this end, the pretrial Order of March 2, 1994, is AMENDED to allow the filing of one dispositive motion by each party on or before October 28, 1994. The responses to these motions, if any, will be due November 18, 1994, and no such motions will be considered before that date. Replies to responses will be neither required nor permitted.
Given the February trial setting of this case, the docket of this Court, and the holidays intervening between these deadlines and trial, the Court strongly suggests that the issues raised by any such motions be limited in number and based on clearly established grounds. To this end, the parties are advised that, if the Court is unable to carefully consider the motions before trial, it will simply require their re-briefing afterwards in the form of post-trial motions.
Although the Court is loathe to research the law for its litigants, it is also loathe to grant trials on meritless cases. Therefore, the Court suggests that the parties direct at least part of their further attention to Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961). If the original agreement by Northwestern and HL & P to exclude dealings with other parties was permissible, it is immaterial that these Defendants are now refusing to deal with TCA, whether pursuant to that contract or otherwise. This, in turn, was the exact issue considered by the Supreme Court in Tampa Electric: the antitrust legality of a public utility's contract with a local mining concern for all of its coal requirements at a local generating plant. Like the Court suspects will be a principle issue in the case at bar, the Tampa Electric court considered the proper standards to be applied in determining the size of the geographic market in which a contract allegedly restrains trade. Although the Supreme Court decided that case under § 3 of the Clayton Act, if the Defendants' arrangement passes muster by that standard it is necessarily valid under the narrower strictures of the Sherman Act. Id. at 335, 81 S.Ct. at 632.
Finally, the parties are further ORDERED to file no further pleadings on any of the issues finally disposed of by this Order in this Court, including motions to reconsider and the like, with one exception. If the parties can present to the Court compelling and relevant new evidence or legal authority affecting an issue, which they could not through the exercise of due diligence have presented on original submission of this motion, the parties are invited to bring these to the Court's attention at the time designated above. Otherwise, the parties are instructed to seek any further relief to which they feel themselves entitled in the United States *1385 Court of Appeals for the Fifth Circuit, as may be appropriate in due course.
IT IS SO ORDERED.
NOTES
[1] The Plaintiff actually sued Utility Fuels, Inc., a sister company of HL & P. Since that time, however, Utility Fuels completely merged into HL & P, and HL & P was substituted as a Defendant herein. For the sake of simplicity, this opinion will refer to all activities of Utility Fuels as having been those of HL & P.
[2] TUE is an electric utility which operates several lignite-fueled generating stations in Texas.
[3] HL & P is an electric utility, and Northwestern is a mining company.
[4] Typical of the character of the pleadings bandied about by both sides of this lawsuit, Mike McLaughlin contends that he did not learn of the questionable validity of the leases until after he purchased the land. Given the circumstances, this assertion strains the credulity of the Court.
[5] The Defendants also complain, in their reply to Plaintiff's response, that TCA cannot show that they exercised monopoly power by setting either monopolistic or monopsonistic prices. TCA is not, of course, ever required to make such a showing. See American Tobacco Co. v. United States, 328 U.S. 781, 811, 66 S.Ct. 1125, 1139-40, 90 L.Ed. 1575 (1946) ("It is not necessary that the power thus obtained should be exercised. Its existence is sufficient."); United States v. American Airlines, Inc., 743 F.2d 1114, 1118 (5th Cir.1984) (quoting same), cert. dism'd, 474 U.S. 1001, 106 S.Ct. 420, 88 L.Ed.2d 370 (1985).
[6] Both parties also attempt to re-litigate here the question of the options' initial validity. The parties' attempt to reveal the relevance of this inquiry, however, has been unavailing.
[7] Northwestern further argues that "[t]he fact that those claims were not baseless is established by the state court's refusal to direct a verdict on them." Of course, the state court's refusal to direct a verdict is probative of nothing, and this statement could not be sincerely made by anyone with even a passing familiarity with the mechanics of trial.
[8] TCA does not claim the benefit of the speculative damages exception described in Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971).
[9] In theory, the Court could imagine one reason that HL & P would actually agree to pay inflated prices for its own coal: given that HL & P is a state-regulated utility holding monopolies in various markets for electricity, the payments to Northwestern would appear as legitimate thirdparty expenses in HL & P's rate applications. Therefore, the regulating agency might set rates for HL & P which appear to be reasonable but which would, in fact, allow HL & P to gain monopoly profits through the monopoly prices it pays to itself for coal supplies.
TCA, however, has neither pled nor argued such a motive. Rather, Plaintiff states in its Amended Complaint that HL & P's motive for entering the lignite supply agreements was perfectly legitimate:
In order to operate efficiently, and profitably, that is to say to benefit both ratepayers and investors, electric utilities relying on fossil fuels as an energy source must have secure fuel supplies and supply sources to insure continuous production capacity. The more efficient a production unit (such as Limestone County Nos. 1 and 2) is, the more profitable the power company can be because efficient production insures sales of over-capacity to less efficient producers on the power grid.... [T]he more secure the fossil fuel supply the more efficient the generating station.
Plaintiff's Amended Complaint ¶ 10. Furthermore, this admission by TCA goes far to negate the theory that the Defendants' requirements contract unlawfully restrains trade. The Defendants, however, have not argued this admission as a basis for summary judgment.
[10] Hence the "predatory pricing" exception of Matsushita is inapplicable.
[11] The Defendants argue for summary judgment on the grounds that they have not, in fact, refused to deal with TCA. To this end, HL & P claims to have accepted TCA's offer of sale, and Northwestern claims to have "discussed with TCA the possibility of contract mining." TCA's evidence, however, strongly indicates that these statements are not true and that, in fact, the Defendants have only "discussed" dealing with TCA on the basis of clearly onerous terms. For example, HL & P has "agreed" to purchase TCA's lignite at the bargain price offered, but only if TCA meets conditions such as posting a $6.75 million bond against unspecified possible losses. Such a dichotomy of possible fact findings is a textbook example of a "genuine issue" for trial.
[12] The Defendants cite Thermogenics for the bald proposition that "[a] disgruntled landlord or lessor lacks standing to bring a Section 2 case because a lessor's injuries are not the kind of injuries to competition that the antitrust laws are meant to prevent." This statement calls for two comments. First, the breadth of this proposition is facially preposterous and, of course, unsupported by the cited authority. Second, to the extent that the case otherwise supports the Defendants' motion, the Court would note that, for the most part, the dissenting opinion to that 6-5 en banc decision demonstrates a much more learned appreciation of the current state of antitrust law.
[13] This is only a slight exaggeration; the argument may have had some merit in this Circuit twenty years ago. See Rosemound Sand & Gravel Co. v. Lambert Sand & Gravel Co., 469 F.2d 416 (5th Cir.1972) (finding no Sherman Act jurisdiction in dispute between local gravel companies where defendant's products were mined and sold only intrastate, despite out-of-state character of plaintiff, its potential purchaser, and defendant's suppliers, and defendant's use of Mississippi River and interstate highways).
[14] This critique is not intended as praise by omission for the Plaintiff's advocacy. Against a well-reasoned and factually-supported motion, TCA's cursory and conclusory responses would have been woefully insufficient. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261815/ | 133 Cal.Rptr.2d 149 (2003)
107 Cal.App.4th 221
The PEOPLE, Plaintiff and Respondent,
v.
Joshua James THUSS, Defendant and Appellant.
No. C040272.
Court of Appeal, Third District.
March 21, 2003.
Review Denied June 11, 2003.
*151 Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Rachelle A. Newcomb, and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.
*150 SIMS, J.
Following the denial of his motion to traverse a search warrant and suppress evidence, defendant Joshua James Thuss pled no contest to possession of marijuana for sale in violation of Health and Safety Code section 11359. On appeal, defendant contends: (1) he was denied due process when the trial court refused to admit certain evidence relevant to the affiant's credibility at the traversal hearing (Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (Franks)) and (2) there was insufficient probable cause to support the search warrant for his residence.
We shall conclude that defendant may not complain that certain writings were not admitted in evidence where he did not move the writings into evidence. We shall *152 further conclude that the presence of fresh marijuana clippings in defendant's trash outside his house furnished probable cause to obtain a warrant to search the house. We shall therefore affirm the judgment.
BACKGROUND
On the morning of November 4, 1999, Placer County Sheriffs served a search warrant at defendant's residence located at 4879 Willowbrook Drive in Sacramento. There, officers found 47 marijuana plants, in various stages of maturation, growing in hydroponic grow trays in one of the bedrooms. The officers also discovered a triple beam scale and packaging materials and marijuana clippings in a bag in the garage. After being "Mirandized" (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), defendant admitted to growing marijuana for purposes of sale.[1]
In superior court, defendant moved to traverse the search warrant and suppress the fruits of the search.[2] At the traversal hearing, defendant claimed Placer County Deputy Sheriff Tracy Grant, the affiant of the search warrant, recklessly or intentionally included false and misleading information in his affidavit and that, if this information were excised, insufficient probable cause remained for issuance of a warrant.
The affidavit for the search warrant contained general allegations attesting to Grant's qualifications and experience concerning narcotics. It also contained the following specific statements which were challenged by defendant:
"On 10-18-99 your affiant drove to 4879 Willowbrook Dr. Sacramento, California and observed one vehicle in the driveway to the residence. The vehicle license plate number was 3CQA569. Your affiant obtained DMV records for 3CQA569, which returns to Joshua James Thuss at 4879 Willowbrook Dr. Sacramento, [¶] ... [¶]
"Your affiant contacted Sacramento County Waste Management and determined trash is collected Tuesday at 4879 Willowbrook Dr. Sacramento. On 10-26-99 your affiant and Detective [Goodpasture] conducted a search of the trash can which was placed at the curb side for collection directly in front of 4879 Willowbrook Dr. Sacramento, California. Your affiant found thirty two discarded letters addressed to Joshua Thuss at 4879 Willowbrook Dr. Sacramento, California. Your affiant also found marijuana stems and leaves recently cut from a mature marijuana plant. The marijuana was fresh green and still moist and had been recently cut from a mature plant .... [¶] ... [¶]
"Your affiant subpoenaed subscriber and power usage records for 4879 Willowbrook Dr. Sacramento, California from Sacramento Municipal Utility District SMUD. The subscriber for power is Joshua J. Thuss. The records revealed high power use for the past nine months for a total of 11,976 KW with a [sic] average of 1330 KW used a month. Your affiant compared power use at 4879 Willowbrook Dr. Sacramento, California with other like residences located in the same neighborhood. The power use at 4879 Willowbrook Dr. Sacramento is 143 to 252 percent higher than the power use at the other like residences when compared over the same nine month period. The residences used as comparison were:
*153 "4878 Willowbrook Dr. Sacramento, California, which used 8,342 KW for the same nine month period (926 KW monthly average).
"4884 Willowbrook Dr. Sacramento, California, which used 6,604 KW for the same nine month period (733 KW monthly average).
"4890 Willowbrook Dr. Sacramento, California, which used 4,737 KW for the same nine month period (526 KW monthly average)."
The affidavit then explained that such high power consumption is consistent with the use of the equipment needed to grow marijuana indoors, such as grow bulbs, ballasts, fans, and water pumps.
At the hearing, defendant attempted to show that Grant had falsely averred that he found marijuana cuttings in defendant's trash, falsely averred that he had subpoenaed power usage records for defendant's home, and omitted material facts regarding defendant's power usage, and provided false information regarding how he obtained defendant's Department of Motor Vehicle (DMV) records.
Defendant testified at the hearing. He stated his car was not outside his house on October 18, 1999, as claimed by Grant. On that date, his sister (who testified to the same) had borrowed his car. He also testified he had educated himself about the dangers of growing marijuana and never put anything relating to cultivation in the garbage because he knew that police could obtain a search warrant based on its discovery. He also denied throwing away the mail Grant claimed to have found because that mail contained unopened bills and loan documents. He was absolutely positive he did not throw them out on the date alleged. After he was arrested, he had told Grant that he usually double-bags the marijuana clippings and discards them in different dumpsters around town. The officers recovered one of his bags of clippings from his garage during the search of his house.
Defendant also called numerous witnesses to establish that Grant had a pattern and practice of including similar misrepresentations in other search warrant affidavits he had authored. We recount this testimony as follows:
Sheri VanDerheydt testified her residence located at 4716 Kerwood Way in Sacramento was searched pursuant to a warrant on January 5, 1999, and no marijuana was found. She acknowledged, however, that after the search, her husband was arrested and charged with possession of marijuana. She testified that it was impossible for Grant to have found marijuana in her trash can on December 21, 1998, as he had alleged in the search warrant affidavit, because on that day there was an ant infestation and her husband had put the trash can out at the last possible moment. The trash was on the curb for only 40 minutes and, although she was packing for a trip, she kept an eye on it the entire time it was outside. She could see the trash can from her kitchen window and no one went through her trash before the trash collector arrived. Her husband, Rodney VanDerheydt, testified that any marijuana found in the residence during the execution of the search warrant was not his.
With respect to the VanDerheydt residence, Grant testified that he did search the trash after having transported it to a nearby location. It would have been dark outside at the time he collected the trash and he recalled there had been no visible movement and did not recall any lights on inside the residence. Sergeant Keven Besana also testified that he took part in the search of the VanDerheydt trash in which they found marijuana. Besana also *154 took part in the later search of the residence and the officers found brown paper bags of marijuana in two separate rooms.
Chris Miller also denied that Grant could have found "moist green stems recently cut from a true marijuana plant and two letters" during the search of his trash as alleged in Grant's affidavit. Miller testified he has never put marijuana stems or leaves in his trash, but instead, either composts them in his backyard or burns them in his fireplace. Miller admitted, however, that he does grow marijuana.
Besana testified that he participated in the search of Miller's trash and that marijuana was found during the search.
Amy Breeze testified that Grant lied in his search warrant affidavit for her residence at 3965 Folsom Boulevard in Sacramento. She stated the car in her driveway that Grant averred he ran with DMV (and DMV showed was registered to her) had not even been registered in the state. Moreover, the license plate number Grant indicated he saw on her car (K882335) was actually the number of her expired disabled person's placard and was never affixed to any vehicle at the residence. Breeze also testified that Grant's averment that he had contacted Sacramento County Waste Management to find out the day refuse was collected was false because the collecting entity for her residence was Sacramento City Solid Waste Management. Breeze also denied having discarded the letters Grant said were found in her trash and claimed Grant could not have found marijuana leaves and stems in her trash because she made it a practice to never so dispose of such items.
Grant offered explanations for the discrepancies. During his testimony, he explained that the statement that "license plate number C882335" was on a vehicle in front of the residence was an inadvertent inaccuracy. He and his partner went by the residence and wrote down the license plate numbers of the two vehicles that were there; however, the placard number had already been written on that piece of paper and, when preparing the affidavit, he accidentally wrote down the wrong number. He also testified that he composed his search warrant affidavits from a template and, if he identified the wrong waste collection entity, it was the result of an inadvertent failure to correct the name which generally appears on the template. Besana testified that he participated in the trash search and that marijuana was found in the trash.
Robert Whiteaker also testified that Grant had included false averments in the search warrant affidavit for his residence located at 7230 6th Street in Rio Linda. The affidavit stated that Whiteaker's Dodge Caravan was in the driveway of the residence on April 12, 1999. Whiteaker testified that April 12, 1999, fell within a six-week period, the entirety of which the Caravan was undergoing repairs at a transmission shop. Whiteaker's testimony was supported by both a receipt from the towing service showing the vehicle had been towed in on March 25, 1999, and a repair order for May 5, 1999, and by the testimony of Wes Donnel, the owner of the transmission shop, who verified that the shop had possession of the vehicle in April of 1999. Whiteaker also denied that Grant could have found fresh marijuana in his trash as averred in the search warrant affidavit because he disposed of all clippings in a mulch pile in the backyard.[3]
*155 Grant testified that he could have been mistaken in his affidavit regarding the date he observed the vehicles in the driveway of the Whiteaker residence, since he had started looking at the residence in early March and had seen the two vehicles listed on the affidavit a few times during the early part of March. Grant was also at the residence on April 12, 1999, to perform a trash search but arrived too late. He testified it was possible he could have a March date instead of an April date for the date he observed the vehicles in the driveway.
Robert DeArkland also asserted that Grant had made false statements in the search warrant affidavit for his residence located at 8553-B Almaz in Fair Oaks. DeArkland testified that Grant could not have found "fresh leaves and moist stems from mature marijuana plants" in his garbage on the date of the alleged trash search as stated in the affidavit because DeArkland's 13 marijuana plants were no more than 18 inches tall at that time and he would never cut anything off plants of this size. Additionally, the trash can was not located directly in front of his house as Grant averred, but was located in front of the neighbor's house. Also, Grant could not have seen DeArkland's truck parked outside the residence because he always parks his truck in the back where it is not visible from the street.
Both Grant and Besana testified that they participated in the search of DeArkland's trash and found marijuana during the search. Grant also specifically recalled seeing DeArkland's vehicle at the residence parked in front of an open garage door, and recalled DeArkland being present and watching Grant.
A warrant to search the residence at 7112 Grenola Way, supported by an affidavit by Grant, was also entered into evidence. The affidavit states that a January 7, 1999, trash search at the residence recovered "fresh green and still moist" "marijuana stems recently cut from a mature marijuana plant." The affidavit also states that Sacramento Municipal Utility District (SMUD) records reflected the residence's power usage for the prior 12 months (13431 KW) to be "30 percent to over 300 percent higher" than the power usage at "other like residences," specifically 7116 Grenola Way (4534 KW), 7128 Grenola Way (7621 KW), and 7133 Grenola Way (8456 KW). A January 11, 1999, subpoena to SMUD that had attached a partial record for 7112 Grenola Way, and records for 7116 Grenola Way, 7128 Grenola Way and 7133 Grenola Way was also admitted into evidence. Also attached were records for 7121 Grenola Way, which was not included in Grant's affidavit as a comparison residence, and which reflected a power usage of 12386 KW. Grant testified he could not recall whether he had the written records from this subpoena when he prepared his affidavit. Grant also explained that he sometimes investigates the reason for the high usage when one of the comparison residences has an "extraordinarily high power" usage. Grant did not recall, however, if he did so with respect to the Grenola Way residences.
Defendant also called two representatives from SMUD to testify at the hearing. Through their testimony it was established that SMUD no longer had any pre-1999 records (including any subpoenas) which may reflect which SMUD power usage records Grant may have requested or what information was sent pursuant to any of Grant's subpoenas; that after a subpoena was served, SMUD sometimes gave power usage information over the telephone; that SMUD had given Grant power usage information over the telephone in the past, but that neither had any recollection of any information they may have provided to *156 Grant for any address relevant to this case.
At the conclusion of the hearing, the court made the following ruling: "In reviewing my notes, considering all the items that have been presented to the Court, I am very confused about the SMUD thing, so I eliminated that, redacted that from the affidavit.
"The car thing, if he isI may give you the benefit of the doubt on that.
"I am not, though, confused about the garbage. I think the garbage is good. I think, with that being the case, there [are] sufficient [facts] to uphold the warrant.
"The Motion to Traverse is denied."
Thereafter, defendant pled no contest to possession of marijuana for sale. (Health & Saf.Code, § 11359.) The court suspended imposition of sentence and placed defendant on probation for a term of three years. As a condition of probation, defendant was to serve six days in county jail.
DISCUSSION
I
Defendant Received a Fair Hearing on His Motion to Traverse the Warrant
Under Franks, supra, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667, a defendant attacking a search warrant has the burden of first establishing a sufficient threshold to warrant an evidentiary hearing by demonstrating that there were reckless or deliberate material misstatements of fact in the affidavit for the search warrant. This is a factual showing. The court "must conduct an evidentiary hearing if a defendant makes a substantial showing that: (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth and (2) the affidavit's remaining contents, after the false statements are excised, are insufficient to justify a finding of probable cause. At the evidentiary hearing, if the statements are proved by a preponderance of the evidence to be false or reckless, they must be considered excised. If the remaining contents of the affidavit are insufficient to establish probable cause, the warrant must be voided and any evidence seized pursuant to that warrant must be suppressed. [Citation.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1297, 65 Cal.Rptr.2d 145, 939 P.2d 259, citing Franks.) Defendant bears the burden of showing material misstatements in the affidavit. (Ibid)
Defendant contends he was denied his due process right to a full and fair hearing when the court excluded proffered evidence relevant to Grant's credibility. Defendant contends he was prejudiced by the exclusion of this additional circumstantial evidence because, had the court heard and been persuaded by this evidence, it may have been convinced that Grant was untruthful about the trash search. Without the information about the trash search, there would be no probable cause to issue the search warrant.
Defendant argues the following evidence should have been admitted: (1) 23 search warrant affidavits from unrelated cases in which the averments made by Grant are essentially identical to those in the search warrant affidavit for defendant's residence (i.e., the affiant went through the trash and found fresh, moist marijuana clippings, compared SMUD records and ran DMV records); (2) a search warrant affidavit for 8418 Ascolano Way in which Grant included only three power comparisons but where he requested four comparisons from SMUD; (3) a bag of marijuana leaves seized from defendant's home when the search warrant was served; and (4) photographs of the trash evidence and a large *157 bag of marijuana leaves seized from a Folsom Boulevard residence and booked into evidence a month after the search. We shall address each of these in turn.
A. Twenty-three Search Warrant Affidavits
Defendant argues the 23 other search warrant affidavits should have been admitted for the purpose of showing the similarity in the averments. While finding fresh, moist marijuana cuttings in the trash of 23 separate individuals at about the same time would be highly unusual and would therefore be relevant to undermining Grant's credibility and the accuracy of his affidavits, the record does not demonstrate the other affidavits were ever offered in evidence and excluded. Instead, there was merely a discussion between defense counsel and the court.
After defense counsel proffered a search warrant served upon a separate residence on another occasion, and the court asked what other evidence was going to reveal the relevance of the proffered warrant, the following colloquy took place:
"[Defense counsel]: I think it is relevant because it goes to the credibility of this officer. It goes to one of the search warrants that he indicated he had subpoenaed the SMUD records, for which we have the documents that were provided by SMUD that showed there was no
"THE COURT: Let mebut there is also testimony by SMUD they might have handled it without doing the
"[Defense counsel]: I have a proffer on that too ....
"THE COURT: Not allow it in. You already made your point on that. That is a side track issue...."
Thereafter, the colloquy continued as follows:
"[Defense counsel]: Part of listening to the facts is toand, again, the SMUD recordsis to determine whether or not there's been false allegations made in other search warrants. I mean we have 23 search warrants that essentially say identical things, *We went through the trash we did the SMUD, we did the DMV, and we got a search warrant.' We are talking about 23almost exactly all alike.
"THE COURT: That is notlet me say something in that regard. I sign more search warrants than anybody else in this county. Most search warrants are all alike. I don't get original search warrants
"[Defense counsel]: Then we have situations where
"THE COURT: because most of the facts are the same, not just here, but, normally, I get cases there has beenand I'm not going one way or another; I am thinking out loudthere is [sic] cases where there is a confidential informant, there is a secret, and there is a buy. All those warrants are the same; the person was searched, go in and make a search. Nothing extraordinary.
"[Defense counsel]: No, there is not, except, in this case, we found that, in numerous of them, over ten, that these suggestions that they got subpoenaed records or they subpoenaed records from SMUD"
There was no further discussion about the 23 other search warrants. Consequently, defense counsel never requested the documents be admitted in evidence and the court made no ruling excluding them. As we shall explain, in these circumstances, we can find no error.
The procedures for offering a writing (such as a search warrant affidavit) in evidence are the same in civil and criminal cases. (See Pen.Code, § 1102.) "The *158 writing should be offered in evidence and given an identifying exhibit number. [Citations.]" (3 Witkin, Cal. Evidence (4th ed.2000), Presentation at Trial, § 149, p. 213.) The proper method for offering a writing in evidence is as follows: (1) Mark the writing for identification; (2) Disclose to opposing counsel; (3) Disclose to judge; (4) Demonstrate admissibility of writing; (5) Offer writing into evidence; and (6) Obtain court's ruling on admissibility. (2 Cal. Trial Practice: Civil Procedure During Trial (Cont.Ed.Bar 3rd ed.2001 supp.) Trial Exhibits, § 13.45, p. 753.)
An offer in evidence typically takes one of the following forms: "Your honor, I ask that Plaintiffs Exhibit 1 be received in evidence," or, "Your honor, I move that Plaintiffs Exhibit 1 be admitted into evidence." (Id. § 13.55, p. 760.)
The offer of the exhibit (in this case a writing) in evidence, is the formal request to the court to make a ruling on the admissibility of the exhibit.
In this case, none of the 23 warrant affidavits was marked as an exhibit; there was no offer of the 23 affidavits in evidence; and the trial court made no ruling thereon. Because the 23 warrant affidavits were not marked for identification, they do not appear in the record on appeal. Trial counsel's remark that, "we have 23 search warrants that essentially say identical things" was not an offer in evidence of the warrants or their supporting affidavits. Because defendant's trial counsel never offered the 23 warrant affidavits in evidence, and received no ruling on their admissibility, there is no ruling for this court to review, and defendant's contention of error may not be sustained. (See People v. Rowland (1992) 4 Cal.4th 238, 259, 14 Cal.Rptr.2d 377, 841 P.2d 897; Frank v. Dominick (1953) 122 Cal.App.2d 45, 52-53, 264 P.2d 161; Spanfelner v. Meyer (1942) 51 Cal.App.2d 390, 391-392, 124 P.2d 862.)
B. Search Warrant Affidavit for 8418 Ascolano Way
In response to defendant's proffer of the search warrant affidavit for 8418 Ascolano Way as a second example of Grant's having left a fourth higher power usage comparison off his affidavit, the court flatly refused to admit the evidence. We find any error in excluding this evidence harmless since the court excised the SMUD information from the affidavit. With the SMUD information excised, the only probative value of the proffered evidence was tangential to Grant's general credibility. Considering the substantial amount of evidence attacking Grant's credibility that was received into evidence, we do not find it reasonably probable a more favorable result would have been reached had the evidence been admitted. (See People v. Boyette (2002) 29 Cal.4th 381, 427-428, 127 Cal.Rptr.2d 544, 58 P.3d 391, rehg. den., opn. mod. Feb. 11, 2003 [proper standard of review of rejection of some evidence concerning a defense is that announced in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension stated in Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705].)
C. Bag of Marijuana Seized from Defendant's Home
When defendant requested to present the bag of marijuana leaves seized from defendant's home to corroborate his claim that he bags his marijuana clippings for off-site disposal, the court replied, "That has nothing to do with this affidavit." Defendant contends the trial court erred.
"`Relevant evidence' means evidence, including evidence relevant to the *159 credibility of a witness ... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210; italics added.) It was error to exclude this relevant evidence, which tended to corroborate defendant's testimony, but the error was harmless because there was no dispute that the officers recovered the bag of marijuana clippings in the search of defendant's residence.
D. Photographs of Trash Plus Bag of Marijuana Seized from Folsom Boulevard Residence
Finally, when defendant proffered the photographs of the trash evidence and a large bag of marijuana leaves seized from a Folsom Boulevard residence but kept at a covert search location for a month, apparently to provide visual evidence that Grant had ready access to such items, the court stated, "No. Too much, folks. Too much." The court's comment may be fairly construed as a ruling under Evidence Code section 352 that the evidence was cumulative and/or unduly time consuming. "A trial court's exercise of discretion in admitting or excluding evidence [under Evidence Code section 352] is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10, 82 Cal. Rptr.2d 413, 971 P.2d 618.) In light of the amount of evidence received by the court on the question of Grant's credibility, and in light of the obvious purpose supplied for the admission of this particular evidence, we cannot say the court's decision to exclude the proffered evidence was arbitrary, capricious, or patently absurd. Thus, we find no error.
In sum, we conclude defendant received a full and fair hearing.
II
The Warrant was Supported by Probable Cause
As noted, defendant received a fair Franks hearing. At the conclusion of the hearing, the court stated it was confused and redacted the SMUD information from the affidavit. Defendant contends insufficient information remained in Grant's affidavit to support a finding of probable cause for the search warrant. We disagree.
Even absent the information in the affidavit that defendant used substantially more power over the previous nine-month period than the comparable residences in his neighborhood (a fact that may indicate he was utilizing grow lights, fans, and other electrical devices to cultivate indoors), the fact remained that a search of defendant's trash produced marijuana stems and leaves recently cut from a mature plant. Grant's explanation that, based on his training and experience, stems are routinely discarded by those growing marijuana was also included in the affidavit. We disagree with defendant that this was insufficient to establish the requisite probable cause to issue the search warrant.
"The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. [Citations.] `The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of *160 persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041, 99 Cal.Rptr.2d 1, 5 P.3d 68, quoting Illinois v. Gates (1983) 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527.) "... [T]he warrant can be upset only if the affidavit fails as a matter of law [under the applicable standard announced in Illinois v. Gates, supra, 462 U.S. at p. 238, 103 S.Ct. 2317] to set forth sufficient competent evidence supportive of the magistrate's finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony. [Citations.]" (Skelton v. Superior Court (1969) 1 Cal.3d 144, 150, 81 Cal.Rptr. 613, 460 P.2d 485.) This standard of review is deferential to the magistrate's determination. (People v. Hepner (1994) 21 Cal.App.4th 761, 775, 26 Cal.Rptr.2d 417.)
The discovery of recently cut marijuana stems and leaves in a trash can that has been shown to contain defendant's residential trash establishes a fair probability (i.e., probable cause to believe) that contraband may be found in his residence. Defendant cites to People v. Gray (1976) 63 Cal. App.3d 282 at page 289, 133 Cal.Rptr. 698 for the proposition that finding marijuana in his trash on a single occasion is not sufficient. However, Gray upheld the sufficiency of a warrant affidavit. (Id. at p. 291, 133 Cal.Rptr. 698.) While Gray involved prolonged observation of marijuana debris in the individual's trash left in an apartment complex dumpster, along with suspicious traffic in and out of the individual's residence, there is nothing in Gray to suggest that lesser factors such as those in this case would not constitute probable cause.
We are also aware of the recent decision from the First District, Division Four, in People v. Pressey (2002) 102 Cal.App.4th 1178, 126 Cal.Rptr.2d 162, where the court held that the discovery of illegal drugs, not for sale, in a vehicle during a traffic stop of an individual who is under the influence, does not necessarily provide probable cause to search the user's residence. (Id. at p. 1190, 126 Cal.Rptr.2d 162.) Assuming without deciding that Pressey is correctly decided, it is easily distinguishable. Pressey involved the discovery of drugs in a vehicle, at a distance from defendant's residence, not in a trash can in front of a residence. (Id. at p. 1181, 126 Cal.Rptr.2d 162.) Here, the recently cut marijuana stems and leaves were found in front of defendant's residence in a trash can that contained letters belonging to defendant. Such facts are sufficient to connect the illegal activity with the residence.
Likewise, defendant's reliance on California v. Greenwood (1988) 486 U.S. 35, 40-41, 108 S.Ct. 1625, 100 L.Ed.2d 30 for the proposition that anyone could have access to the trash can once it was left on the curb for refuse removal and, therefore, what was found inside could not establish probable cause for the search of his residence is misplaced. Although Greenwood acknowledged that third parties may have access to trash left on the curb for removal, it did not conclude that the trash inside a can left at the curb did not probably come from the residence. Although it is possible that some third party put fresh marijuana clippings in defendant's trash, "Certainty is not required at this stage." (People v. Andrino (1989) 210 Cal.App.3d 1395, 1401, 259 Cal.Rptr. 17.) Rather, "probable cause `"means less than evidence which would justify condemnation .... It [describes] circumstances which warrant suspicion.'" [Citations.]" (Humphrey v. Appellate Division (2002) *161 29 Cal.4th 569, 573, 127 Cal.Rptr.2d 645, 58 P.3d 476.) In this case, there is a "fair probability" (People v. Kraft, supra, 23 Cal.4th 978, 1040, 99 Cal.Rptr.2d 1, 5 P.3d 68) that the trash in defendant's trash can (including fresh marijuana clippings) came from defendant's house.
Thus, we hold that, even after redacting the SMUD information from the affidavit, the trial court properly concluded that sufficient information remained in the affidavit to support a finding of probable cause for the issuance of a search warrant for defendant's residence.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., and RAYE, J.
NOTES
[1] Because this case comes to us after a plea, the facts of the offense are taken from the probation report.
[2] Although the motion was made and determined in Superior Court, the motion was heard by superior court Judge Gary Ransom, who had issued the warrant while sitting as a magistrate. (See Pen.Code, § 1538.5, subd. (b).) Neither party contests the procedure.
[3] When Whiteaker could not recall if the search of his residence resulted in the discovery of more than 5 or about 300 marijuana plants, the court stated, "I have no faith in this witness here." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261857/ | 132 Cal.Rptr.2d 144 (2003)
107 Cal.App.4th 488
The PEOPLE, Plaintiff and Appellant,
v.
SUPERIOR COURT of Tulare County, Defendant and Respondent.
No. F040745.
Court of Appeal, Fifth District.
March 26, 2003.
*146 Phillip J. Cline, Tulare County District Attorney, Don H. Gallian, Assistant District Attorney, Carolyn B. Turner, Assistant District Attorney, and Barbara J. Greaver, Deputy District Attorney, for Plaintiff and Appellant.
Kathleen Bales-Lange, County Counsel, and John A. Rozum and Bryan C. Walters, Deputy County Counsel, for Defendant and Respondent.
*145 OPINION
DIBIASO, Acting P.J.
A county grand jury sought access to certain juvenile court records under Welfare and Institutions Code section 827,[1] subdivision (a)(1)(M). The trial court denied the petition; we affirm. We hold that the grand jury failed to demonstrate the records were necessary or relevant to any specific grand jury investigation.
Appellant Tulare County Grand Jury filed a petition in the Tulare County Superior Court under section 827, subdivision (a)(l)(M) (subpart (M)), for an order permitting appellant to inspect all the records of the juvenile court pertaining to In Re Isaiah C. (Super. Ct. Tulare County, No. J51704), a dependency proceeding. Appellant did not support its petition with any particular facts showing "good cause" for the records except to state that the records were required in connection with an ongoing "public watchdog" investigation being conducted by appellant under Penal Code section 925. (See McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162, 1170, 245 Cal.Rptr. 774, 751 P.2d 1329.) The juvenile court denied the petition after appellant refused to provide the court with any further information about the nature or extent of its investigation or the relationship and relevance of the records to the investigation; appellant took the position that divulging such information would constitute a violation of the rule of grand jury secrecy. (See, e.g. Daily Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117, 1124-1126, 1128-1129, 86 Cal.Rptr.2d 623, 979 P.2d 982 (Daily Journal) [there is a "`strong historic policy of preserving grand jury secrecy'"]; McClatchy Newspapers v. Superior Court, supra, at p. 1174-1175, 1180, 245 Cal.Rptr. 774, 751 P.2d 1329["[G]rand jury secrecy is the rule and openness the exception, permitted only when specifically authorized by statute"]; People v. Superior Court (2000) 78 Cal.App.4th 403, 415-116, 92 Cal. Rptr.2d 829 [grand jury process must be kept confidential].)[2]
*147 DISCUSSION
I.
Section 827 and California Rules of Court,[3] rule 1423, which control the dissemination of confidential juvenile records, reflect a determination by the Legislature that the juvenile court has both the "`sensitivity and expertise' to make decisions about access to juvenile records." (Pack v. Kings County Human Services Agency (2001) 89 Cal.App.4th 821, 827, 107 Cal.Rptr.2d 594; In re Keisha T. (1995) 38 Cal.App.4th 220, 229, 44 Cal.Rptr.2d 822.) Section 827 permits only certain identified categories of individuals to inspect juvenile records without prior leave of the juvenile court. (See § 827, subd. (a)(l)(A)-(L) (subparts (A)-(L)).) Any "other person" not included in one of the categories of subparts (A)-(L) who wants to see juvenile records must secure the permission of the juvenile court. (Subpart (M).) Subpart (M) gives the juvenile court the exclusive authority to determine when juvenile records will be released to an "other person." (T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 778, 94 Cal.Rptr. 813, 484 P.2d 981; In re Tiffany G. (1994) 29 Cal.App.4th 443, 451, 35, Cal.Rptr.2d 8; In re Michael B. (1992) 8 Cal.App.4th 1698, 1706, 11 Cal. Rptr.2d 290.)
Because it is not among the chosen of subparts (A)-(L), a grand jury has no self-executing right to inspect juvenile records and thus must petition the court as any "other person" under subpart (M).[4](In re Keisha T, supra, 38 Cal.App.4th at p. 232, 44 Cal.Rptr.2d 822.) Rule 1423, subdivision (c), requires that a subpart (M) applicant:
"petition the court for authorization using Judicial Council form JV-570, Petition for Disclosure of Juvenile Court Records. The specific records sought shall be identified based on knowledge, information, and belief that such records exist and are relevant to the purpose for which they are being sought. Petitioner shall describe in detail the reasons the records are being sought and their relevancy to the proceeding or purpose for which petitioner wishes to inspect or obtain the records." (Rule 1423, subd.(c).)
When such a petition is presented, the juvenile court's duty is to "balance the interests of the child and other parties to the juvenile court proceedings, the interests of the petitioner, and the interests of the public." (Rule 1423, subd.(b).) To do so, the court "must take into account any restrictions on disclosure found in other statutes, the general policies in favor of confidentiality and the nature of any privileges asserted, and compare these factors *148 to the justification offered by the applicant" in order to determine what information, if any, should be released to the petitioner. (Pack v. Kings County Human Services Agency, supra, 89 Cal. App.4th at p. 829, 107 Cal.Rptr.2d 594.) The court may permit access "only insofar as is necessary, and only if there is a reasonable likelihood that the records ... will disclose information or evidence of substantial relevance to the pending ... investigation." (Rule 1423, subd. (b).) The process "may be lengthy, and the balance of the concerns weigh predominately against access." (Pack v. Kings County Human Services Agency, supra, 89 Cal.App.4th at p. 829, 107 Cal.Rptr.2d 594.)
Here, appellant made no showing, under the provisions of rule 1423, subdivision (c) or otherwise, to warrant the release of any of the desired records or information. Appellant simply made a general request to the court for "[a]ll documents within [the dependency] case file ... and information contained therein," and appellant's only justification was the statement "Grand Jury investigation pursuant to Penal Code 925." Because appellant did not provide the court with any specific facts concerning appellant's need for the records or their relevance to any legitimate grand jury activity, the juvenile court had no basis upon which to determine whether and to what extent the request was appropriate. The court was unable to balance the confidentiality interests of the juvenile with the interests of the grand jury acting in its public watchdog function. The court therefore properly denied appellant's subpart (M) petition.
II.
Appellant's stance on this appeal is the same as its stance in the juvenile court. Appellant claims the juvenile court was compelled to grant it unrestricted access to the identified juvenile records with "no questions asked" because it is a grand jury and there is a public interest in the unfettered investigative power of the grand jury which overrides what appellant characterizes as the public's lesser interest in the confidentiality of juvenile court records. Citing M.B. v. Superior Court (2002) 103 Cal.App.4th 1384, 127 Cal.Rptr.2d 454, appellant takes the position its status as a grand jury armed with the power to investigate matters of public concern established, without more, the required "good cause" for an access order under subpart (M). Appellant's argument rests upon the premise that there is an irreconcilable conflict between section 827 and Penal Code section 925 which must be resolved in favor of the public policy concerns underlying Penal Code section 925.[5]
We agree that strong public policy underlies the civil investigative function of a grand jury. (People v. Superior Court (1973 Grand Jury) (1975) 13 Cal.3d 430, *149 436-437, 119 Cal.Rptr. 193, 531 P.2d 761.) But strong public policy also underlies the confidentiality accorded to juvenile proceedings (T.N.G. v. Superior Court, supra, 4 Cal.3d at p. 778, 94 Cal.Rptr. 813, 484 P.2d 981); in fact, the policy is so substantial it has resisted unrestricted intrusions based upon federal First Amendment rights. (See San Bernardino County Dept. of Public Social Services v. Superior Court (1991) 232 Cal.App.3d 188, 204-205, 283 Cal.Rptr. 332.)
Appellant does not suggest a principled basis upon which we might prefer its interests over those of the juvenile system; appellant merely assumes that its identity as a grand jury suffices. Whether this is so is beside the point, because we think any conflict between the competing public policies has already been resolved by the branch of governmentthe Legislature vested with the constitutional power to decide what is wise and what is unwise public policy and which policy considerations are entitled to preeminence. (See Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52-53, 51 Cal.Rptr.2d 837, 913 P.2d 1046 [the choice among competing public policy considerations in enacting laws is a legislative, not a judicial, function]; T.N.G. v. Superior Court, supra, 4 Cal.3d at p. 781, 94 Cal.Rptr. 813, 484 P.2d 981 [Legislature's decision in favor of the confidentiality of juvenile records represents a policy choice].) Thus far, the lawmakers have not been of the mind to permit a grand jury to have access to confidential juvenile records in the absence of a court order entered upon an adequate showing of need and relevance. Title 4 of Part 2 of the Penal Code, including sections 924 and 924.1, was first enacted in 1959. (Stats.1959, ch. 501, p. 2443, § 1.) Penal Code section 924.1 was amended in 1986. (Stats.1986, ch. 357, § 1.) Other provisions of Title 4 have been amended and added to regularly over the years. The Supreme Court's jurisprudence on the strict rule of grand jury secrecy extends back to at least 1862. (See Daily Journal, supra, 20 Cal.4th at pp. 1125-1126, 86 Cal.Rptr.2d 623, 979 P.2d 982.) Section 827 was first enacted in 1961 (stats.1961, ch. 1616, p. 3494, § 2) and has been amended virtually every year since it first appeared (see Historical and Statutory Notes 73A West's Ann.Welf. & Inst.Code (1998 ed.) Foll. § 827, pp. 429-431). We must presume from this history that the Legislature had the principle of grand jury secrecy in mind when it produced, and as it has continuously changed, section 827 and thus that the Legislature intentionally omitted grand juries from the select list found in the present version of subparts (A)-(L). (Bailey v. Superior Court (1977) 19 Cal.3d 970, 977-978, fn. 10, 140 Cal. Rptr. 669, 568 P.2d 394.) And even if the omission was the product of legislative oversight, we cannot correct the mistake. (Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal.Rptr.2d 531, 828 P.2d 672 ["Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history"]; Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1105-1106, fn. 8, 17 Cal. Rptr.2d 594, 847 P.2d 560 [accord]; see Code Civ. Proc., § 1858 [a court must not "insert what has been omitted"].)[6]
*150 Appellant also appears to take the position that rule 1423 is invalid because, by imposing specific procedural requirements on a petitioner and by directing the factors the court must take into account in ruling on a petition, the rule impermissibly restricts what appellant claims is the juvenile court's subpart (M) statutory authority to permit access regardless of any consideration of "good cause." First, there is no fatal inconsistency between rule 1423 and subpart (M). Section 827 authorizes certain categories of individuals to have access to dependency records without court permission and requires all others to secure a court order as a condition of access. The Legislature's decision to give some but not all persons free entry into juvenile records manifests an intent that those not expressly enumerated must show a legitimate need for the records. Rule 1423 is the Judicial Council's considered statement of those procedures and elements pertinent to a decision by the juvenile court to permit access to one not automatically entitled to it. We think the contents of the current rule deal with appropriate matters of procedure and are not inconsistent with the letter or spirit of subpart (M). (See Cal. Const. art. VI, § 6; Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 709-710, 93 Cal. Rptr.2d 580.) Indeedand with apologies to Voltairebecause the Legislature gave juvenile courts the authority to receive and rule on petitions for access but did not prescribe any implementing procedures or substantive standards, if rule 1423 did not exist the courts would have to invent it. (Code Civ. Proc. § 187; Walker v. Superior Court (1991) 53 Cal.3d 257, 266-267, 279 Cal.Rptr. 576, 807 P.2d 418 [courts have inherent power to devise new procedures to help ensure the efficient administration of the courts]; In re Jeanette H. (1990) 225 Cal.App.3d 25, 34-35, 275 Cal.Rptr. 9.)
Additionally, to the extent appellant means to say that rule 1423 circumscribes what appellant considers the courts' power under subpart (M) to permit access to a person not listed in subparts (A)-(L) without a showing of good cause, the Legislature rejected any intention to grant such unrestricted authority to the courts by the very language used in section 827 and by the manner in which the statute was constructed. Had the Legislature been inclined to allow any applicant access to juvenile records for any reason or for no reason, section 827 would not read as it does.
Nothing in M.B. v. Superior Court, supra, 103 Cal.App.4th at p. 1384, 127 Cal. Rptr.2d 454, persuades us otherwise. M.B. did not address section 827. M.B. instead dealt with a subpoena duces tecum issued in a criminal grand jury proceeding. The court held that such a subpoena need not be supported by an affidavit demonstrating "good cause" and materiality. (Id. at p. 1393, 127 Cal.Rptr.2d 454.) The decision rested upon the distinction between general civil proceedings and criminal proceedings, and found that Code of Civil Procedure sections 1985 and 1987.5, the statutes which require that an affidavit of good cause and materiality be served with a subpoena duces tecum, simply did not apply to either criminal trials or criminal grand jury proceedings. (M.B. v. Superior Court, supra, 103 Cal.App.4th at pp. 1394-1395,127 Cal.Rptr.2d 454.)
M.B. does restate the proposition that the "`law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority.'" (103 Cal.App.4th at p. 1386, 127 Cal.Rptr.2d 454, italics omitted.) However, *151 the precedent for the principle was the United States Supreme Court's opinion in United States v. R. Enterprises, supra, 498 U.S. at pp. 300-301, 111 S.Ct. 722, a criminal case which addressed only rule 17(c) of the Federal Rules of Criminal Procedure, and the three opinions cited by the United States Supreme Court United States v. Mechanik (1986) 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50, Hamling v. United States (1974) 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, and United States v. Johnson (1943) 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546were also federal criminal cases. Moreover, even if the presumption applies to civil grand jury matters, there remains the Legislature's express exclusion of all grand juries, whether or not acting within the scope of their authority, from the list of persons and entities with an untrammeled right of access to juvenile records and information. A grand jury's desire for juvenile information which arises from an otherwise legitimate investigation implicates the public policy interests behind Penal Code section 925 but does not implicate the public policy interests behind juvenile confidentiality, and, as we have concluded, the Legislature in section 827 explicitly rejected the notion that the former should always prevail over the latter.
Undoubtedly, the grand jury plays an important role as a public watch dog (McClatchy Newspapers v. Superior Court, supra, 44 Cal.3d at p. 1170, 245 Cal.Rptr. 774, 751 P.2d 1329; Board of Retirement v. Santa Barbara County Grand Jury (1997) 58 Cal.App.4th 1185, 1187, 68 Cal.Rptr.2d 607), but the standoff between the competing policies served by section 827 and Penal Code section 925, if there is such a standoff, can only be resolved, if it is to be resolved, by the Legislature.
DISPOSITION
The order denying appellant's petition for access to the specified juvenile court records and information is affirmed. Each side shall bear its own costs on appeal.[7]
WE CONCUR: BUCKLEY and WISEMAN, JJ.
NOTES
[1] All further references to section 827 are to Welfare and Institutions Code section 827.
[2] The statutes pertaining to and governing grand jury proceedings are found in Title 4 of Part 2 of the Penal Code. Included among these provisions are Penal Code sections 924 [a grand juror who willfully discloses, before the defendant has been arrested, the existence of a felony information or indictment is guilty of a misdemeanor], 924.1, subdivision (a) [a grand juror "who, except when required by a court, willfully discloses any evidence adduced before the grand jury, or anything which he himself or any other member of the grand jury has said, or in what manner he or she or any other grand juror has voted on a matter before them, is guilty of a misdemeanor"], 924.2 [a grand juror must keep secret what he or she or any other grand juror has said and how or in what manner he or she or any other grand juror has voted], and 924.3 [a grand juror may not be questioned about anything said by the grand juror or how the grand juror has voted except to the extent it relates to perjury by the grand juror to the grand jury].
[3] All further references to rules are to the California Rules of Court unless otherwise indicated.
[4] Appellant concedes subpart (M) is the only means by which it may obtain access to the sought after information. Penal Code section 921 in part gives the grand jury free access to all public records within the county, but juvenile records are not public. (In re Keisha T., supra, 38 Cal.App.4th at p. 232, 44 Cal. Rptr.2d 822.)
[5] We assume for purposes of this opinion that appellant is correct in its assertion that, regardless of the circumstances and conditions, any subpart (M) disclosure whatsoever to the juvenile court, to the minor, or to any interested party (see In re Keisha T., supra, 38 Cal.App.4th at p. 240, 44 Cal.Rptr.2d 822) of any information about appellant's investigation or its purpose in seeking the juvenile records would violate the rule of grand jury secrecy. (See Daily Journal, supra, 20 Cal.4th at pp. 1124-1125, 86 Cal.Rptr.2d 623, 979 P.2d 982; § 827, subd. (a)(3)(B).) We therefore do not consider whether appellant's stance is in fact correct, nor do we explore any related issue, such as whether means may be available by which to guard against the dissemination of grand jury information, secret or not, presented in support of a subpart (M) petition. (See, e.g., In re Keisha T., supra, 38 Cal.App.4th at pp. 240-241, 44 Cal.Rptr.2d 822; § 827, subd. (a)(4); rule 1423, subd. (c) [in camera proceedings]; rule 1423, subd. (b) [protective orders].)
[6] We note that the United States Supreme Court has been unwilling to allow grand juries to secure records on demand for purposes of federal criminal proceedings if the holder of the records lacks sufficient information about the subject of the investigation. In United States v. R. Enterprises, Inc. (1991) 498 U.S. 292, 300-301, 111 S.Ct. 722, 112 L.Ed.2d 795, the court observed that "a court may be justified in a case where unreasonableness is alleged in requiring the Government to reveal the general subject of the grand jury's investigation before requiring the challenging party to carry its burden of persuasion" that the demand is unreasonable. (Id. at p. 302, 111 S.Ct. 722.)
[7] The parties are separate departments of the same entity and are represented by separate county entities. The costs of the appeal are ultimately coming out of the same financial pot. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322620/ | 609 S.E.2d 231 (2005)
STATE of North Carolina
v.
Danny Lynn SNIDER.
No. COA04-248.
Court of Appeals of North Carolina.
March 1, 2005.
Attorney General Roy Cooper, by Special Deputy Attorney General Ralf F. Haskell, for the State.
Nora Henry Hargrove, Wilmington, attorney for defendant.
*232 TIMMONS-GOODSON, Judge.
Danny Lynn Snider ("defendant") appeals his conviction of first-degree murder. For the reasons stated herein, we find no error in the trial.
The facts of this case are summarized as follows: On 7 July 2001, defendant attended a cook-out with his girlfriend, Lisa Cersosimo ("Cersosimo"), and their son, William. At the cook-out, defendant socialized with his neighbor, Steve Seagle ("Seagle"). As defendant, Cersosimo and William left the event, Seagle requested a ride home. Defendant and Cersosimo agreed to take Seagle home. Seagle rode in the back seat of the car with William and Seagle's twin nephews, Roger and Dale, who were invited to spend the night with William.
During the drive home, Seagle pressed his fingernails into William's knee and called William a "p*ssy." When the group arrived at the house shared by defendant and Cersosimo, Seagle pulled one of the twins from the car by his arm and threw him to the ground. As a result of Seagle's actions, defendant argued with Seagle and a physical fight ensued whereby both men sustained knife wounds. Cersosimo and the children went into the house, and Cersosimo called the police. A short while later, defendant came into the house, retrieved a rifle from the bedroom closet, returned outside and shot Seagle in the chest. Seagle died as a result of a single gunshot wound.
Defendant was arrested and charged with first-degree murder. He was tried before a jury, which convicted him of the charge. The trial court sentenced defendant to life imprisonment without parole. It is from this conviction that defendant appeals.
As an initial matter, we note that defendant's brief contains arguments supporting only four of the original seventeen assignments of error on appeal. The omitted assignments of error are deemed abandoned pursuant to N.C.R.App. P. 28(b)(6) (2004). We therefore limit our review to the assignments *233 of error addressed in defendant's brief.
The issues presented on appeal are whether (I) the trial court erred by denying defendant's requested jury instruction; (II) the trial court erred by overruling defendant's objection to the State's closing argument; (III) the trial court erred by admitting Seagle's autopsy photographs into evidence; and (IV) the short-form first-degree murder indictment was constitutionally defective.
Defendant first argues that the trial court erred by denying defendant's request to instruct the jury on the felled victim theory of premeditation and deliberation. We disagree.
During the charge conference, defendant requested that the trial court include the phrase "infliction of lethal blows after Steve Seagle was felled" in its jury instruction on the circumstances from which premeditation and deliberation could be inferred. The trial court refused to provide the requested instruction and instructed the jury in pertinent part as follows:
Neither premeditation nor deliberation is usually susceptible to direct proof. They may be proved by circumstances from which they may be inferred, such as the lack of provocation by Steve Seagle, conduct of the defendant before, during, and after the killing, threats and declarations of the defendant, use of grossly excessive force, brutal or vicious nature brutal or vicious circumstances of the killing, manner in which or means by which the killing was done, and ill will between the parties.
"The trial court is required to instruct the jury on all substantial features of a case." State v. Elliott, 344 N.C. 242, 273, 475 S.E.2d 202, 215 (1996) (citing State v. Rose, 323 N.C. 455, 458, 373 S.E.2d 426, 428 (1988)). The trial court should honor a defendant's request for a jury instruction only if the instruction is supported by the evidence and is a correct statement of the law. See State v. Sams, 148 N.C.App. 141, 146, 557 S.E.2d 638, 642 (2001) (citing State v. Rogers, 121 N.C.App. 273, 281, 465 S.E.2d 77, 82 (1996)).
To prove first-degree murder, the State must provide evidence of a "willful, deliberate, and premeditated killing." N.C. Gen.Stat. § 14-17 (2003).
[P]remeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.
State v. Davis, 349 N.C. 1, 33, 506 S.E.2d 455, 472 (1998) (citations omitted).
"[T]he premise of the `felled victim' theory of premeditation and deliberation is that when numerous wounds are inflicted, the defendant has the opportunity to premeditate and deliberate from one shot to the next." State v. Austin, 320 N.C. 276, 295, 357 S.E.2d 641, 653 (1987). The felled victim theory is typically advanced by the State in first-degree murder cases where the defendant is accused of inflicting multiple lethal wounds on the victim. See State v. Leazer, 353 N.C. 234, 539 S.E.2d 922 (2000); State v. Truesdale, 340 N.C. 229, 456 S.E.2d 299 (1995); State v. Watson, 338 N.C. 168, 449 S.E.2d 694 (1994); State v. Brogden, 329 N.C. 534, 407 S.E.2d 158 (1991); State v. Austin, 320 N.C. 276, 357 S.E.2d 641 (1987); State v. Sims, 161 N.C.App. 183, 588 S.E.2d 55 (2003). In such cases, the State argues that premeditation and deliberation may be inferred by "`the dealing of lethal blows after the deceased has been felled and rendered helpless,'" and "`the nature and number of the victim's wounds.'" State v. Keel, 337 N.C. 469, 489, 447 S.E.2d 748, 759 (1994) (quoting State v. Gladden, 315 N.C. 398, 431, 340 S.E.2d 673, 693 (1986)).
In the present case, defendant argues that "if the presence of [multiple lethal wounds] evidences premeditation and deliberation, then the absence of such [wounds] negates premeditation and deliberation." We conclude that the absence of multiple lethal wounds does not negate the elements of premeditation *234 and deliberation in this case because the State established the elements of premeditation and deliberation by evidence other than the number of shots fired. The State presented evidence that defendant walked away from the argument with Snider, entered the house, retrieved the firearm from a bedroom closet, exited the house, and shot Snider. This evidence tends to show that defendant formed the intent to shoot Snider at some point between the time he left the argument and the time of the actual shooting. Because the evidence tends to show that defendant's actions were deliberate and premeditated, we conclude that the trial court did not err by denying defendant's request to have the jury consider the lack of lethal blows after the killing as a factor in assessing premeditation and deliberation.
Defendant also argues that the trial court erred by overruling defendant's objection to the State's closing argument. We disagree.
Where a defendant timely objects to a prosecutor's closing argument, this Court must determine "whether the trial court abused its discretion by failing to sustain the objection." State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002) (citing State v. Huffstetler, 312 N.C. 92, 111, 322 S.E.2d 110, 122 (1984)). A prosecutor's argument is proper where it is consistent with the record and does not espouse conjecture or personal opinion. Counsel may argue to the jury the law, the facts in evidence, and all reasonable inferences drawn therefrom. State v. Alston, 341 N.C. 198, 239, 461 S.E.2d 687, 709 (1995). "When determining whether the prosecutor's remarks are grossly improper, the remarks must be viewed in context and in light of the overall factual circumstances to which they refer." State v. Womble, 343 N.C. 667, 692-93, 473 S.E.2d 291, 306 (1996) (citing Alston, 341 N.C. at 239, 461 S.E.2d at 709).
In the present case, defense counsel made the following pertinent remarks in his closing argument:
Sometimes silence speaks volumes. And I would contend to you in this case that's very true.... The State never called these twins [Roger and Dale] to the witness stand to say that what these folks claimed didn't happen.
....
I contend to you that the absence of evidence is very important here. And the absence of the twins is important.
The State, in its closing argument, rebutted defense counsel's remarks as follows:
And then, finally, Mr. Shuford said, Now, silence is important. And the fact that they didn't bring the two twins in here, you should take account of that, and you can if you want to, but don't forget ... there was nothing to prevent him from subpoenaing the parents to bring those kids in here and have a chance to see a four-year-old kid testify in front of a jury.
It is to the aforementioned statements that defendant objected.
We conclude that the State's closing argument is consistent with the record and does not espouse conjecture or personal opinion. The State's remarks are appropriate to rebut defense counsel's remarks about the fact that the State did not call Roger and Dale as witnesses. Furthermore, the State's argument addresses a reasonable inference from defendant's strategy, i.e., defendant's failure to present additional witnesses to testify about the events leading up to the shooting. Thus, we hold that the trial court did not abuse its discretion in overruling defendant's objection.
Defendant also argues that the trial court erred by admitting autopsy photographs of Seagle into evidence. Defendant asserts that the inflammatory nature of the photographs outweighs their probative value. We disagree.
Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." N.C. Gen.Stat. § 8C-1, Rule 403 (2003). The decision to admit photographic evidence "lies within the sound discretion of the trial court, and the trial court's ruling should not be overturned on appeal unless the ruling [is] manifestly unsupported by reason or [] so arbitrary that it could not have been the result of a reasoned decision." *235 State v. Goode, 350 N.C. 247, 258, 512 S.E.2d 414, 421 (1999) (citing State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)). Our appellate courts continue to recognize "the long-standing rule that photographs of a murder victim, though gory or gruesome, may be introduced for illustrative purposes so long as they are not used in an excessive or repetitious manner aimed exclusively at arousing the passions of the jury." State v. Call, 349 N.C. 382, 414, 508 S.E.2d 496, 516 (1998) (citing Hennis, 323 N.C. at 283, 372 S.E.2d at 526).
In the instant case, the trial court admitted three autopsy photographs into evidence to illustrate the testimony of Dr. Patrick Lantz, Forsyth County Medical Examiner. In the first photograph, Seagle's left arm is raised to reveal two lacerations on the left side of Seagle's torso and a laceration on his chest. The second photograph shows a surgical incision on the right side of Seagle's torso. The third photograph shows the same surgical incision on the right side of Seagle's torso and a second surgical incision on Seagle's right shoulder. Dr. Lantz testified that Seagle suffered a knife wound on his right shoulder, a knife wound on the left side of his torso, and a gunshot wound to his chest, the latter of which was the cause of Seagle's death. The trial court allowed the State to publish two autopsy photographs to the jury by projecting them onto a screen in the courtroom, noting "with these small photographs, it certainly would be helpful to enlarge [them]."
We hold that the trial court's ruling admitting the enlarged photographs that were projected onto a screen was proper for the purpose of illustrating the extent of Seagle's wounds. Thus, the probative value of the photographs outweighs any potential unfair prejudice due to the nature of the photographs. The photographs were not used in a repetitive manner and it was not excessive to project them onto a screen for the purpose of making them more easily viewed. We conclude that the trial court did not abuse its discretion by admitting the enlarged photographs that were projected onto a screen.
Defendant also argues that the short-form first-degree murder indictment was constitutionally defective. We disagree.
Our Supreme Court has consistently held that short-form murder indictments are constitutionally sound. State v. Hunt, 357 N.C. 257, 278, 582 S.E.2d 593, 607, cert. denied, 539 U.S. 985, 124 S.Ct. 44, 156 L.Ed.2d 702, petition denied, 539 U.S. 985, 124 S.Ct. 44, 156 L.Ed.2d 702 (2003); see also State v. Wallace, 351 N.C. 481, 504-05, 528 S.E.2d 326, 341 (2000) (upholding short-form indictment for murder). Accordingly, we overrule this assignment of error as it is without merit.
NO ERROR.
Judges TYSON and GEER concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322641/ | IAN VIGUS and LEAH MOORE VIGUS, Plaintiffs,
v.
MILTON A. LATTA & SONS DAIRY FARMS, INC., a North Carolina Corporation; WILLIAM LATTA, in his official capacity as President, and in his individual capacity; TATE LATTA, in his official and individual capacity; JOLLY BUILDERS, INC., d/b/a AMERICA'S HOME CHECKERS; HAROLD JOLLY, in his capacity as owner-agent for America's Home Checkers, and in his individual capacity; KELLER WILLIAMS REALTY, A North Carolina Corporation; ROBYN MARSHALL, agent for Keller Williams Realty, and in her individual capacity; THE FORD PERRY TEAM; ORANGE REALTY, a North Carolina Corporation; BONNIE GATES, agent for Orange Realty, and in her individual capacity; JOE PHELPS, as agent for Orange Realty and Broker in Charge, and in his individual capacity, Defendants.
No. COA08-700.
Court of Appeals of North Carolina.
Filed May 19, 2009.
This case not for publication
Hairston Lane Brannon, PA, by Anthony M. Brannon, for plaintiff-appellants.
Cheshire & Parker, by D. Michael Parker, for defendant-appellees Milton A. Latta & Sons Dairy Farms, Inc., William Latta, and Tate Latta. Cranfill Sumner & Hartzog LLP, by Daniel G. Katzenbach and Andrew D. Hathaway, for defendant-appellees Jolly Builders, Inc., d/b/a America's Home Checkers, Harold Holly, and Kelly Jolly.
Teague, Campbell, Dennis & Gorham, L.L.P., by Christopher G. Lewis, for defendant-appellees Keller Williams Realty and Robyn Marshall.
Manning Fulton & Skinner P.A., by William C. Smith, Jr., for defendant-appellees Orange Realty, Bonnie Gates, and Joe Phelps.
ROBERT C. HUNTER, Judge.
This case arises out of the sale of a house in Hillsborough, North Carolina, which Ian and Leah Vigus ("Mr. Vigus," "Mrs. Vigus," or collectively "plaintiffs") purchased unseen. After discovering extensive structural damage resulting from termite infestation, plaintiffs filed suit against, inter alia, their real estate agent and her employer, the listing real estate agent and his employer, the sellers of the house, and the home inspector. Summary judgment was granted in favor of the home inspector. The case proceeded to trial against the remaining defendants. After the close of plaintiffs' evidence, the trial court granted motions for directed verdict as to all claims against the multiple defendants.
Plaintiffs now appeal from: 1) the grant of defendants' Motions for Directed Verdict; 2) the denial of plaintiffs' Motion to Reconsider and Motion for New Trial; and 3) the grant of summary judgment for defendant Jolly Builders, Inc., d/b/a America's Home Checkers, and Harold and Kelly Jolly. After careful review, we affirm.
Background
On 22 April 2004, plaintiffs entered into an "Exclusive Right to Represent Buyer-Buyer Agency Agreement" ("Buyers Agreement") with Ms. Robyn Marshall ("Marshall"), a real estate agent employed by Keller Williams Realty ("Keller Williams"). Plaintiffs specifically contracted with Marshall because she was a buyer's agent who would solely represent their interests in any real estate transaction.
Plaintiffs were residing in England at the time, but wished to purchase a home in or around Hillsborough, North Carolina. Mrs. Vigus was pregnant and restricted from traveling by her doctor and Mr. Vigus was not permitted to travel to the United States as he was awaiting approval of his immigration visa. Plaintiffs communicated with Marshall via telephone, facsimile, or mail courier.
Plaintiffs became interested in a house located at 2012 Phelps Road, Hillsborough, North Carolina. The house was listed on the Triangle Multiple Listing Service ("TMLS") by defendant Joe Phelps ("Phelps"), an employee of defendant Orange Realty. Defendants Milton A. Latta & Sons Dairy Farms Inc., William Latta and Tate Latta (collectively "the Lattas") owned the listed property.[1] According to the TMLS data, the house was listed for $225,000 and described as an "[o]ld [f]armhouse," with vinyl siding, built in 1940 and remodeled in the early 1980's. Several of plaintiffs' friends visited the house and took photographs of the exterior, but did not go inside, and reported to plaintiffs that the house "'looked great'".
Upon expressing further interest in the property, plaintiffs received a "State of North Carolina Residential Property Disclosure Statement" in which the Lattas made no representations with regard to each query, except when asked if there had been any room additions or structural changes. The Lattas acknowledged that the "[h]ouse was remodeld [sic] in 1981 or 1982." Mr. Latta testified that he asked Marshall why no representations were made, and Marshall explained that because the house had been used as a rental property, the sellers may not know the "history of the property." According to the text of the Disclosure Statement, the seller is informed, "[i]f you check `No Representation,' you have no duty to disclose the conditions or characteristics of the property, even if you should have known of them."
On 22 April 2004, plaintiffs signed an Offer to Purchase and Contract for the Property in the amount of $220,000. The Offer to Purchase contained the following language:
Wood-Destroying Insects: Unless otherwise stated herein, Buyer shall have the option of obtaining, at Buyer's expense, a report from a licensed pest control operator . . . . The Buyer is advised that the inspection report described in this paragraph may not always reveal either structural damage or damage caused by agents or organisms other than wood-destroying insects.
(Alteration in original.) On 23 April 2004, the contract was accepted by the Lattas. On 30 April 2004, an Additional Provisions Addendum was attached to the contract, which included a "Cost of Repair Contingency" that allowed plaintiffs to terminate the contract if a reasonable estimate of repairs to the property exceeded $1,500.
On 12 May 2004, defendant America's Home Checkers ("Home Checkers") performed an official inspection of the property at plaintiffs' request and issued a report. The report stated that Home Checkers was unable to enter the crawl space under the house, but noted that there were uneven floors throughout the house, as well as other needed repairs. The report indicated that there was "[e]vidence of past pest infestation in attic. Evaluation needed by qualified pest inspector." Mr. Vigus testified that Marshall said "'[e]verything looks fine'" and did not recommend an additional home inspection.
A termite inspection was ordered by Marshall, on behalf of plaintiffs, and the inspector noted in his report that there were "visible signs of termites in front porch, on pillars and whole house."[2] The Official North Carolina Wood-Destroying Insect Information Report admittedly reviewed by plaintiffs stated:
If there is evidence of a previous or an active infestation of subterranean termites and/or other wood-destroying insects in the wooden members, it must be assumed that there is some damage to the wooden members caused by this infestation, no matter how slight. If this is the case, the structural integrity of this property should be evaluated by a qualified building expert.
Mr. Vigus asserted that he and his wife read every report that was sent to them by Marshall, though not always the "small print," and spoke with her often. Mr. Vigus claimed that their telephone bill was approximately $2,000 a month due to his frequent conversations with Marshall. Plaintiffs testified that they individually had conversations with Marshall regarding the termite report and that she told them a termite treatment was needed, but that once the termites were eliminated, there would be no further problems. Marshall then ordered the termite treatment, but according to plaintiffs, Marshall did not advise them to have a qualified building expert assess any resulting damage from the termite infestation. Plaintiffs did not have any other inspections performed prior to purchase.
Plaintiffs were not present for the real estate closing on 21 June 2004 as they were still not able to travel to the United States. Mrs. Vigus moved to the United States on or about 14 July 2004 with her two-month-old son. Soon thereafter, as she was moving her belongings into the house, Mrs. Vigus began to notice "soft spots" and unevenness in the flooring. Mr. Vigus obtained his visa and moved to the United States on or about 22 October 2004. Mr. Vigus then began to uncover the massive extent of the termite damage, which had significantly undermined the structural integrity of the home. Mr. Vigus testified that the dirty carpet attached to a tack strip was the only thing preventing someone from falling through the floor. Mr. Vigus stated that the vinyl sidingwas covering extensive damage to the wood underneath. In many places the "wooden siding, the original siding of the house was becoming disconnected from the decomposed and rotten studs."
David Jones ("Jones"), a home inspector who testified for the plaintiffs, stated that there was severe damage to the floor joists, that the floors were artificially propped up by wood and cinder block, and that the house was likely built "between the mid-1800's and 1920[,]" not 1940 as the TMLS sheet indicated. Jones further testified that the house "had the worst termite damage that [he had] ever seen in 23 years of inspecting houses."
Jeff Nielson, owner of Nielson Construction, testified as to various repair estimates he provided plaintiffs. "The first one, to demo the house and replace the structure, was 250,000. The estimate to complete the renovation from the point of what Ian had already finished was 112,220, and the estimate to complete it plus put a price on what Ian had already done was 159,480." Mr. Vigus testified at trial that, thus far, he had spent approximately $30,000 to $40,000 on materials alone.
On 5 January 2006, plaintiffs filed a complaint against: 1) the Lattas for intentional misrepresentation and intentional concealment, negligent misrepresentation in the alternative, breach of the implied warranty of habitability, and punitive damages; 2) Phelps, Orange Realty, and Bonnie Gates for intentional misrepresentation and intentional concealment, negligent misrepresentation in the alternative, negligence, unfair and deceptive trade practices, and punitive damages; 3) Marshall, Keller Williams Realty, and the Ford Perry Team for intentional misrepresentation, negligent misrepresentation in the alternative, negligence, breach of contract, unfair and deceptive trade practices, and punitive damages; and 4) Home Checkers for negligence, breach of contract, unfair and deceptive trade practices, and punitive damages.
After discovery was complete, all defendants moved for summary judgment. A hearing was held on 16 October 2006. By stipulation, the claims against the Ford Perry Team were dismissed as was the claim for breach of implied warranty of habitability against the Lattas. On 13 December 2006, in two separate orders, the trial court granted summary judgment as to all claims in favor of defendants Home Checkers, Harold Jolly and Kelly Jolly, Orange Realty, and Bonnie Gates. On 10 January 2007, the trial court granted partial summary judgment for Robyn Marshall and Keller Williams.
At trial, plaintiffs' remaining claims included those against: 1) the Lattas for intentional misrepresentation and intentional concealment, negligent misrepresentation in the alternative, and punitive damages; 2) Phelps for intentional misrepresentation and intentional concealment, negligent misrepresentation in the alternative, unfair and deceptive trade practices, and punitive damages; and 3) Marshall and Keller Williams Realty for negligent misrepresentation.
Trial began on 12 March 2007. Plaintiffs presented six witnesses and thirty-six exhibits. Plaintiffs did not call any of the defendants to testify. After the close of plaintiffs' case in chief, defendants moved for a directed verdict on all claims. On 16 March 2007, in open court, the trial judge granted all of defendants' motions for directed verdict. On 26 March 2007, judgment was entered dismissing all claims against Joe Phelps. On 30 March 2007, two judgments were entered dismissing all claims against: 1) Milton A. Latta & Sons Dairy Farms, Inc., William and Tate Latta in their official and individual capacities; and 2) Robyn Marshall and Keller Williams. Plaintiffs filed a Motion to Reconsider and Motion for a New Trial on 17 April 2007, which was denied without a hearing on 1 May 2007. Plaintiffs filed a notice of appeal on 29 May 2007.
Analysis
I. Home Checkers, Harold and Kelly Jolly
Plaintiffs argue that the trial court erred by granting summary judgment for defendant Home Checkers because there were genuine issues of material fact in dispute with regard to two claims.
First, plaintiffs argue that the trial court erred in granting summary judgment for Home Checkers with regard to the claim of negligence. Plaintiffs allege that Home Checkers was negligent in performing its contractual duty to inspect the home as evidenced by the extensive damage that was not discovered upon inspection. There are two key components to this claim: 1) that Home Checkers was negligent because it failed to uncover the extent of the damage to the house; and 2) that Home Checkers did not inspect the crawlspace, an area where there was a significant amount of termite damage.
Secondly, plaintiffs contend that the trial court erred in dismissing its breach of contract claim against Home Checkers. As plaintiffs only address negligence and breach of contract in their brief, all other claims are abandoned. N.C.R. App. P. 28(a), (b)(6).
A. Standard of Review-Summary Judgment
A party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007). A grant of summary judgment is reviewed de novo by this Court. Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999). On appeal, this Court must determine: "'(1) whether there is a genuine issue of material fact and (2) whether the movant is entitled to judgment as a matter of law.'" McCoy v. Coker, 174 N.C. App. 311, 313, 620 S.E.2d 691, 693 (2005) (quoting NationsBank of N.C. v. Parker, 140 N.C. App. 106, 109, 535 S.E.2d 597, 599 (2000)).
A genuine issue of material fact depends on whether the claim is supported by substantial evidence. Eason v. Union Cty., 160 N.C. App. 388, 391, 585 S.E.2d 452, 455 (2003) "'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quotingThompson v. Wake County Bd. of Educ., 292 N.C. 406, 414, 233 S.E.2d 538, 544 (1977)). All inferences of fact are made in favor of the nonmoving party. McCoy, 174 N.C. App. at 313, 620 S.E.2d at 693.
B. Negligence
Robyn Marshall, on behalf of plaintiffs, signed a contract with Home Checkers on 12 May 2004 for inspection services. Plaintiffs claim that Home Checkers negligently performed this contract. It has been recognized in this State that when a plaintiff seeks only economic damages arising out of a contractual relationship with a defendant, only the law of contracts governs the claim, not the law of torts. Ports Authority v. Roofing Co., 294 N.C. 73, 81, 240 S.E.2d 345, 350 (1978), rejected on other grounds by Trustees of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 328 S.E.2d 274 (1985). Our Supreme Court in Ports Authority recognized exceptions to that general rule, but further stated: "our research has brought to our attention no case in which this Court has held a tort action lies against a promisor for his simple failure to perform his contract, even though such failure was due to negligence or lack of skill." Id. at 83, 240 S.E.2d at 351. None of the four enumerated exceptions found in Ports Authority apply to this case, and while Ports Authority indicated that the exceptions listed may not be exclusive, our Courts have not found further exceptions subsequent to the economic loss doctrine that was promulgated in that case.
Accordingly, the trial court did not err in granting summary judgment for Home Checkers with regard to this negligence claim as plaintiffs were seeking economic damages arising out of a breach of contract.[3]
C. Breach of Contract
"A contract that is plain and unambiguous on its face will be interpreted by the court as a matter of law." Dysart v. Cummings, 181 N.C. App. 641, 647, 640 S.E.2d 832, 836 (2007).
Plaintiffs did not allege in their complaint that a particular provision in the contract between plaintiffs and Home Checkers was breached.[4] Indeed, the crux of plaintiffs' argument is that Home Checkers inspected the property but did not uncover the extent of the termite damage; therefore, Home Checkers breached its duty to thoroughly inspect the property.
Upon review, the contract clearly states that plaintiffs requested a "limited visual inspection" of the structure. In signing the contract, plaintiffs "agree[d] to assume all risk for all conditions which are concealed from view at the time of the inspection." Furthermore, "[t]ermites, pests, or other wood destroying organisms" were outside the scope of the inspection according to the contract.
In reviewing the record as presented to the trial court at the time of the hearing on the summary judgment motion, we find that plaintiffs did not forecast sufficient evidence to support their breach of contract claim. Home Checkers noted multiple problems with the property in the inspection report, including the sagging floors, and stated that the issues warranted additional attention/repair or that they should be evaluated by a licensed contractor. Based on a "limited visual inspection," Home Checkers was not required to lift up the carpeting, pull off the vinyl siding, or cut out portions of the sheet rock to view behind the walls. In fact, the contract excludes inspection for pests, but Home Checkers still noted evidence of pest infestation in the attic, putting plaintiffs on notice of a potential pest problem.
With regard to the crawl space, Kelly Jolly stated the following in a sworn affidavit:
7. During the inspection I viewed the crawlspace from the opening and saw large amounts of hanging insulation throughout the crawlspace area that was visible from the crawlspace opening. As a result, I did not feel that it was safe for me to enter and inspect the crawlspace because of the possibility of electrical wiring which could be loose or hanging but obscured from view by the hanging insulation. I have seen dangerous electrical conditions in crawlspaces on previous inspections, and unless I can clearly see if there are any such conditions in a crawlspace I do not believe it is safe enough for me to enter a crawlspace.
. . . .
9. On page 6 of our inspection report I marked the box indicating that the crawlspace was viewed from the access opening only, and I wrote under the "Comments" section that the inspection of the crawlspace was limited to an external view only and that no inspection could be made of framing, plumbing, electrical or HVAC components. Additionally, next to the box indicating that the crawlspace was viewed from the access opening only, there is a *, which corresponds to a key at the top of the page. The key states that a * "Signifies items that warrant attention/repair."
In its motion for summary judgment, Home Checkers provided the trial court with Section .1100 of the North Carolina Home Inspector Standards of Practice and Code of Ethics, which contains a provision stating that a home inspector is not required to enter an area that may be dangerous to him or her. Plaintiffs point to the inspection report of David Jones, issued on 8 November 2004 after plaintiffs had moved in, as evidence that the crawl space was accessible. Jones stated in his report:
Most of the crawl space below the first floor of the house was accessible, but areas below the right rear corner of the living room, the rear third of the center hall and stairwell, and the rear of the left room could not be accessed because rigid metal ductwork blocked access. Some other areas were difficult to access because of fallen insulation, but were accessible.
The fact that Jones was able to enter the crawl space on 8 November 2004 does not provide evidence that Home Checkers breached any provision of its contract when it claimed that it could not safely access that area of the house on 12 May 2004.[5]
In sum, plaintiffs are unable to point to a provision of the contract that was breached and rely solely on the fact that there was damage to the property not discovered by Home Checkers. Because plaintiffs failed to provide a sufficient forecast of evidence in support of their breach of contract claim, the trial court did not err in granting summary judgment for Home Checkers.
II. The Lattas
A. Standard of Review Directed Verdict
"This Court reviews a trial court's grant of a motion for directed verdict de novo." Herring v. Food Lion, LLC, 175 N.C. App. 22, 26, 623 S.E.2d 281, 284 (2005). "The standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury." Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991). "If there is more than a scintilla of evidence supporting each element of the nonmovant's case, the motion for directed verdict should be denied." Snead v. Holloman, 101 N.C. App. 462, 464, 400 S.E.2d 91, 92 (1991). "The reviewing court does not weigh the evidence or assess credibility, but takes petitioners' evidence as true, resolving any doubt in their favor." Jones v. Robbins, ___ N.C. App. ___, ___, 660 S.E.2d 118, 120, disc. review denied, 362 N.C. 472, 666 S.E.2d 120 (2008).
Plaintiffs argue that the trial court erred in granting the Lattas' motion for directed verdict with regard to the claims against them for intentional misrepresentation, intentional concealment, negligent misrepresentation as pled in the alternative, and punitive damages because plaintiffs presented sufficient evidence at trial as to these claims. We will now review the grant of directed verdict as to each claim presented at trial.
B. Fraud Based on Intentional Misrepresentation
Plaintiffs claimed at trial that the Lattas fraudulently misrepresented the extensive termite damage. Our Supreme Court has defined fraud as:
(1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party.
Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974). "Additionally, plaintiff's reliance on any misrepresentations must be reasonable." RD&J Props. v. Lauralea-Dilton Enters., LLC, 165 N.C. App. 737, 744, 600 S.E.2d 492, 498 (2004). Plaintiffs must establish evidence of each element of the claim in order to survive a motion for directed verdict. Snead, 101 N.C. App. at 464, 400 S.E.2d at 92.
Pertaining to the claim for intentional misrepresentation in this case, the two threshold questions to consider are whether plaintiffs' evidence was sufficient to show that the Lattas in fact made an intentional misrepresentation, and if so, whether plaintiffs reasonably relied on the misrepresentation.
i. Evidence of Intentional Misrepresentation
To qualify as an intentional misrepresentation for purposes of a fraud claim, the misrepresentation must be "definite and specific." Libby Hill Seafood Restaurants, Inc. v. Owens, 62 N.C. App. 695, 698, 303 S.E.2d 565, 568, disc. review denied, 309 N.C. 321, 307 S.E.2d 164 (1983). Plaintiffs allege that the Lattas 1) placed vinyl siding over rotten wood; 2) propped up the floor with wooden devices and cinder blocks to disguise the true condition of the sagging floors; and 3) the TMLS data sheet misrepresented the age of the home and renovations supposedly made in the 1980's. Plaintiffs claim that these actions amounted to intentional misrepresentations. However, plaintiffs failed to present sufficient evidence at trial as to these claims.
The testimony and exhibits presented at trial tended to show that the Lattas answered "no representation" to almost every query on the Residential Property Disclosure Form, including whether there was a present infestation of termites or damage due to a past infestation, and they made no verbal assertions to the plaintiffs, either personally or through their agent, regarding termites in the home. Plaintiffs did not ask the Lattas if they were aware of any current infestation or any damage to the house due to termites.
The fact that the Lattas chose to place vinyl siding on the house and prop up the floors is not a definite and specific assertion that there were no termites in the home or resulting damage from an infestation. Even if the Lattas were attempting to conceal damage through use of the vinyl siding, plaintiffs presented no evidence of such scienter at trial. With regard to the crawl space, the Lattas did not bar entrance to that area and the props were clearly visible upon inspection, as testified to by plaintiffs' expert, David Jones. Finally, plaintiffs assert that the Lattas misrepresented the age of the home on the TMLS sheet and that they were mislead by the claim that the house had been renovated in the 1980's, as this statement indicated that the house was habitable and cared for. In fact, the TMLS sheet clearly stated that the "Information deemed RELIABLE but not GUARANTEED." Moreover, the Lattas checked "no representation" with regard to the age of the structure on the Residential Property Disclosure Statement. Mr. Vigus testified that he sought clarification of what the remodel entailed and was informed by Marshall that "the old log cabin or structure on the back of the house had been taken down at that time and a kitchen and dining room added and that's when the total remodel of the house took place." There was no evidence presented that this "remodel" did not actually occur. Most importantly, the age of the house and the remodel does not relate to plaintiffs' damages, which resulted from termite infestation.
Absent some evidence that the Lattas intentionally misrepresented material facts, specifically regarding termites or termite damage, an action for fraud cannot be supported.
ii. Reasonable Reliance by Plaintiffs
Assuming, arguendo, that the Lattas misrepresented the condition of the house, "when the seller of property makes affirmative misrepresentations, the failure of the purchaser to make diligent inquiries when he has notice of a problem precludes a recovery for fraud." Robertson v. Boyd, 88 N.C. App. 437, 443, 363 S.E.2d 672, 676 (1988). Therefore, even if the Lattas made misrepresentations, reasonable reliance on the misrepresentations must still exist to bring an action in fraud.
"With respect to the purchase of property, `[r]eliance is not reasonable if a plaintiff fails to make any independent investigation' unless the plaintiff can demonstrate: (1) `it was denied the opportunity to investigate the property,' (2) it `could not discover the truth about the property's condition by exercise of reasonable diligence,' or (3) `it was induced to forego additional investigation by the defendant's misrepresentations.'"
MacFadden v. Louf, 182 N.C. App. 745, 747-48, 643 S.E.2d 432, 434 (2007) (quoting RD&J Props., 165 N.C. App. at 746, 600 S.E.2d at 499). "'The reasonableness of a party's reliance is a question for the jury, unless the facts are so clear that they support only one conclusion.'" Willen v. Hewson, 174 N.C. App. 714, 718, 622 S.E.2d 187, 191 (2005) (quoting State Properties, LLC v. Ray, 155 N.C. App. 65, 73, 574 S.E.2d 180, 186 (2002)), disc. review denied, 360 N.C. 491, 631 S.E.2d 520 (2006). This requirement that plaintiff undergo independent investigation comports with the policy of the courts in this State, which is, "'on the one hand, to suppress fraud and, on the other, not to encourage negligence and inattention to one's own interest.'" Libby Hill Seafood, 62 N.C. App. at 700, 303 S.E.2d at 569 (quoting Calloway v. Wyatt, 246 N.C. 129, 134-35, 97 S.E.2d 881, 886 (1957)). Because plaintiffs in this case failed to make any independent inquiry into the structural integrity of the property after receiving notice of potential problems, we must find that any reliance upon purported misrepresentations by the Lattas was not reasonable. In the case at bar, the following facts support defendants' contention that plaintiff failed to show reasonable reliance on any alleged misrepresentations by the Lattas: 1) the termite inspector found termites throughout the house; 2) the crawl space had not been examined; 3) the home inspector noted the existence of a "pest" infestation in the attic[6]; 4) the home inspector found uneven floors throughout the house; 5) no representations had been made as to termite damage on the disclosure form; 6) the Official North Carolina Wood-Destroying Insect Information Report placed plaintiffs on notice that potential structural defects may exist due to termite infestation; and 7) had plaintiffs sought the advice of a qualified building expert, it is likely that he/she would have discovered the extensive damage to the house. All of these facts were revealed through plaintiffs' own evidence at trial and demonstrate unreasonable reliance on the part of plaintiffs.
In addition, neither the Lattas nor Phelps made any assurances as to the condition of the property, and plaintiffs were not discouraged from further investigation by the Lattas, who acquiesced to every request to inspect made by plaintiffs. Upon her first visit to the home, Mrs. Vigus realized that the floors were unstable. Though plaintiffs repeatedly assert that they were in England during the entire process, the fact that plaintiffs could not observe or supervise the inspections, or even view the property, does not excuse any lack of due diligence upon receiving notice that there were potential structural defects, as intimated by the termite inspection report and the general home inspection report.
The case of Robertson v. Boyd is analogous in many respects to the present case. There, the plaintiffs claimed that the defendant sellers, the defendant listing agent, and the defendant termite inspector knew of termite damage under the home and "'collectively and/or individually engaged in an effort to keep the Plaintiffs from discovering [the termite damage].'" Robertson, 88 N.C. App. at 442, 363 S.E.2d at 675-76. The Court granted defendants' 12(b)(6) motions to dismiss in part because the "plaintiffs' complaint allege[d] facts which show[ed] that they had notice of possible termite damage and failed to investigate." Id., 363 S.E.2d at 676. The Boyd Court noted that the termite report received by the plaintiffs stated that parts of the house were inaccessible, that there was some termite damage seen in the front of the house, and that the observed damage should be "evaluated by a qualified building expert." Id. Because the plaintiffs in Boyd had notice of potential termite damage, they could not reasonably rely on affirmative misrepresentations by the defendants. Id. The Court held:
In an action with respect to realty . . . the purchaser can recover only if he has been fraudulently induced to forego inquiries which he otherwise would have made. An action in fraud will not lie where the purchaser has full opportunity to make inquiries but neglects to do so through no artifice or inducement of the seller.
Id., 363 S.E.2d at 675 (citing Libby Hill Seafood, 62 N.C. App. at 698, 303 S.E.2d at 568). In this case, plaintiffs were on notice that there were termites present in the "whole house" but failed to inquire further through no artifice of the Lattas.
In sum, we find that plaintiffs failed to provide a scintilla of evidence that the Lattas intentionally misrepresented the condition of the house or the extent of the termite infestation, and plaintiffs' failure to further inspect upon notice of potential defects signifies an absence of reasonable reliance on any purported misrepresentations. Accordingly, the intentional misrepresentation claim should not have been presented to the jury and we find no error in the trial court's grant of directed verdict as to this claim.
C. Fraud Based on Intentional Concealment
Plaintiffs further claim that they provided sufficient evidence that the Lattas failed to disclose the extent of the termite damage, and in fact attempted to conceal it with vinyl siding and floor props. This fraud claim is based upon a breach of the duty to disclose a material fact, as opposed to an affirmative misrepresentation.
This State has long recognized that "[w]here a material defect is known to the seller, and he knows that the buyer is unaware of the defect and that it is not discoverable in the exercise of the buyer's diligent attention or observation, the seller has a duty to disclose the existence of the defect to the buyer." In such cases, suppressio veri (a failure to disclose the truth) is as much fraud as suggestio falsi (an affirmative false representation).
Everts v. Parkinson, 147 N.C. App. 315, 321, 555 S.E.2d 667, 672 (2001) (quoting Carver v. Roberts, 78 N.C. App. 511, 512-13, 337 S.E.2d 126, 128 (1985)).
The facts of this case indicate that the Lattas did not disclose the extensive damage to the house, which was a material defect that they may have been aware of and thus had a duty to disclose if the defects were unknown to the buyer and were not "'discoverable in the exercise of the buyer[s'] diligent attention or observation.'" Id. (quoting Carver, 78 N.C. App. at 512-13, 337 S.E.2d at 128).
While there is no requirement of reasonable reliance in an action for fraud based on the breach of a duty to disclose, the party bringing the claim must still show that he or she exercised due diligence in attempting to discover defects.
This requirement serves the same purpose as the reasonable reliance requirement in other fraud claims: it precludes a claim of fraud where a plaintiff has been negligent or inattentive to his own interests. This is because, if a defect is discoverable in the exercise of a buyer's diligent attention or observation, and the buyer fails to employ diligent attention or observation (and thus fails to discover the defect), a claim for fraud will not stand because in such a situation there is no duty on the part of the seller to disclose the defect.
Id. at 325-26, 555 S.E.2d at 674.
The primary question with regard to this claim is whether plaintiffs could have discovered the defects in the property through due diligence. If plaintiffs failed "to employ diligent attention or observation," then there was "no duty on the part of [the Lattas] to disclose the defect," if in fact they were aware of it. Id. at 326, 555 S.E.2d at 674. For the same reasons that plaintiffs failed to show reasonable reliance at trial, as detailed supra, they also failed to show due diligence in discovering the extent of the damage to the house when they were on notice of the termite infestation.
Plaintiffs contend that Everts supports their claim that the Lattas were liable for failing to disclose a material fact. There, the buyers of a house brought a claim of fraud against the defendant seller for failure to disclose the fact that there was significant water intrusion into the house that resulted from a defective synthetic stucco exterior. Id. at 318, 555 S.E.2d at 670. The Court reversed the trial court's grant of summary judgment for the defendant because it found an intent to deceive on the part of the defendant as evidenced by his attempts to repair rotting brick mold, replace other rotten portions of windows, and apply a "decorative" stucco band around the windows that would not solve the leakage problem. Id. at 321-25, 555 S.E.2d at 672-74. The defendant admitted that he did not disclose any of the damage or repair work completed. Id. at 324, 555 S.E.2d at 674. Plaintiffs obtained a home inspection in which no rot or water infiltration was discovered. Id. at 327, 555 S.E.2d at 675. The inspector filed an affidavit which stated, "the `decorative bands,' which had been installed around the windows before his inspection, `concealed the joint where the synthetic stucco met the window brick molding,' and that, as a result, he `was not able to visually observe the perimeter joints of the exterior windows.'" Id. As a result of finding that defendant may have attempted to deceive the buyers, and that the inspector did not find any indication of the underlying problem potentially due to the defendant's "repairs," the Court held, "[v]iewing the evidence in the light most favorable to plaintiffs, we believe there are genuine issues of material fact as to whether the alleged defects were discoverable in the exercise of plaintiffs' diligent attention or observation and, therefore, whether [the defendant] had a duty to disclose the defects." Id.
Unlike in Everts, plaintiffs' own evidence in the case sub judice established that they were aware of the potential defects in the house that the entire house they were buying unseen was infested with termites, that an additional inspection by a qualified building expert was recommended, that there were uneven floors, and that the crawl space had not been inspected where floor props were readily observable. It is arguable that the vinyl siding covered up a "red flag," but that does not excuse plaintiffs from using due diligence in conducting further inspections in this case, when many other red flags had been discovered.
Accordingly, the trial court did not err in granting the Lattas' motion for directed verdict as to fraud based on intentional concealment.
D. Negligent Misrepresentation
"'The tort of negligent misrepresentation occurs when in the course of a business or other transaction in which an individual has a pecuniary interest, he or she supplies false information for the guidance of others in a business transaction, without exercising reasonable care in obtaining or communicating the information.'" Id. at 328, 555 S.E.2d at 676 (quoting Fulton v. Vickery, 73 N.C. App. 382, 388, 326 S.E.2d 354, 358, disc. review denied, 313 N.C. 599, 332 S.E.2d 178 (1985)). "Justifiable reliance is an essential element of both fraud and negligent misrepresentation." Helms v. Holland, 124 N.C. App. 629, 635, 478 S.E.2d 513, 517 (1996).
Furthermore, a "directed verdict [is] . . . proper if plaintiffs' evidence establishes their own contributory negligence . . . ." Stanford v. Owens, 76 N.C. App. 284, 287, 332 S.E.2d 730, 732 (1985).
Where a "person having the capacity to exercise ordinary care . . . fails to exercise such care, and such failure, concurring and cooperating with the actionable negligence of defendant contributes to the injury complained of, he is guilty of contributory negligence. Ordinary care is such care as an ordinarily prudent person would exercise under . . . similar circumstances to avoid injury." In North Carolina, a finding of contributory negligence poses a complete bar to a plaintiff's negligence claim.
Swain v. Preston Falls E., L.L.C., 156 N.C. App. 357, 361, 576 S.E.2d 699, 702 (2003) (quoting Clark v. Roberts, 263 N.C. 336, 343, 139 S.E.2d 593, 597 (1965)). Thus, justifiable reliance (an element of negligent misrepresentation) and contributory negligence (a defense to negligent misrepresentation) are closely associated bars to recovery. If a plaintiff's own evidence tends to show that he/she was not justified in relying upon the misrepresentations of a defendant, then he/she is in effect contributorily negligent. See Stanford, 76 N.C. App. at 287, 332 S.E.2d at 732.
Here, there was no evidence presented at trial that the Lattas supplied false information as guidance in a business transaction. As found supra, the data on the TMLS sheet regarding the age of the farm house and the remodeling was not material with regard to termite infestation and damage. The Lattas never represented that there were no termites present in the house or that there was no damage as a result of an infestation.
Assuming, arguendo, that false information was supplied, the element of justifiable reliance bars plaintiffs' claim for negligent misrepresentation. Plaintiffs were made aware by Home Checkers that there were pests in the attic and uneven floors. The termite inspector informed plaintiffs that there were termites in the whole house and that a qualified building expert should evaluate the premises. Plaintiffs failed to further investigate. Thus, the trial court was correct in granting the motion for directed verdict as to this claim.
E. Punitive Damages
The trial court did not err in granting the motion for directed verdict as to punitive damages as there were no remaining claims upon which punitive damages could be awarded against the Lattas.
III. Joe Phelps
At trial, plaintiffs claimed that Phelps, the Lattas' listing agent, committed intentional misrepresentation, intentional concealment, negligent misrepresentation in the alternative, unfair and deceptive trade practices, and that plaintiffs were entitled to punitive damages.
A. Fraud Based on Intentional Misrepresentation
As previously stated, to establish a claim for intentional misrepresentation, plaintiffs were required to provide sufficient evidence at trial that Phelps made an affirmative, knowing or reckless, misrepresentation to plaintiffs regarding a material fact on which plaintiffs justifiably relied to their detriment. Libby Hill Seafood, 62 N.C. App. at 695, 303 S.E.2d at 568. Plaintiffs' claim is without merit.
Plaintiffs never spoke to Phelps, and he never made any affirmative claims to Marshall that the house was structurally sound or free of termites. Plaintiffs cannot show that they ever relied on any affirmative statements by Phelps. He never discouraged any inspections from taking place or disputed the findings of the reports that indicated a termite infestation and possible structural instability.
As with the intentional misrepresentation claim against the Lattas, plaintiffs' reliance on any purported misrepresentations would be unreasonable under the circumstances of this case as they had notice of the problem and failed to further investigate. Goff v. Realty & Insurance Co., 21 N.C. App. 25, 30, 203 S.E.2d 65, 68 (directed verdicts were proper in favor of the defendants' listing agent and seller where listing agent incorrectly informed the plaintiff buyers that there was not a septic tank or drainage problem on the property because the "[d]efendants resorted to no artifice which was calculated to induce plaintiffs to forego investigation"), cert. denied, 285 N.C. 373, 205 S.E.2d 97 (1974). Hence, a directed verdict was properly granted in favor of Phelps with regard to intentional misrepresentation.
B. Fraud Based on Intentional Concealment
The primary question with regard to this claim is whether plaintiffs provided sufficient evidence at trial that Phelps failed to disclose a material fact that he was aware of, which plaintiffs could not discover through the use of due diligence. Everts, 147 N.C. App. at 321, 555 S.E.2d at 672. Since plaintiffs allege that Phelps failed to disclose the same material facts as the Lattas, and we previously concluded that plaintiffs' did not utilize due diligence in the discovery of these facts, it follows that an action for failure to disclose against Phelps cannot lie. Therefore, the trial court properly granted the motion for directed verdict as to this claim.
C. Negligent Misrepresentation
The motion to dismiss with regard to the claim of negligent misrepresentation should not have been granted if plaintiffs provided sufficient evidence that Phelps "'supplie[d] false information for the guidance of others in a business transaction, without exercising reasonable care in obtaining or communicating the information.'" Id. at 328, 555 S.E.2d at 676 (quoting Fulton, 73 N.C. App. at 388, 326 S.E.2d at 358). Plaintiffs must also have shown that they justifiably relied on the false information. Helms, 124 N.C. App. at 635, 478 S.E.2d at 517.
As we previously found, Phelps did not make any affirmative statements as to a material issue in this case. Since he did not supply false information, we must conclude that the directed verdict was properly granted. Assuming, arguendo, that he did supply false information, as we previously determined with regard to the same claim against the Lattas, plaintiffs have not shown justifiable reliance on any such statements by Phelps.
D. Unfair and Deceptive Practices
In North Carolina, "[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful." N.C. Gen. Stat. § 75-1.1(a) (2007).
In order to prevail under this statute plaintiffs must prove: (1) defendant committed an unfair or deceptive act or practice, (2) that the action in question was in or affecting commerce, (3) that said act proximately caused actual injury to plaintiff. Plaintiffs do not have to prove fraud, bad faith, or intentional deception, but proof of fraud necessarily constitutes a violation of the statute. In determining whether a representation is deceptive, its effect on the average consumer is considered. Conduct is unfair or deceptive if it has the capacity or tendency to deceive.
Canady v. Mann, 107 N.C. App. 252, 260, 419 S.E.2d 597, 602 (1992) (citations omitted).
There was no evidence presented at trial that Phelps engaged in unfair or deceptive acts or practices that proximately caused actual injury to plaintiff. Plaintiffs failed to show that Phelpsdeceived them in any way. He made no affirmative statements regarding the structural integrity of the house, and he never attempted to thwart any further investigation by plaintiffs, who were on notice of a potentially serious defect in the house. Accordingly, the trial court was correct in granting the motion for directed verdict as to this claim.
E. Punitive Damages
The trial court did not err in granting the motion for directed verdict as to punitive damages as there was no remaining claim upon which punitive damages could be awarded against Phelps.
IV. Robyn Marshall and Keller Williams Realty
Negligent Misrepresentation
The only claim against Marshall and Keller Williams Realty at trial was negligent misrepresentation. In support of this allegation, plaintiffs claim that Marshall told them that the house was "fine" and that everything would be okay once the termites were treated. She further stated that her mother had termites and that once they were treated, there were no further problems. Plaintiffs contend that Marshall never advised them to obtain any additional inspections upon reviewing the termite report and general home inspection report. Plaintiffs also take issue with the fact that Marshall had never sold a house in Hillsborough before and that she asked Phelps to refer inspectors.
Ms. Vicki Ferneyhough ("Ferneyhough"), plaintiffs' real estate expert, testified that these actions by Marshall were improper. Ferneyhough further stated that, in her opinion, Marshall offered a negligent misrepresentation with regard to the two inspection reports "[b]ecause she basically was told on the inspection report that the inspector did not have the opportunity to look at the crawlspace and look under the house, she was told on a second inspection report that there was visible infestation of termites, and at that point nothing else got done." Ferneyhough testified that Marshall had a "higher duty" because her clients were in England and unable to view the house.
However, plaintiffs presented no evidence that Marshall made any affirmative statements about the structural integrity of the house, most of which was not readily visible to her. While Marshall did not advise plaintiffs to seek further inspections, there was no evidence presented at trial that she attempted to dissuade plaintiffs from further investigation. Marshall may have assured plaintiffs that everything would be "fine" once the termites were treated, but that is not the same as saying there is no structural damage and you should not further investigate. In fact, the Exclusive Right to Represent Buyer signed by the parties contains the following clause:
In addition to the services rendered to Buyer by the Agent under the terms of this Agreement, Buyer is advised to seek other professional advice in matters of law, taxation, financing, surveying, wood-destroying insect infestation, structural soundness, engineering, and other matters pertaining to any proposed transaction.
(Emphasis added.)
While Marshall may have failed to represent her clients in accord with the standards of her profession, her actions do not amount to negligent misrepresentation, the only claim against her at trial.
Because plaintiffs cannot show that false information was negligently given by Marshall, the trial court was correct in granting the motion for directed verdict in favor of Marshall and her employer Keller Williams.
V. Motion for Reconsideration and Motion for a New Trial
Plaintiffs submitted a Motion for Reconsideration and Motion for a New Trial pursuant to N.C. Gen. Stat. § 1A-1, Rule 59 (2007), which was denied. "The trial court's discretionary ruling under Rule 59 in either granting or denying a motion for a new trial may be reversed on appeal `only in those exceptional cases where an abuse of discretion is clearly shown.'" Hughes v. Rivera-Ortiz, 187 N.C. App. 214, 217, 653 S.E.2d 165, 168 (2007) (quoting Anderson v. Hollified, 345 N.C. 480, 483, 480 S.E.2d 661, 663 (1997)), affirmed in part, 362 N.C. 501, 666 S.E.2d 751 (2008). "Our review of the trial court's decision to enter an order on [plaintiffs'] motion under Rules 59 and 60 without notice or a hearing is limited to whether the trial judge abused his discretion." Ollo v. Mills, 136 N.C. App. 618, 625, 525 S.E.2d 213, 217 (2000). The trial judge determined that no claims were appropriate for jury determination. It was in his sound discretion to decide whether a new trial was warranted. Based on our discussion supra, we find there was no abuse of discretion in his decision to deny a new trial without a hearing.
Conclusion
We conclude that, based upon the evidence presented, the trial court did not err in granting summary judgment for Home Checkers, Harold and Kelly Jolly. We further conclude that the trial court properly granted defendants' motions for directed verdict as to all claims, and that no error occurred in the trial court's denial of plaintiffs' motion for reconsideration and motion for a new trial.
Affirmed.
Judges WYNN and ERVIN concur.
Report per Rule 30(e).
NOTES
[1] William Latta was sued in his official capacity as president of Milton A. Latta & Sons Dairy Farms, Inc. and in his individual capacity. Tate Latta was sued in his official capacity as an officer of the corporation and in his individual capacity.
[2] This report is not dated; however, an invoice was submitted to Keller Williams on 28 May 2004.
[3] Plaintiffs' claims against other defendants in tort, discussed infra, are not barred by the economic loss doctrine even though there was a contractual relationship between the parties, because the fraud and negligent misrepresentations alleged by plaintiffs fall outside the scope of the contracts involved.
[4] Plaintiffs did not file a response to Home Checkers' motion for summary judgment.
[5] On 30 November 2004, plaintiffs filed a complaint against Kelly Jolly with the N.C. Home Inspector Licensure Board. At the time of summary judgment, the Board had not completed its investigation.
[6] While it is not clear from the evidence in this case if the "pests" referred to were indeed termites, plaintiffs made no further inquiry into this finding by the home inspector. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322643/ | 676 S.E.2d 867 (2009)
SAPP
v.
The STATE.
No. A09A0012.
Court of Appeals of Georgia.
March 31, 2009.
*868 Larry L. Duttweiler, Lawrenceville, for Appellant.
Lee Darragh, Dist. Atty., and Wanda Lynn Vance, Asst. Dist. Atty., for Appellee.
ELLINGTON, Judge.
Following a bench trial, the Superior Court of Hall County found Bobby Gene Sapp guilty of trafficking in methamphetamine, OCGA § 16-13-31(e). Sapp appeals from the judgment of conviction, contending that the court erred in denying his motion to suppress. Finding no error, we affirm.
"When we review a trial court's decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them." (Citation and punctuation omitted.) Whittle v. State, 282 Ga.App. 64, 66, 637 S.E.2d 800 (2006). "[W]here the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, [however,] the trial court's application of the law to undisputed facts is subject to de novo appellate *869 review." (Citation omitted.) Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994).
At the hearing on the motion to suppress, the only witness to testify was the officer who conducted the traffic stop. The officer testified that his office had received a tip that Sapp would be transporting methamphetamine at an approximate time on a certain day. The officer also testified about the circumstances surrounding his traffic stop and search of Sapp's truck. Following the motion hearing, the trial court issued a comprehensive order denying Sapp's motion to suppress and, in its order, made the following findings of fact:
On the afternoon of August 5, 2005, agents with the Hall County/Gainesville Gang Task Force received information from a known informant of untested reliability about the future behavior of the Defendant, Bobby Gene Sapp. The informant predicted that the Defendant, a white male, would be driving a GMC pickup truck, tan in color, with a distinctive trailer hitch in the shape of a skull that lit up. The informant additionally made it known that Mr. Sapp had been or was currently at his mother's house in the southern part of Hall County, and that he would be traveling on Jim Crow Road.
Acting on this information, the officers, including lead agent Andy Smith, set up surveillance on Stevens Road, roughly one half mile from Jim Crow Road. Approximately fifteen minutes into the surveillance, the officers observed a vehicle and driver matching the informant's description pass along Stevens Road. They then entered the road to follow the vehicle. The left wheels of [the] vehicle were observed crossing the centerline at least twice. Thereafter, the driver of the vehicle failed to use a turn signal at the intersection with Jim Crow Road. After the officers observed these traffic violations and after also turning left onto Jim Crow Road, Agent Smith proceeded to pull over the Defendant using blue lights. Agent Smith and at least one other officer were driving unmarked police cars with blue lights hidden from normal view.
Thereafter, Agent Smith approached the vehicle and asked the Defendant to step to the rear of the vehicle. The officer told Mr. Sapp that he had pulled him over due to traffic violations and asked for his driver's license. The officer then asked the Defendant if he had anything illegal on his person or in the vehicle. Though Mr. Sapp stated he did not have anything illegal on his person, he acknowledged that he had illegal substances in the vehicle. Agent Smith, acting on this information, asked for and received from Defendant consent to search the vehicle. Agent Nelson then approached the vehicle and saw a drug pipe[[1]] in plain view on the seat of the vehicle, which was visible without entering the truck's cab.... Thereafter, Mr. Sapp was placed under arrest and his truck was searched. The officers then uncovered methamphetamine and digital scales located inside the vehicle.
This Court has reviewed the transcript, and we find that the superior court's findings of fact are supported by evidence presented by the State. Thus, we adopt these findings for the purposes of this appeal. Whittle v. State, 282 Ga.App. at 66, 637 S.E.2d 800.
1. Sapp contends that the court erred in finding that the traffic stop was valid and not pretextual. Specifically, he argues that he was not required to use a left turn signal at the intersection because the road on which he was driving ended at the intersection and he had to turn either right or left, so there was no valid basis for the traffic stop. He also complains that the stop was unauthorized because the officers' patrol car was unmarked, in violation of OCGA § 40-8-91.[2]
*870 As the evidence showed, Agent Smith followed Sapp's truck and saw it cross the centerline of the road at least twice before he saw Sapp make a left hand turn at a "T" intersection without using a turn signal. Consequently, regardless whether Sapp was required to use his turn signal at the intersection, the officer's observation of Sapp illegally crossing the centerline authorized the stop of Sapp's truck. "Since the officer had observed defendant violate a traffic law, the stop did not violate the Fourth Amendment or the Georgia Constitution." (Citation omitted.) Cotton v. State, 237 Ga.App. 18, 513 S.E.2d 763 (1999).[3]
Further, Sapp's complaint about the officers' use of an unmarked patrol car is without merit. See OCGA § 40-8-91(f) ("An otherwise lawful arrest shall not be invalidated or in any manner affected by failure to comply with this Code section."); Gilbert v. State, 222 Ga.App. 787(3), 476 S.E.2d 39 (1996) (OCGA § 40-8-91 does not invalidate traffic arrests made in unmarked vehicles, nor does it require exclusion of evidence acquired as a result of the stop).
2. Sapp argues that the court erred in finding that he gave a valid consent to search instead of finding that the consent was invalid as the product of an illegal detention. He contends that the detention was patently unreasonable and coercive because an officer retained his driver's license while questioning him, two additional police cars arrived with flashing blue lights, and the officers wore vests marked with "POLICE" in large letters. Based upon the evidence in the record and the court's findings of fact, however, we disagree.
(a) "A valid ongoing seizure is not rendered unreasonable simply because, during its course, certain unrelated questions, which the detainee is free to decline to answer, are posed to him or her." (Citation and punctuation omitted.) Macias v. State, 292 Ga.App. 225, 227(1), 664 S.E.2d 265 (2008).
As a rule, there is no Fourth Amendment violation when an officer asks the driver to consent to a search during the course of a valid traffic stop. We have also found, however, that an officer who questions and detains a suspect for reasons other than those connected with the original purpose of the stop exceeds the scope of permissible investigation unless he has reasonable suspicion of other criminal activity. Nevertheless, mere police questioning does not constitute a seizure. Unless the detention was prolonged by the questioning, there is no additional seizure within the meaning of the Fourth Amendment.
(Citations and punctuation omitted.) Id.
As shown above, prior to the traffic stop, the officers had received a tip that Sapp would be transporting methamphetamine later that day, would be following a specific route, and would be driving a distinctive vehicle. After conducting the traffic stop, an officer asked Sapp to step to the rear of the truck and asked for his name and driver's license. The officer then asked if Sapp had anything illegal on his person or in his truck, and Sapp responded that he had an illegal substance in his truck. When the officer asked for permission to search the vehicle, Sapp consented. Under these circumstances, the trial court was authorized to find that the officers "diligently and swiftly confirmed their suspicions" and that the detention and questioning of Sapp was not unreasonably lengthy in violation of Sapp's constitutional rights. Thus, the evidence does not support Sapp's claim that his consent to search was involuntary because it was the result of an illegal detention.
(b) Further, pretermitting whether Sapp gave a valid consent to search, the evidence also shows that, while the officers *871 were questioning Sapp, one officer was able to see into the truck and observed a drug pipe in plain view on the seat of the truck's cab. Thus, after observing the pipe, the officers had probable cause to arrest Sapp, search the truck, and seize the methamphetamine and digital scales. "The plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer only if the officer's access to the object itself has some prior Fourth Amendment justification. A police officer may only seize what is in plain sight, if he is in a place where he is constitutionally entitled to be." (Citation and punctuation omitted; emphasis in original.) Bogan v. State, 270 Ga.App. 162, 164(1), 605 S.E.2d 872 (2004). Because the officer in this case was constitutionally entitled to stand outside the truck and look inside the cab during the brief detention and investigation and could observe the drug pipe from that vantage, the officers had probable cause to arrest Sapp, search the truck, and seize the methamphetamine and scales. Id. Therefore, the trial court did not err in denying Sapp's motion to suppress.
Judgment affirmed.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1] In his appellate brief, Sapp concedes that the pipe was a "methamphetamine pipe."
[2] OCGA § 40-8-91(a) provides that, except as otherwise provided in the Code section, "any motor vehicle which is used on official business by any person authorized to make arrests for traffic violations in this state, or any municipality or county thereof, shall be distinctly marked on each side and the back with the name of the agency responsible therefor, in letters not less than four inches in height."
[3] In Cotton, this Court stated that, "[w]hile the trooper acknowledged that he would not have stopped defendant but for the tip that defendant had been smoking a joint, and defendant has argued that the basis for the stop was pretextual, an officer's ulterior motive is of no consequence," because the stop was authorized by the trooper's observation that the defendant was committing a traffic offense. (Citation omitted.) 237 Ga.App. at 18, 513 S.E.2d 763. See also Whren v. United States, 517 U.S. 806, 813(II)(A), 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (in finding that a traffic stop following an officer's observation of a traffic violation was authorized, the Court noted that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322644/ | 676 S.E.2d 882 (2009)
LATTY
v.
The STATE.
No. A09A0365.
Court of Appeals of Georgia.
March 31, 2009.
*883 Joseph Scott Key, for Appellant.
David McDade, Dist. Atty., Jeffrey Matthew Gore, Asst. Dist. Atty., for Appellee.
ANDREWS, Presiding Judge.
Jamey Michael Latty appeals from the judgment of conviction entered on a jury verdict finding him guilty of possession of methamphetamine. His sole claim of error is that the trial court erred by allowing the prosecutor to cross-examine him about his failure to produce a witness to support his defense. For the following reasons, we find no error and affirm.
1. A police officer, who observed a car traveling on Interstate 20 with an obscured tag and following another vehicle too closely, stopped the car for these offenses. Latty was driving the car, and Latty's co-defendant, Rickey Shane Flynt, was the sole passenger. When the officer smelled the odor of burnt marijuana coming from inside the car, he summoned another officer with a drug-sniffing dog, who arrived during the traffic stop. The dog sniffed around the car and alerted to the presence of illegal drugs in the car. Based on this information, the officers searched the car; found suspected methamphetamine hidden in the trunk in a bag; and Latty and Flynt were arrested for possession of methamphetamine. The suspected substance was tested at the State Crime Lab and proved to be 6.83 grams of methamphetamine. Although Latty testified and denied any knowledge of the methamphetamine, Flynt pled guilty and testified for the State that he and Latty traveled that day from Alabama to Atlanta to jointly purchase the methamphetamine from their supplier, and that they jointly possessed the methamphetamine and hid it in a bag in the trunk. As similar transaction evidence, the State showed that Latty had previously been convicted of unlawful manufacture of methamphetamine. The evidence was sufficient for a rational trier of fact to find Latty guilty beyond a reasonable doubt of possession of methamphetamine. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. In his defense, Latty testified that, as a favor to his friend Flynt, he drove Flynt's girlfriend and another female named Nichelle from Alabama and dropped them off in the Atlanta area. According to Latty, the trip had nothing to do with purchasing methamphetamine, and he just assumed that the bag he saw Flynt put in the trunk when they departed on the trip belonged to Flynt's *884 girlfriend. Latty claims that the trial court erred by allowing the prosecutor to question him, over objection, about whether or not he intended to produce Nichelle as a witness to verify his story. Latty objected on the basis that the question improperly shifted to him the State's burden to produce evidence of guilt.
The Due Process Clause of the Fifth Amendment requires the State to carry the burden of proving beyond a reasonable doubt every essential element of the charged crime. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
While no legal presumption may arise from the [defendant's] failure to introduce certain witnesses, it is proper for [the prosecutor] to draw an inference of fact from such failure and comment on the failure to the jury when there is competent evidence before the jury that the missing witness has knowledge of material and relevant facts.
(Emphasis in original.) Morgan v. State, 267 Ga. 203, 205-206, 476 S.E.2d 747 (1996) For example, when a criminal defendant testifies at trial about the existence of a witness with knowledge of relevant facts, and the witness does not testify, the prosecutor is entitled to comment in closing argument on the defendant's failure to produce the witness, and this does not improperly shift the burden of proof to the defendant. Id. at 206, 476 S.E.2d 747. Moreover, when a defendant testifies about a witness who could corroborate his defense, but does not call the witness, it is reasonable for the prosecutor to infer that there exists no such favorable witness. Brewster v. State, 205 Ga.App. 770, 772, 424 S.E.2d 8 (1992). Latty advanced his defense by testifying that his sole purpose was to give a ride to Flynt's girlfriend and to Nichelle, and that he had no knowledge of the methamphetamine in the car. Even though Latty claimed on cross-examination that he did not know how to locate Nichelle, the prosecutor was entitled to cast doubt on his story by questioning him about why he had not produced Nichelle as a witness to support his defense. Id.; United States v. Schultz, 698 F.2d 365, 367 (8th Cir.1983). The trial court did not err by overruling Latty's objection.
Judgment affirmed.
MILLER, C.J., and BARNES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322652/ | 676 S.E.2d 178 (2009)
WHITE HOUSE INN AND SUITES, INC.
v.
CITY OF WARM SPRINGS et al.
No. S09A0241.
Supreme Court of Georgia.
April 28, 2009.
*179 Page, Scrantom, Sprouse, Tucker & Ford, William L. Tucker, Thomas E. Gristina, Travis C. Hargrove, Columbus, for appellant.
Lewis, Taylor & Todd, Jeffrey M. Todd, La Grange, Funderburk, Day & Lane, Columbus, Joel P. Day, Bradford C. Dodds, for appellee.
BENHAM, Justice.
Appellant White House Inn and Suites, Inc. ("the Inn") owns 58 acres at the top of a mountain in Warm Springs, Georgia, upon which it operates a hotel and assisted-living facility. By two warranty deeds granting fee simple title, the Inn deeded a total of .25 acres of real property to the City of Warm Springs in 1998, and the City built a water tower on the property. The Inn also granted the City a 15-foot-wide perpetual easement across appellant's property to the .25 acres. In 2006, the City entered into an agreement with appellee Charles Dean Ginn, doing business as Dean's Commercial Two-Way, that allowed Ginn to build a radio tower on the.25-acre parcel in exchange for the provision of certain public safety communications equipment and services to the City. Construction of the radio tower was completed in June 2007 and it is being used to provide the service.
In May 2008, the Inn filed a verified complaint for declaratory and injunctive relief, claiming that the property conveyed by the warranty deeds may be used only for the maintenance and operation of a water tower and that the easement is likewise limited and can be used only for the provision of water and sewer services. Attached to the complaint were copies of the warranty deeds by which the Inn conveyed the real property to the City "to have and to hold the said tract or parcel of land . . . forever in Fee Simple." Also attached was the perpetual easement which was entitled "Water and Sewer Line Easement" and which stated it was granted "for the purpose of installing and maintaining utilities, including ingress and egress, to make inspections or repairs on the same, and for any other purposes necessary to construct and maintain water and sewer lines through said property. . . ."
After holding a hearing, the trial court entered an order denying injunctive relief. The trial court declined to burden the warranty deeds with a restrictive use and found that the warranty deeds and easement were clear and unambiguous; that the warranty deeds conveyed fee simple title without any reference to a use restriction; and that the conveying language of the easement quoted above clearly and unambiguously granted an easement for utility purposes not limited to water and sewer lines and therefore included communications utilities.
1. The Inn contends the trial court erred when, in construing the warranty deeds, it did not take into consideration the contemporaneously executed easement. Noting that OCGA § 24-6-3(a) states that "[a]ll contemporaneous writings shall be admissible to explain each other[,]" the Inn maintains that the easement clearly and unambiguously shows that the easement can only be used for the water tower and utilities related thereto, and asserts that the contemporaneously executed warranty deeds should be construed as similarly restricted.
OCGA § 24-6-3(a) authorizes the use of contemporaneously-executed writings to provide necessary terms not contained in the document at issue, or to correct obvious errors in the document at issue. Thus, a contemporaneously executed document can provide a property description missing from a contract for the sale of real property (Owenby v. Holley, 256 Ga.App. 13(2), 567 S.E.2d 351 (2002)); establish the terms of a purportedly vague option agreement (Baker v. Jellibeans, Inc., 252 Ga. 458(1), 314 S.E.2d 874 (1984)); establish and correct a misnomer (C.L.D.F., Inc. v. The Aramore, LLC, 290 Ga.App. 271(1), 659 S.E.2d 695 (2008)); Duke v. KHD Deutz of America Corp., 221 Ga.App. 452, 471 S.E.2d 537 (1996); correct an "obvious error" (Tucker Station Ltd. v. Chalet I, Inc., 203 Ga.App. 383(2), 417 S.E.2d 40 (1992)); or establish that the acceptance of an offer was conditional. (Harris v. Distinctive Builders, Inc., 249 Ga.App. 686(1), 549 S.E.2d 496 (2001)). However, the contemporaneously executed document cannot be used to add to an agreement a representation or *180 warranty that is not there. Savage v. KGE Assoc., 260 Ga.App. 770(2)(a), 580 S.E.2d 591 (2003). See also CPI Phipps v. 100 Park Avenue Partners, 288 Ga.App. 614, 624, 654 S.E.2d 690 (2007). In the case at bar, the Inn seeks to graft onto the fee simple warranty deeds to the .25-acre parcel the language of the contemporaneously executed easement that burdens real property adjacent to the .25-acre plot, which language limits the easement's use. The easement, though executed contemporaneously with the warranty deeds, cannot be used to burden the warranty deeds with a restrictive use not contained therein, and the trial court did not err in so ruling.
2. The Inn suggests that the case be remanded to the trial court if we, contrary to the conclusion of the trial court, determine that the easement is ambiguous. We agree with the trial court that the unambiguous stated purpose of the easement authorizes its use for utility purposes not limited to water and sewer lines. Accordingly, there is no need to remand the case to the trial court.
Judgment affirmed.
All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322665/ | 676 S.E.2d 279 (2009)
APONTE
v.
The STATE.
No. A08A1708.
Court of Appeals of Georgia.
March 20, 2009.
*280 Bruce S. Harvey, for appellant.
Daniel J. Porter, District Attorney, John A. Warr, Assistant District Attorney, for appellee.
BARNES, Judge.
Angel Miciades Aponte appeals his conviction, after a bench trial, for trafficking in cocaine. He was sentenced to the mandatory minimum of 25 years in confinement. Before trial Aponte moved to suppress the evidence obtained as a result of his traffic stop, and after that motion was denied, Aponte stipulated to the facts presented at the motion hearing.
He now argues on appeal that the trial court erred by denying his motion to suppress because the initial traffic stop was invalid and his continued unrelated detention also rendered the subsequent search invalid. We disagree, and affirm his conviction.
1. Relying upon the arresting officer's testimony in which the officer first said he stopped Aponte because his license tag was registered to a different vehicle but then admitted on cross-examination that he did not know about the tag until after he stopped the car, Aponte contends the initial stop was illegal. He contends that the fact that the computer search first revealed no information on the tag was an insufficient reason to warrant a traffic stop. The State argues, however, that the officer stopped Aponte for a traffic violationfailure to use turn signalsbut the defendant responds that the officer did not testify he stopped Aponte for a traffic violation; he testified that he stopped him because the tag belonged to another car, which was false.
When this court
reviews a trial court's order concerning a motion to suppress evidence, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994). The reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment and must not disturb the trial court's ruling if there is any evidence to support it. Id. "Further, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial." Whitehead v. State, 258 Ga.App. 271, 273(1), 574 S.E.2d 351 (2002).
Harris v. State, 269 Ga.App. 48, 49, 603 S.E.2d 476 (2004). Our Supreme Court has held that
[t]he Fourth Amendment protects against unreasonable searches and seizures, including seizures that involve only a brief detention. Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of the Fourth Amendment. (Citation and punctuation omitted.)
Daniel v. State, 277 Ga. 840, 841(1), 597 S.E.2d 116 (2004), overruled on other grounds, Salmeron v. State, 280 Ga. 735, 737-738(1), 632 S.E.2d 645 (2006).
Construed most favorably to upholding the trial court's findings and judgment, the evidence shows that a police officer who *281 was patrolling for burglary suspects and on the lookout for a silver Mercury Town Car observed Aponte driving what appeared to be such a car "at slow speeds, not using any turn signals, going in and out of lanes." The officer tried to check the status of the car's Indiana license tag, but the computer returned no information. The officer watched Aponte pull into a restaurant parking lot "very quick." When the officer circled around the adjacent building, Aponte pulled out to leave and the officer stopped the car. He talked to Aponte and his passenger, checked their drivers' licenses, and ran the tag again. This time he learned that the tag had been issued to a different vehicle.
The officer returned to the car and asked Aponte if he had any drugs or weapons in the car, and then asked for consent to search it. Aponte said yes, and the officer searched the car's interior and trunk. Although he found no contraband, he thought the trunk "looked like it was too high in the back" and might have a hidden compartment.
A third officer, who arrived 40 to 50 minutes after the first search was completed, agreed the trunk did not look normal. He began questioning Aponte, and received consent to search the car again. The officer pulled up the carpet in the trunk and saw fresh Bondo seals around a false compartment. A fourth officer obtained a magnet from Aponte and used it to open a hidden "trapdoor" behind the back seat, finding 29 kilos of cocaine. Aponte appeals the trial court's denial of his motion to suppress.
"The stop in this case was a Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)." Stafford v. State, 284 Ga. 773, 774, 671 S.E.2d 484 (2009). "[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." (Citation and punctuation omitted.) Terry v. Ohio, supra, 392 U.S. at 22, 88 S.Ct. 1868. Articulable suspicion is "less than probable cause, but greater than mere caprice." McGaughey v. State, 222 Ga.App. 477, 479, 474 S.E.2d 676 (1996). "Whether a given set of facts rises to the level of reasonable, articulable suspicion of criminal activity is a legal question." Jones v. State, 253 Ga.App. 870, 873, 560 S.E.2d 749 (2002).
Further, the United States Supreme Court has
recognized the difficulty in defining "the elusive concept of what cause is sufficient to authorize police to stop a person," and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). "This demand for specificity in the information upon which police action is predicated is the central teaching of [the Supreme Court's] Fourth Amendment jurisprudence." Terry v. Ohio, supra, at 21, n. 18, 88 S.Ct. 1868.
Vansant v. State, 264 Ga. 319, 320(2), 443 S.E.2d 474 (1994). Further, an investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. Considering the totality of the circumstances, the inferences and deductions of a trained officer, drawn from objective observation, must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Postell v. State of Ga., 264 Ga. 249, 443 S.E.2d 628 (1994).
Given the officer's knowledge that he was to be on the lookout for a car similar in description to the car Aponte was driving and his observations of Aponte's suspicious driving before the stop, we find that the officer had such a particularized and objective basis for suspecting Aponte of criminal activity. Accordingly, the stop was authorized notwithstanding the officer only learned of the information about the tag after he stopped Aponte.
2. Aponte also contends that even if the stop was valid, his continued detention and questioning unrelated to the reason for his initial stop was illegal. He asserts that the officer "exceeded the permissible bounds of the investigatory stop" by not asking him *282 about the tag being registered to another car but instead asking him about drugs and for consent to search. After this search uncovered nothing out of the ordinary, the officer did not release Aponte but continued to question him. Additional officers were called to the scene, and one asked Aponte for consent to search his car again, which he gave.
The State responds that Aponte was not under arrest until the officers discovered the hidden cocaine. He was not handcuffed, was allowed to walk around the parking lot, could have asked to leave, and would not have been chased had he run. Further, the State argues, Aponte's Fourth Amendment rights were not violated by asking him if he had drugs or would consent to a search after the officer discovered the tag violation, because the officer would not have allowed Aponte to drive off with the improper tag and would have impounded the car regardless. Finally, the State contends that the improper tag affixed to the same kind of car the officers had been seeking "gave rise to a reasonable articulable suspicion of criminal activity and justified the continued detention and questioning" of Aponte.
We must first note that this was not the typical traffic stop in which a motorist was pulled over for violating, or being suspected of violating, some rule of the road. Instead, we have found that this was a Terry stop of a motorist whose car resembled one the police were looking for, and who was driving suspiciously. Therefore, the purpose of this stop was not only to resolve a traffic violation. Even if it had been for that purpose, an officer may continue to detain a driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring.
Additionally, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter. Daniel v. State, supra, 277 Ga. at 841-846(1)-(2), 597 S.E.2d 116.
The Fourth Amendment is not violated when, during the course of a valid traffic stop, an officer questions the driver or occupants of a vehicle and requests consent to conduct a search. The Supreme Court of the United States has held repeatedly that mere police questioning does not constitute a seizure. Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search his or her luggage. Unless the detention was prolonged by the questioning, there is no additional seizure within the meaning of the Fourth Amendment. Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005). Therefore, the dispositive factor in this case is not the nature or subject of the officer's questioning, but whether that questioning took place during [Aponte's] otherwise lawful detention. . . . If a driver is questioned and gives consent while he is being lawfully detained during a traffic stop, there is no Fourth Amendment violation. Harris v. State, 269 Ga.App. 48, 603 S.E.2d 476 (2004).
(Citation and punctuation omitted.) Salmeron v. State, supra, 280 Ga. at 736(1), 632 S.E.2d 645. "A valid ongoing seizure is not rendered `unreasonable' simply because, during its course, certain unrelated questions, which the detainee is free to decline to answer, are posed to him or her." Id. at 739, 632 S.E.2d 645.
Here, the evidence shows that after stopping Aponte, the officer learned of the problems with the tag, giving the officer additional reasonable particularized suspicion of illegal activity justifying the additional questions. We do not find that the officers' questioning "exceeded the permissible bounds of the investigatory stop."
Accordingly, this enumeration of error is also without merit.
Judgment affirmed.
JOHNSON, P.J., and PHIPPS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322709/ | STATE OF NORTH CAROLINA
v.
TY JOSEPH GIDDINGS
No. COA08-1032.
Court of Appeals of North Carolina.
Filed May 19, 2009.
This case not for publication
Attorney General Roy Cooper, by Assistant Attorney General James C. Holloway, for the State.
Carol Ann Bauer for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Defendant appeals his sentence and argues that the trial court erred in calculating his prior record points. For the reasons stated herein, we affirm defendant's sentence but remand for the correction of a clerical error.
I. Facts
Defendant Ty Joseph Giddings ("defendant") was indicted by a Buncombe County Grand Jury for 24 counts of obtaining property by false pretenses under N.C. Gen. Stat. § 14-100, and 1 Count of habitual felon under N.C. Gen. Stat. § 14-7.1. The indictment for habitual felon was supported by his Washington State convictions of: (1) first-degree burglary on or about 26 May 1988; (2) forgery on or about 5 June 1992; and (3) forgery on or about 11 April 2002. Defendant pled guilty to all charges. Pursuant to the plea agreement, all charges were consolidated for judgment, and the parties stipulated to the mitigating factor of "acceptance of responsibility" and that defendant would be sentenced at "the bottom of the mitigated range in the block the Court finds applies to his point range."
The State submitted a prior record level sentencing worksheet which classified defendant's prior convictions as follows: (1) second-degree burglary in Washington State on 11 May 1987 as a Class H felony; (2) second-degree burglary in Washington State on 26 May 1988 as a Class H felony, (3) forgery in Washington State on 8 June 1992 as a Class I felony, (4) third-degree rape in Oregon on 21 July 1995 as a Class C felony, (5) first-degree theft in Oregon on 23 June 1998 as a Class H felony, (6) identity theft in Washington State on 19 June 2001 as a Class G felony, (7) theft in Washington State on 11 April 2002 as a Class H felony, and (8) identity theft in Washington State on 18 February 2005 as a Class G felony. Defendant stipulated that he was the perpetrator of all prior convictions.
Defendant was assigned 2 points for each Class H or Class I felony, 4 points for each Class G felony, and 6 points for the Class C felony. See N.C. Gen. Stat. § 15A-1340.14(b) (2007). Accordingly, defendant received 24 prior record points and was classified at prior record Level VI. The State submitted copies of the relevant Oregon and Washington State statutes for the trial court to determine which North Carolina offenses were substantially similar. The trial court agreed with the State's assessment of 24 prior record points and sentenced defendant as an habitual felon at prior record Level VI. Defendant received a sentence in the mitigating range of 101-131 months' imprisonment. Defendant entered notice of appeal in open court on 9 June 2008.
II. Prior Record Points
Defendant argues that the trial court erred in improperly classifying his out-of state convictions to calculate his prior record points. Defendant asserts that he should have received 12 prior record points and been classified at prior record Level IV, which would reduce his sentence to a range of 80-107 months' imprisonment. See N.C. Gen. Stat. § 15A-1340.17(c) (2007). We disagree.
Under North Carolina's structured sentencing scheme, the prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender's prior convictions. N.C. Gen. Stat. § 15A-1340.14(a). "The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction." N.C. Gen. Stat. § 15A-1340.14(f)(4).
When determining a defendant's prior record level, the court presumes that an out-of-state felony conviction is a Class I felony. N.C. Gen. Stat. § 15A-1340.14(e). However, the out-of-state felony conviction can be classified higher than Class I, if the State proves by a preponderance of the evidence that theoffense is "substantially similar" to a North Carolina offense of a higher classification. Id. Similarly, if the defendant proves by a preponderance of the evidence that the out-of-state felony conviction is substantially similar to a misdemeanor in North Carolina, the conviction is classified as the equivalent misdemeanor. Id. In determining the prior record level, the classification of a prior offense is the classification assigned to that offense at the time the offense for which the offender is being sentenced is committed. N.C. Gen. Stat. § 15A-1340.14(c).
"[W]hether an out-of-state offense is substantially similar to a North Carolina offense is a question of law that must be determined by the trial court[.]" State v. Hanton, 175 N.C. App. 250, 254, 623 S.E.2d 600, 604 (2006). Determination of this question involves comparison of the elements of the out-of-state offense to those of criminal offenses in North Carolina. Id. The production of copies of criminal statutes from other jurisdictions to allow comparison to the criminal laws of North Carolina are "sufficient to prove by a preponderance of the evidence that the crimes of which [a] defendant was convicted in those states were substantially similar to classified crimes in North Carolina for purposes of G.S. § 15A-1340.14(e)." State v. Rich, 130 N.C. App. 113, 117, 502 S.E.2d 49, 52, disc. review denied, 349 N.C. 237, 516 S.E.2d 605 (1998). As a question of law, we review a trial court's determination of substantial similarity de novo. Hanton, 175 N.C. App. at 254, 623 S.E.2d at 604. Defendant assigns error to the following findings of the trial court: defendant's two second-degree burglary convictions under Wash. Rev. Code Ann. § 9A.52.030 are substantially similar to felony breaking and entering under N.C. Gen. Stat. § 14-54; defendant's forgery conviction under Wash. Rev. Code Ann. § 9A.60.020 is substantially similar to forgery of a financial transaction card under N.C. Gen. Stat. § 14-113; defendant's third-degree rape conviction under Or. Rev. Stat. § 163.355 is substantially similar to statutory rape or sexual offense of a person who is 13, 14, or 15 years old under N.C. Gen. Stat. § 14-27.7A; defendant's first-degree theft conviction under Or. Rev. Stat. § 164.055 is substantially similar to felony larceny under N.C. Gen. Stat. § 14-72(a); defendant's first-degree theft conviction under Wash. Rev. Code Ann. § 9A.56.030 is substantially similar to felony larceny under N.C. Gen. Stat. § 14-72(a); and defendant's two identity theft convictions under Wash. Rev. Code Ann. § 9.35.020 are substantially similar to identity theft under N.C. Gen. Stat. § 14-113.20.
Defendant contends that each out-of-state conviction is substantially similar to a North Carolina offense of a lower classification. Defendant asserts that: (1) his convictions classified as Class H or Class I felonies are substantially similar to misdemeanors; (2) his identify theft convictions, classified as Class G felonies, are substantially similar to obtaining property by false pretenses, a Class H felony; and (3) his third-degree rape conviction, classified as a Class C felony, is substantiallysimilar to taking indecent liberties with children, a Class F felony.
Defendant first argues that the trial court erred in finding his 1987 second-degree burglary conviction was substantially similar to felony breaking and entering in North Carolina, a Class H felony worth 2 prior record points. See N.C. Gen. Stat. § 14-54(a) (2007); N.C. Gen. Stat. § 15A-1340.14(b)(4). Defendant argues that his conviction was substantially similar to misdemeanor breaking and entering in North Carolina, a Class 1 misdemeanor, worth 1 prior record point. See N.C. Gen. Stat. § 14-54(b); N.C. Gen. Stat. § 15A-1340.14(b)(5).
To determine if an out-of-state conviction is substantially similar to an offense in North Carolina, we must compare the elements of the out-of-state offense to those of the North Carolina offense. Hanton, 175 N.C. App. at 254, 623 S.E.2d at 604. Wash. Rev. Code Ann. § 9A.52.030 provides that a person is guilty of second-degree burglary if "with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling." Wash. Rev. Code Ann. § 9A.52.030 (2007). N.C. Gen. Stat. § 14-54(a) provides that "[a]ny person who breaks or enters any building with intent to commit any felony or larceny" is guilty of felony breaking and entering. N.C. Gen. Stat. § 14-54(a). Defendant asserts that second-degree burglary is substantially similar to misdemeanor breaking and entering, an offense which requires that a person "wrongfully breaks or enters any building[.]" N.C. Gen. Stat. § 14-54(b). Defendant argues that he was convicted for "going into a building and using the telephone, not going into a building for the purpose of a felony or to commit larceny[.]" This argument has no merit. The determination of whether a North Carolina offense is substantially similar is not concerned with the factual circumstances of the out-of-state conviction, but instead, involves comparing the elements of both offenses. The trial court correctly concluded that second-degree burglary in Washington State was substantially similar to felony breaking and entering in North Carolina because both offenses require entering a building with the intent to commit a crime.
In his remaining arguments, defendant fails to compare the elements of each out-of-state conviction with a North Carolina offense, and instead, discusses the factual circumstances of each conviction. Thus, defendant has not met his burden of showing that any of his out-of-state convictions were substantially similar to the lower classified offenses. The assignments of error are overruled.
III. Judgment and Commitment
Defendant assigns error to his judgment and commitment, which provided that his sentence was "within the presumptive range of sentences authorized under G.S. 15A-1340.17(c)". Defendant was sentenced within the mitigating range, and therefore, this clerical error had no substantive effect on his sentence. See N.C. Gen. Stat. § 15A-1340.17(c). "When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record'" speak the truth."'" State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (citations omitted). We remand only for correction of this clerical error.
IV. Conclusion
The trial court did not err in calculating defendant's prior record points for his out-of-state convictions. We affirm defendant's sentence and remand to correct the clerical error in the judgment and commitment.
Affirmed and remanded for correction of a clerical error.
Judges HUNTER, Robert C., and CALABRIA concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322708/ | STATE OF NORTH CAROLINA
v.
AKEEM RASHADD KEATON.
No. COA08-840.
Court of Appeals of North Carolina.
Filed May 19, 2009.
This case not for publication
Attorney General Roy A. Cooper, III, by Assistant Attorney General Daniel P. O'Brien, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.
JACKSON, Judge.
Akeem Rashadd Keaton ("defendant") appeals his convictions for first-degree murder, first-degree kidnapping, and robbery with a dangerous weapon. For the reasons stated below, we hold no prejudicial error.
On 28 January 2005, defendant spent the evening with his cousin, Kurt Brock ("Brock"), and Harmahn Smith ("Smith") at Brock's apartment, where they watched a movie until defendant fell asleep with Smith at the other end of the same couch. Brock was almost twenty-one years old; defendant had just turned sixteen.
Defendant was awakened by Smith's screams as Brock stabbed Smith repeatedly with a lock-blade knife. Defendant stood back andwatched, unable to say or do anything. When the knife broke, Brock grabbed a frying pan from a nearby table and began hitting Smith in the head with it. When the pan's handle broke, either Brock told defendant to go get knives from the kitchen, threatening to kill him if he did not, or defendant took it upon himself to get knives from the kitchen. Defendant admitted cutting Smith at least once.
Later, Brock duct taped Smith's hands behind his back and enlisted defendant's help in holding Smith's legs while he taped them together. Brock took Smith's chain, wallet, and cell phone. He taped a towel over Smith's face. After removing everything from Smith's wallet, Brock placed the money in his pocket, and placed the identification cards and empty wallet on the table. He then left the apartment for approximately forty-five minutes to "throw away some evidence." Smith was still alive when Brock left and talked to defendant while Brock was gone.
When Brock returned, he had black garbage bags with him, which he duct taped around Smith's body, including over his head. Brock then left again for another period of approximately forty-five minutes to dispose of the garbage bags. Smith was still alive, and at some point asked defendant for a pillow, which defendant provided. Eventually, defendant could no longer hear Smith breathing.
Approximately thirty minutes after Brock's return, he said that they needed to get Smith out of the house. Brock and defendant carried Smith out of the apartment, down the steps, and placed him in the trunk of Smith's own car, to which Brock had thekeys. Brock and defendant drove to a lake where Brock said they would dispose of the body.
According to defendant, Smith did not speak or move when they opened the trunk and the bag over his head was still intact. He and Brock carried Smith down to the lake and Brock instructed him to take off his pants and shoes. Brock then told defendant to push Smith out into the water or "he would kill me, too." Defendant took the body approximately ten feet from the bank with nothing to make the body submerge.
However, Brock testified that Smith was still alive when they took him out of the trunk and the bag over his head had come off. Defendant took Smith into the water and held his head under for approximately thirty or forty seconds until Smith stopped kicking. Defendant then pushed Smith's body under the water and left.
Smith's body was recovered on 27 February 2005. His decomposing body was identified by dental and medical records. The autopsy revealed that Smith died of multiple stab wounds and asphyxia. The asphyxia was caused by the bag over Smith's head. Smith could have recovered from his multiple knife wounds had he been given medical attention.
Police questioned Brock on or about 22 March 2005, but did not arrest him. His statement did not implicate himself in Smith's murder. On 24 March 2005, police detectives arrived at defendant's home and found him sitting on the front steps. The detectives informed defendant that they wanted to talk to him at the Law Enforcement Center ("LEC"). At first, defendant was reluctant togo with the detectives. The detectives asked if he was aware that Brock had come in for questioning and had not been arrested; defendant stated that he knew that. After the detectives told him, "that's basically what we're going to do with you if you agree to go," he agreed to accompany the detectives to the LEC.
Defendant rode to the LEC in the front seat of the detectives' unmarked car. He was escorted to an interview room and asked if he wanted anything. The detectives got him some chips and a soda. They informed him that he was not under arrest and that he was free to leave at any time. They did not read him his Miranda rights.
Initially, defendant told the detectives that he had last seen Smith between 10 and 15 January 2005. When the detectives expressed their disbelief, defendant held his head down for a few seconds, then raised his head and with tears in his eyes informed them that Brock had stabbed Smith. The detectives questioned defendant for approximately thirty minutes, during which defendant implicated himself. The detectives then informed defendant that they wanted to record his statement and left the room to get an audio recorder. Defendant was left unattended in the interview room for approximately ten minutes.
Defendant's recorded statement lasted for approximately one hour and fifteen minutes. He implicated Brock primarily, but admitted his own involvement by holding Smith's legs while Brock taped them together, failing to seek help during the periods Brock left him alone with Smith, helping carry Smith out of Brock's apartment, helping carry Smith to the lake, and taking Smith approximately ten feet into the water and leaving him there. He indicated that he assisted because Brock threatened him and he was scared.
During the interview, defendant had indicated that he was willing to drive the detectives to several of the locations discussed in his statement. Defendant was left in the interview room for approximately one hour before being escorted to the detectives' vehicle to show them these places. After placing defendant in the front passenger seat of their car, the detectives informed defendant that he was under arrest and read him his Miranda rights. After acknowledging that he understood his rights, defendant signed a juvenile waiver of rights form.
Defendant first directed the detectives to the storm drain where Brock disposed of evidence. He then directed the detectives to the lake where he and Brock disposed of Smith's body. Finally, he directed the detectives to the home of a man who had provided cleaning materials. In all, the trip took approximately two hours. While showing the detectives these locations, defendant had revealed additional information not disclosed in his initial recorded statement; therefore, the detectives asked him if he would be willing to give them a second recorded statement, which he did.
Eventually, Brock pled guilty to second-degree murder and was sentenced to a term of 196 to 245 months in prison. He also pled guilty to first-degree kidnapping and robbery with a dangerous weapon; however, judgment on those charges was continued until after he testified against defendant. Defendant did not file a pre-trial motion to suppress either the first or second recorded statement. Defendant did not object when either statement was introduced into evidence. Audio recordings of both statements were played for the jury. Transcripts of the second recorded statement were published to the jury to read-along while the statement was played aloud.
The jury found defendant guilty of first-degree murder, first-degree kidnapping, and robbery with a dangerous weapon. The trial court sentenced him to a term of life imprisonment without the possibility for parole for the murder charge, followed by a presumptive term of seventy-three to ninety-seven months for the kidnapping charge. For the robbery with a dangerous weapon charge, the trial court set defendant's sixty-four to eighty-six month term to run concurrently with the murder conviction. Defendant appeals.
Defendant first argues that the trial court committed plain error by not suppressing the two recorded statements ex mero motu. We disagree.
In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion.
N.C. R. App. P. 10(b)(1) (2007). However, "[i]n criminal cases, a question which was not preserved by objection noted at trial . . . nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C. R. App. P. 10(c)(4) (2007). "A `plain error' is `a "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done."'" State v. Holloway, 82 N.C. App. 586, 586, 347 S.E.2d 72, 73 (1986) (emphasis in original) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).
As to the first recorded statement, defendant contends that because he had not been Mirandized, his statement was inadmissible. In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), the United States Supreme Court held that a person's statements are not admissible unless, before an officer begins a custodial interrogation, the officer warns the person of various constitutional rights. Id. at 479, 16 L. Ed. 2d at 726 (emphasis added). The defendant may waive these rights provided the waiver is made voluntarily, knowingly, and intelligently. Id. at 444, 16 L. Ed. 2d at 707; see also State v. McRae, 276 N.C. 308, 314, 172 S.E.2d 37, 41 (1970). Miranda applies only when the person being interrogated is in custody.
The test for whether a person is in custody for Miranda purposes is "based on the totality of the circumstances, whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." State v. Buchanan, 353 N.C. 332, 339, 543 S.E.2d 823, 828 (2001) (internal quotation marks omitted); accord Stansbury v. California, 511 U.S. 318, 322, 128 L. Ed. 2d 293, 298 (1994), Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719 (1977).
Here, at the time defendant gave his first recorded statement, he was not under formal arrest. Further, his freedom of movement had not been restrained to a degree associated with formal arrest. Immediately prior to beginning the first statement, defendant was left alone in an unlocked interview room for approximately ten minutes. He had been told repeatedly that he was not under arrest and that he was free to leave at any time. He was not placed under formal arrest until one hour after concluding his first recorded statement, at which time he was informed of his Miranda rights.
As to the second recorded statement, defendant contends that it was the inadmissible product of the "Question First" tactic disapproved of in Missouri v. Seibert, 542 U.S. 600, 159 L. Ed. 2d 643 (2004). In Seibert, the United States Supreme Court tested a police protocol for custodial interrogation wherein no Miranda warnings were given until after an interrogation had produced a confession. The interrogating officer then administered Miranda warnings and led the suspect to cover the same ground a second time. The question was whether the repeated statement was admissible. The Court held that it was not because "this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda's constitutional requirement[.]" Id. at 604, 159 L. Ed. 2d at 650. Here, because defendant was not in custody during the first recorded statement, the first statement was not inadmissible and Siebert does not apply.
Further, the first recorded statement comprised eighty-three pages of transcript while the second recorded statement comprised only thirty-three pages. The second statement did not cover the same ground as the first one; it covered additional ground disclosed while defendant drove to various crime-scene locations with the detectives.
Because defendant's first recorded statement was not obtained while defendant was in custody, Miranda does not apply and the statement was admissible. Defendant's second recorded statement was obtained after defendant was Mirandized, making it admissible as well. Therefore, these assignments of error are overruled.
Defendant also argues that in failing to file a motion to suppress his recorded statements and raise objections upon their introduction into evidence at trial, he was denied the right to effective assistance of counsel. We are not in a position to adequately assess this argument.
This Court may address a defendant's ineffective assistance of counsel claim on direct review "when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). When such a claim is prematurely brought, this Court may dismiss the claim without prejudice, in order to allow the defendant to reassert the claim by way of a motion for appropriate relief. State v. Campbell, 359 N.C. 644, 691, 617 S.E.2d 1, 30 (2005), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006). "Simply stated, the trial court is in a better position to determine whether a counsel's performance: (1) was deficient so as to deprive defendant of `counsel' guaranteed under the Sixth Amendment; and (2) prejudiced defendant's defense to such an extent that the trial was unfair and the result unreliable." State v. Duncan, 188 N.C. App. 508, 517, 656 S.E.2d 597, 603 (Hunter, J. dissenting) (citing State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)), rev'd, 362 N.C. 665, 666, 669 S.E.2d 738, 738 (2008) (per curiam) ("For the reasons stated in the dissenting opinion of the Court of Appeals, the decision of the Court of Appeals is reversed[.]"). "Counsel is given wide latitude in matters of strategy, and the burden to show that counsel's performance fell short of the required standard is a heavy one for defendant to bear." State v. Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001), cert. denied, 537 U.S. 846, 154 L. Ed. 2d 73 (2002).
Here, because the alleged errors may have been matters of trial strategy, the trial court is in a better position to review counsel's performance. Pursuant to Campbell, we dismiss this claim without prejudice, so that defendant may reassert the claim in a motion for appropriate relief.
Finally, defendant argues that it is cruel and unusual punishment for him to be sentenced to a mandatory term of life imprisonment without the possibility of parole when he committed the offense when he was only sixteen years old. Defendant concedes that this Court has decided the matter contrary to his assertion and that he raises the issue for preservation purposes only. Therefore, we do not address this assignment of error.
For the reasons stated above, we can discern no prejudicial error in the trial below.
No prejudicial error.
Judges McGEE and Robert N. HUNTER, Jr. concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4516211/ | Filed 3/13/20
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076200
Plaintiff and Respondent,
v. (Super. Ct. Nos.
FSB17002568, FSB17002569)
IAN ALEXANDER HENDERSON et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of San Bernardino, Michael A.
Knish, Judge. Judgments of conviction affirmed; sentences vacated and remanded with
directions.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant Ian Henderson.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant
and Appellant Zavier Marks.
Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland,
Assistant Attorneys General, Charles C. Ragland, Scott C. Taylor and Marvin E. Mizell,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ian Alexander Henderson and codefendant Zavier Michael
Marks of attempted murder (Pen. Code,1 §§ 664, subd. (a), 187, subd. (a); count 1) and
shooting at an inhabited dwelling (§ 246; count 2). With respect to count 1, the jury
found true allegations that the attempted murder was committed by both defendants
willfully and with deliberation and premeditation (§ 664, subd. (a)). It found not true
allegations as to both counts that the defendants committed the offenses for the benefit of,
at the direction of, or in association with a criminal street gang (§ 186.22, subd.
(b)(1)(C)). The court dismissed allegations that as to both counts, a principal either
used a firearm, discharged a firearm, or discharged a firearm causing great bodily injury
(§ 12022.53, subds. (b)–(e)). However, it found true allegations that Henderson and
Marks each suffered a single conviction constituting both a serious felony prior
conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)).
The court sentenced Henderson to a 29-year-to-life prison sentence: seven years to
life on count 1 doubled to 14 years to life by his strike prior, plus a consecutive middle
term of five years on count 2 doubled to 10 years, and an additional consecutive five
years for the serious felony prior conviction. It sentenced Marks to 19 years to life in
prison: seven years to life on count 1 doubled to 14 years to life by the strike prior
conviction, plus a concurrent midterm of five years on count 2 doubled to 10 years, and a
five-year enhancement for the serious felony prior conviction.
1 Undesignated statutory references are to the Penal Code.
2
Henderson contends: (1) his count 2 conviction must be reversed because it is
barred by section 1387, under which a prosecutor may not refile charges that have
already been twice dismissed; (2) the prosecutor committed prejudicial misconduct
during his closing argument when explaining premeditation and Henderson received
ineffective assistance of counsel by counsel's failure to object to it; and (3) the trial court
erred by imposing a consecutive sentence on count 2 based on the same facts as
underlying its imposition of a serious felony prior conviction. Marks contends the trial
court erred by denying Henderson's motion alleging a prima facie case of discrimination
after the prosecutor exercised his first peremptory challenge against an African-American
juror (Juror No. 12, also referred to by the parties as J12-8). Marks joins Henderson's
first two claims and Henderson joins Marks's claim.
In supplemental briefing, both Henderson and Marks ask that the matter be
remanded for resentencing so that the trial court may exercise its discretion whether to
impose or strike the five-year sentence for their prior serious felonies. Pointing out the
court did not indicate at sentencing whether it would have stricken the five-year terms if
it knew it had discretion to do so, the People concede the matter should be remanded so
the court can exercise its discretion whether to strike those terms. We agree with the
concession. We vacate the defendants' sentences and remand with directions set forth
below. With the exception of Henderson's claim concerning imposition of his
consecutive sentence on count 2, which we direct the trial court to address on remand, we
reject the defendants' other contentions.
3
FACTUAL AND PROCEDURAL BACKGROUND
Given the nature of defendants' appellate claims it suffices to just briefly
summarize the underlying facts of the offenses. We provide additional detail below as
necessary to resolve prejudice arguments.
At about 2:15 a.m. on March 26, 2017, three men seen in proximity to a vehicle
within an apartment complex asked the victim where he was from and whether he was a
"Blood or a Crip." After the victim said he was from Watts, they fired multiple rounds of
bullets at him, hitting the victim's hip after he dropped to the ground and tried to crawl
away, and also hitting occupied apartments. A security guard called police and gave
them the license plate number of the car when it drove out of the complex. An officer
found 24 bullet casings in the area.
At about 10:00 that morning an officer stopped the vehicle involved in the
shooting, finding Henderson in the driver's seat and Marks, another man, and a woman as
passengers. Police searching the vehicle found two loaded nine-millimeter handguns, a
large capacity magazine for one of the guns, and a cell phone. An additional search of
the car revealed a third loaded handgun, which was later determined by a firearms
examiner to have been the gun that fired eight of the rounds at the crime scene. The
examiner determined one of the 24 rounds was fired from one of the other two guns
found in the car. Federal officers performed an analysis on Henderson's phone and found
it had activated three cell phone towers in the San Bernardino area at about 2:17 a.m.,
about 1.5 miles from the crime scene.
4
Neither Henderson nor Marks presented witnesses in their defense. Their third
codefendant, Edwurd Sanders, testified that he, Henderson and Marks drove to a strip
club that morning, drank alcohol and left at about 1:45 a.m. The jury could not reach a
verdict as to Sanders, and the court declared a mistrial as to him.
DISCUSSION
I. Operation of Two-Dismissal Rule and Exception of Sections 1387 and 1387.1
A. Legal Principles
Section 1387, subdivision (a) provides, with exceptions not applicable here: "An
order terminating an action pursuant to this chapter . . . is a bar to any other prosecution
for the same offense if it is a felony . . . and the action has been previously terminated
pursuant to this chapter . . . ." This statute sets out a " 'two-dismissal rule; two previous
dismissals of charges for the same offense will bar a new felony charge.' " (People v.
Trujeque (2015) 61 Cal. 4th 227, 255; see also People v. Juarez (2016) 62 Cal. 4th 1164,
1167.)
Section 1387.1, subdivision (a) constitutes an exception to that rule—allowing a
third opportunity for the People to pursue violent felony charges—if either of the prior
two dismissals was due to excusable neglect and the prosecution did not act in bad faith.
(People v. Trujeque, supra, 61 Cal.4th at pp. 255-256; People v. Standish (2006) 38
Cal. 4th 858, 882; People v. Villanueva (2011) 196 Cal. App. 4th 411, 425.) That section
provides: "(a) Where an offense is a violent felony, as defined in Section 667.5 and the
prosecution has had two prior dismissals, as defined in Section 1387, the people shall be
permitted one additional opportunity to refile charges where either of the prior dismissals
5
under Section 1387 were due solely to excusable neglect. In no case shall the additional
refiling of charges provided under this section be permitted where the conduct of the
prosecution amounted to bad faith." Thus, "if the previously charged and dismissed
felony is not a violent felony as defined in section 667.5, '[s]ection 1387 generally bars a
third prosecution of a felony, and certainly bars further prosecution when section 1387.1's
prerequisites are not met [e.g., a section 667.5 violent felony].' " (People v. Salcido
(2008) 166 Cal. App. 4th 1303, 1310.)
These statutes, contained in Chapter 8 (entitled "Dismissal of the Action for Want
of Prosecution or Otherwise") are part of "a series of statutes, commencing with Penal
Code section 1381, [that] are a construction and implementation of the California
Constitution's speedy trial guarantee." (People v. Villanueva, supra, 196 Cal.App.4th at
p. 422.) That they protect that pretrial right is reflected in their legislative history, which
the California Supreme Court has already examined in several cases. In those, the court
addressed the " 'human problems the Legislature sought to address in adopting section
1387—" 'the ostensible objects to be achieved [and] the evils to be remedied.' " ' "
(People v. Juarez, supra, 62 Cal.4th at p. 1170; People v. Traylor (2009) 46 Cal. 4th
1205, 1213-1214; Burris v. Superior Court (2005) 34 Cal. 4th 1012, 1018.) It explained:
" 'Section 1387 implements a series of related public policies. It curtails prosecutorial
harassment by placing limits on the number of times charges may be refiled. [Citations.]
The statute also reduces the possibility that prosecutors might use the power to dismiss
and refile to forum shop. [Citations.] Finally, the statute prevents the evasion of speedy
trial rights through the repeated dismissal and refiling of the same charges.' " (Juarez, at
6
p. 1170, quoting Burris, at p. 1018.) This court and others have said that the purpose of
section 1387 is to " 'prevent improper successive attempts to prosecute a defendant.' "
(People v. Salcido, supra, 166 Cal.App.4th at p.1309; Berardi v. Superior Court (2008)
160 Cal. App. 4th 210, 219; People v. Rodriguez (2013) 217 Cal. App. 4th 326, 334; People
v. Cossio (1977) 76 Cal. App. 3d 369, 372.)
"By providing that a single dismissal of a misdemeanor bars further prosecution
for the same offense but requiring two dismissals for felonies, '[s]ection 1387 reflects a
legislative judgment that because of the heightened threat to society posed by serious
crimes, more filings should be permitted for serious crimes than for minor ones.'
[Citation.] 'As further proof of this intent, while two filings are allowed for most
felonies, section 1387.1 carves out the most serious category of felonies, violent felonies,
and allows a third filing for these crimes under certain circumstances.' " (People v.
Juarez, supra, 62 Cal.4th at pp. 1170-1171.) Underlying the statutes is the compelling
public interest in prosecuting very serious felonies such that society should not pay the
price of procedural errors. (See Assem. Com. on Public Safety Analysis, Sen. Bill No.
709 (1987-1988 Reg. Sess.) as amended April 22, 1987, p. 2.; Dept. of Justice Bill
Analysis, Sen. Bill No. 708 (1987-1988 Reg. Sess.) March 17, 1987, p. 1.) Thus, the
People should be permitted to refile and hold a trial on the merits on such charges despite
having had to previously dismiss them due to errors on the part of the court, prosecution,
law enforcement agency or witnesses. (See People v. Woods (1993) 12 Cal. App. 4th
1139, 1148-1149.)
7
B. Background
Before trial, defense counsel jointly moved to dismiss certain of the defendants'
charges on grounds they were twice previously dismissed and barred from further
prosecution under section 1387. The trial court conducted an evidentiary hearing on
the People's claim that the case fell within the exception to section 1387 set forth in
section 1387.1 for violent felonies. It found for purposes of that exception the dismissals
were the result of the People's excusable neglect, justifying the People's third filing of
all violent felonies under section 1387.1. The prosecutor pointed out the offense for
shooting at an inhabited dwelling (§ 246) with the accompanying gang allegation
(§ 186.22, subd. (b)) was a life offense, and all life offenses constituted violent felonies.
The court agreed, dismissing certain charges but retaining the section 246 charge, which
was renumbered in the fifth amended information as count 2.
The case thus proceeded against the defendants on the section 246 offense
notwithstanding the two prior dismissals, and the jury returned guilty verdicts on those.
However, the jury found not true the allegation under section 186.22, subdivision
(b)(1)(C) that defendants committed that offense for the benefit of, at the direction of, or
in association with a criminal street gang with the specific intent to promote, further, or
assist in criminal conduct by gang members. As indicated above, the trial court at
sentencing imposed a consecutive 10-year sentence on that conviction for Henderson, and
a concurrent 10-year sentence for Marks.
8
C. Contentions
Defendants contend that in view of the jury's not true finding on the gang
allegation, their convictions for shooting at an inhabited dwelling under section 246 are
nonviolent felonies that must be reversed as barred under section 1387's rule as to twice-
dismissed felony charges. Though they engage in a fairly lengthy discussion on the
point, they ultimately do not dispute that the section 246 charge with accompanying
gang allegation qualified as a violent felony under section 667.5, subdivision (c),
permitting the prosecutor to refile the charge a third time under 1387.1. (See People v.
Jones (2009) 47 Cal. 4th 566, 576-578 [for purposes of applying section 12022.53,
subdivision (c) sentence enhancement a section 246 conviction committed to benefit a
street gang is a felony punishable by life imprisonment]; People v. Florez (2005) 132
Cal. App. 4th 314, 318-319 [holding for purposes of limiting presentence conduct credit,
"the felony conviction for discharging a firearm at an inhabited dwelling house in
violation of section 246, committed for the benefit of a criminal street gang under section
186.22[, subdivision] (b)(4) qualifies as 'a felony offense listed in subdivision (c) of
Section 667.5' "].) However, defendants argue that as in the context of a time-barred
lesser included offense that must be dismissed on acquittal of the greater offense
(assertedly addressed in People v. Beasley (2003) 105 Cal. App. 4th 1078), once the jury
in this case found the gang allegation not true, the section 246 conviction was "defective"
and "facially not permitted" under section 1387 or 1387.1, requiring its dismissal.
Interpreting section 1387.1, the People respond that the jury's later untrue finding
on the gang allegation does not warrant overturning defendants' section 246 convictions.
9
They maintain such a result would be inconsistent with the purposes of section 1387,
which involve curtailing abuses of prosecutors' power to refile before trial, not events
occurring after the jury's verdict. The People argue that even if a crime could be barred
by a jury's later not-true finding, in this case defendants forfeited any argument to the
contrary by failing to object on that ground after the verdict.
D. Analysis
As a threshold matter, we reject the People's forfeiture argument. The underlying
facts of defendants' offenses and the dismissals are undisputed, as are the jury's verdicts
and not-true findings on the gang allegations. Thus, the interpretation and operation of
sections 1387 and 1387.1 in these circumstances is a question of law that we may
consider for the first time on appeal. (People v. Runyan (2012) 54 Cal. 4th 849, 859, fn. 3
[reviewing court "may consider new arguments that present pure questions of law on
undisputed facts"]; see People v. Gonzales (2018) 6 Cal. 5th 44, 49; but see People v.
Jones (1998) 17 Cal. 4th 279, 313 [defendant forfeited claim that section 654 barred
second prosecution for offenses by failing to object on that ground in the trial court].)
We nevertheless reject defendants' contentions. Our resolution of the issue on the
merits stands and falls on the Legislature's focus and intent behind the operation of
sections 1387 and 1387.1. The main goal of statutory interpretation is to effectuate the
Legislature's intent. (See Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal. 4th
624, 630.) Thus, "the 'plain meaning' rule does not prohibit a court from determining
whether the literal meaning of a statute comports with its purpose or whether such a
construction of one provision is consistent with other provisions of the statute . . . .
10
Literal construction should not prevail if it is contrary to the legislative intent apparent in
the statute. The intent prevails over the letter, and the letter will, if possible, be so read as
to conform to the spirit of the act." (Lungren v. Deukmejian (1988) 45 Cal. 3d 727, 735;
Riverside County Sheriff's Dept. v. Stiglitz, at p. 630; People v. Mullendore (2014) 230
Cal. App. 4th 848, 854.)
Though section 1387 states it bars "any other prosecution for the same [twice-
dismissed felony] offense,"2 the Legislature's intent was to prohibit the refiling and
pursuit of previously-dismissed charges; section 1387 does not address convictions once
charges are properly brought. (Accord, People v. Trujeque, supra, 61 Cal.4th at p. 255
[section 1387's two dismissal rule means "two previous dismissals of charges for the
same offense will bar a new felony charge," italics added].) Accounting for that, we
cannot hold a court must dismiss a defendant's felony conviction under section 1387
because following the jury's guilty verdict it no longer qualifies as a violent felony.
Section 1387.1 authorized the third filing of defendants' count 2 charge which qualified
as a violent felony due to the accompanying gang allegation; once the renewed charge
was properly refiled, it is of no consequence to defendants' speedy trial rights or any
other legislative purpose behind either section 1387 or 1387.1 that the jury rejected the
2 Black's Law Dictionary defines "prosecute" as "[t]o commence and carry out (a
legal action)." (Black's Law Dict. (11th ed. 2019) p. 1476.) Earlier versions of the legal
dictionary have explained that "[t]o 'prosecute' an action is not merely to commence it,
but includes following it to an ultimate conclusion." (Black's Law Dict. (6th ed. 1990)
p. 1221.) We will not apply the latter meaning, however, when it is contrary to the intent
and purpose of the statute. (Riverside County Sheriff's Dept. v. Stiglitz, supra, 60 Cal.4th
at p. 630.)
11
gang allegation, resulting in a nonviolent felony conviction. In that case, notwithstanding
the jury's verdict, a defendant's conviction on the base felony offense does not violate
section 1387, which merely precludes refiling and "other prosecution" of the same felony.
Defendants cursorily argue that the convictions in this case "should be treated the
same as a time-barred lesser included offense conviction." But we see no comparison
between the operation of sections 1387 and 1387.1 on the one hand, and the rule that a
court must dismiss a jury's lesser included offense conviction barred by its statute of
limitations where the pleaded felony is not time-barred. The rules in the latter
circumstance are codified in different statutes with different underlying purposes and
intentions (in part, the importance of barring stale claims). (See People v. Sedillo (2015)
235 Cal. App. 4th 1037, 1048, 1050 [applying plain language of sections 799 and 800,
which are penalty-based statutes of limitation, and holding "where . . . the jury acquits a
defendant of a premeditation finding on an attempted premeditated murder charge and the
statute of limitations has run on the attempted murder charge, the attempted murder
convictions must be dismissed"].)
II. Claim of Prosecutorial Misconduct
The trial court instructed the jury on premeditation and deliberation for the count 1
attempted murder as follows:
" 'If you find a defendant guilty of attempted murder under Count One, you must
then decide whether the People have proved the additional allegation that the attempted
murder was done willfully, and with deliberation and premeditation. [¶] . . . [¶] A
12
defendant deliberated if he carefully weighed the considerations for and against his
choice and, knowing the consequences, decided to kill.' . . . 'A defendant acted with
premeditation if he decided to kill before completing the act of attempted murder. The
attempted murder was done willfully and with deliberation and premeditation if either
the Defendant or a principal or both of them acted with that state of mind. [¶] The length
of time the person spends considering whether to kill does not alone determine whether
the attempted killing is deliberate and premeditated. The amount of time required for
deliberation and premeditation may vary from person to person and according to the
circumstances. A decision to kill made rashly, impulsively, or . . . ' with[out]3 'careful
consideration of the choice and its consequences is not deliberate and premeditated. On
the other hand, a cold, calculated decision to kill can be reached quickly. The test is the
extent of the reflection, not the length of time. [¶] The People have the burden of
proving this allegation beyond a reasonable doubt. If the People have not met this
burden, you must find that the allegation has not been proved.' " The trial court also
instructed the jury: "If you believe that attorneys' comments on the law conflict with my
instructions you must follow my instructions."
During closing arguments, the prosecutor argued that the totality of the evidence
showed the victim's shooting was not a random act but was planned and coordinated; that
the fact the defendants had gloves, loaded guns and extra magazines ready to go and the
3 The reporter's transcript appears to have a typographical error here (using "with"
instead of "without" as in the written CALCRIM No. 601 instruction), as defendants do
not argue the court misread the instruction.
13
fact they fired 24 rounds, hitting the victim who was trying to crawl to safety, made it
difficult to say they had no intent to commit murder. He then told the jury:
"And, again, as the judge explained, once you come back guilty on the attempt
murder, the next question is premeditation. Right? So the first question you're going to
ask after attempt murder is: Was this premeditated? So what does 'premeditation' mean?
It means that he took a moment to reflect, and he made a decision; right?
"So the example we commonly give is the yellow light; right? You're driving up
on the street. You see a yellow light change. It goes from green to yellow. What do you
do? You make a decision; right? You either make, 'Hit the gas,' or, 'You hit the brake.'
Now, it's quick, but you are making a decision; right? You are making an active
choice—right?—because you had the choice. You might be wrong. Maybe you hit the
gas, and it turned red on you. You run the red, and lights and sirens; right? You can
make the wrong choice, but you made a choice.
"That's different than someone who, you know, the kids are fighting in the back;
they look back, and they just drive right through. It's to make a choice.
"And, obviously, in a firearm case attempt murder can be done with anything; but
in a firearm case think about all the steps you have to do to fire a gun. You have to pull it
out. You have to point it, and you have to pull the trigger at least once; or in this case,
eight and 16 times. Okay?"
Defendants contend the prosecutor's remarks constituted prejudicial misconduct
because they misstated the law, specifically by "incorrectly conflat[ing] acting with a
specific intent to kill (basic attempted murder) with premeditation and deliberation."
14
They argue the difference between attempted murder and premeditated attempted murder
does not hinge on choosing to act versus accidentally acting; that deliberation hinges on
weighing the choice between acting and not. Defendants acknowledge that the Supreme
Court upheld a yellow-light analogy in People v. Avila (2009) 46 Cal. 4th 680, but
distinguish that case, claiming the prosecutor here did not describe the possible weighing
of considerations that might go into running a yellow light such as distance or road
conditions, but focused solely on whether the act was purposeful versus unintentional.
They argue "[i]t is reasonably likely the jury understood the prosecutor's analogy about
intentionally driving through a yellow light to mean exactly what the prosecutor said it
meant: that premeditation and deliberation requires nothing more than making a choice to
kill. That if the defendants intentionally shot at [the victim], then premeditation and
deliberation was also established."
A. Legal Principles
Prosecutors are granted wide latitude during arguments, and are permitted to draw
from matters not in evidence that are common knowledge or illustrations drawn from
common experience, history or literature. (People v. Ghobrial (2018) 5 Cal. 5th 250,
289.) A prosecutor will commit misconduct, however, " ' "when his or her conduct either
infects the trial with such unfairness as to render the subsequent conviction a denial of
due process, or involves deceptive or reprehensible methods employed to persuade the
trier of fact." [Citation.] . . . "When attacking the prosecutor's remarks to the jury, the
defendant must show" that in the context of the whole argument and the instructions there
was " 'a reasonable likelihood the jury understood or applied the complained-of
15
comments in an improper or erroneous manner.' " ' " (People v. Beck (2019) 8 Cal. 5th
548, 657; see also People v. Cowan (2017) 8 Cal. App. 5th 1152, 1159.) In conducting
this inquiry, we " ' "do not lightly infer" that the jury drew the most damaging rather than
the least damaging meaning from the prosecutor's statements.' " (People v. Centeno
(2014) 60 Cal. 4th 659, 667.) The reviewing court must consider the challenged
statements in the context of the argument as a whole to make its determination. (People
v. Cowan, at p. 1159.)
Though it is improper for a prosecutor to misstate the law (People v. Cortez (2016)
63 Cal. 4th 101, 130), such misstatements "are generally curable by an admonition from
the court." (People v. Centeno, supra, 60 Cal.4th at p. 674.) Thus, "[a]s a general rule a
defendant may not complain on appeal of prosecutorial misconduct unless in a timely
fashion—and on the same ground—the defendant made an assignment of misconduct and
requested that the jury be admonished to disregard the impropriety." (People v. Beck,
supra, 8 Cal.5th at p. 657; People v. Ghobrial, supra, 5 Cal.5th at pp. 289-290.)
B. Defendants Forfeited the Misconduct Claim
Here, neither Henderson's nor Marks's defense counsel objected to the prosecutor's
yellow light remarks on grounds the argument constituted misconduct and/or somehow
reduced the People's burden of proof on the issue of premeditation and deliberation.
They did not request an admonition from the court, which under the circumstances would
have cured any harm. Under the above-summarized principles, defendants forfeited the
claim. (People v. Ghobrial, supra, 5 Cal.5th at pp. 289-290; People v. Tully (2012) 54
Cal. 4th 952, 1037-1038; People v. Avila, supra, 46 Cal.4th at pp. 710-711.) We address
16
the arguments in any event to resolve the defendants' accompanying ineffective
assistance of counsel claim.
C. Claim of Ineffective Assistance of Counsel
" 'In order to establish a claim of ineffective assistance of counsel, defendant bears
the burden of demonstrating, first, that counsel's performance was deficient because it
"fell below an objective standard of reasonableness [¶] . . . under prevailing professional
norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that
"counsel's performance fell within the wide range of professional competence and that
counsel's actions and inactions can be explained as a matter of sound trial strategy."
[Citation.] If the record "sheds no light on why counsel acted or failed to act in the
manner challenged," an appellate claim of ineffective assistance of counsel must be
rejected "unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation." [Citations.] If a defendant meets the
burden of establishing that counsel's performance was deficient, he or she also must show
that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been
different." ' " (People v. Lopez (2008) 42 Cal. 4th 960, 966; see Strickland v. Washington
(1984) 466 U.S. 668, 690, 694.)
There are at least two reasons why defendants' ineffective assistance claim fails.
First, the record does not disclose defense counsels' reasons for remaining silent. There
is a plausible tactical reason for their omission; namely counsel could have decided to
refrain from objecting to avoid drawing the jury's attention to arguments detrimental to
17
the defense case. (See, e.g., People v. Harris (2008) 43 Cal. 4th 1269, 1290.) The
decision whether to object to an argument is an inherently tactical one that is not
ordinarily reviewable on appeal. (Harris, at p. 1290; People v. Frierson (1991) 53 Cal. 3d
730, 749.) And usually, " 'where counsel's trial tactics or strategic reasons for challenged
decisions do not appear on the record, we will not find ineffective assistance of counsel
on appeal unless there could be no conceivable reason for counsel's acts or omissions.' "
(People v. Nguyen (2015) 61 Cal. 4th 1015, 1051.) Under these principles no ineffective
assistance of counsel appears here.
Second, the argument fails for the absence of a showing of prejudice. (People v.
Fairbank (1997) 16 Cal. 4th 1223, 1241 ["If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed"]; In re Fields (1990) 51 Cal. 3d 1063, 1079.) "A defendant
must prove prejudice that is a ' "demonstrable reality," not simply speculation.' " (People
v. Fairbank, at p. 1241.) Thus, it is not sufficient to show that the alleged errors may
have had some conceivable effect on the trial's outcome. Instead, a defendant must
demonstrate a "reasonable probability" that the result would have been different were it
not for the deficient performance. (People v. Woodruff (2018) 5 Cal. 5th 697, 761-762.)
" 'A reasonable probability is a probability sufficient to undermine confidence in the
outcome.' " (Ibid., quoting Strickland v. Washington, supra, 466 U.S. at p. 694.)
As to prejudice, defendants argue the prosecutor's argument affected the
fundamental guarantee of due process and a fair trial in that it diluted the People's burden
of proof by suggesting that if the shooting was intentional, it was necessarily
18
premeditated and deliberate. The contention goes to whether the prosecutor's argument
was misconduct by misstating the law on premeditation and deliberation, not whether it is
reasonably probable the jury would have reached a different conclusion absent the
assertedly improper statements. And, we do not see the prosecutor's challenged
assertions as trivializing or impacting the burden of proof, on which the court repeatedly
and correctly instructed the jury. Defendants suggest the prosecutor's argument and the
reaction to it by defense counsel and the court is akin to what occurred in People v.
Centeno, supra, 60 Cal. 4th 659. In Centeno, involving a prosecutor's misleading
hypothetical using an image of the state of California and repeated use of the word
"reasonable," the court held it is error to suggest the prosecution's burden of proof is
satisfied if the prosecution's evidence presents a reasonable account. (Id. at pp. 670,
672.) The court explained a prosecutor may not argue that deficiencies in the defense
evidence can make up for shortcomings in the prosecution's case. (Id. at p. 673.)
Centeno held a prosecutor may not "confound[ ] the concept of rejecting unreasonable
inferences with the standard of proof beyond a reasonable doubt" by arguing the jury can
find the defendant guilty based on a "reasonable" account of the evidence. (Ibid.) The
prosecutor's remarks here are nothing like those of the prosecutor in Centeno, and as we
explain below, the evidence is nowhere near as close as in that case.4
4 In Centeno, the sole primary witness, the victim, denied her previous story and
refused to answer questions, raising serious credibility issues. (People v. Centeno, supra,
60 Cal.4th at pp. 662-664.) In her closing argument the prosecutor in part argued the
jury's decision "has to be based on reason. It has to be a reasonable account" and the
19
Here, as summarized above, the trial court admonished the jury that to the extent
an attorney's statements regarding the law conflicted with the court's instructions, then the
jury was to follow the court's instructions. It also gave the jury the legal definitions of
premeditation and deliberation, instructions that defendants do not challenge. The jury
did not express confusion or uncertainty regarding those legal definitions, and absent a
showing to the contrary, we presume the jury followed the court's instructions. (People v.
Krebs (2019) 8 Cal. 5th 265, 335.) Nothing from this record rebuts this presumption.
The jury ultimately determined that defendants' attempted murder was
premeditated and deliberate. Contrary to Henderson's claim that the evidence on
premeditation and deliberation was not overwhelming, we conclude there was abundant
trial evidence to support the jury's verdicts and findings. Defendants concede there is
"strong" evidence showing they were the individuals in the complex. The record
conclusively demonstrated defendants' intent to kill, evidenced by among other things the
fact they brought loaded firearms with them to the apartment complex, and after asking
law required them to look "at the entire picture, not one piece of evidence, not one
witness . . . ." (Id. at p. 666.) The prosecutor continued: " 'Is it reasonable to believe that
a shy, scared child who can't even name the body parts made up an embarrassing,
humiliating sexual abuse, came and testified to this in a room full of strangers or the
defendant abused Jane Doe. That is what is reasonable, that he abused her. [¶] Is it
reasonable to believe that Jane Doe is lying to set-up the defendant for no reason or is the
defendant guilty?' . . . 'Is it reasonable to believe that there is an innocent explanation for
a grown man laying [sic] on a seven year old? No, that is not reasonable. Is it reasonable
to believe that there is an innocent explanation for the defendant taking his penis out of
his pants when he's on top of a seven-year-old child? No, that is not reasonable. Is it
reasonable to believe that the defendant is being set-up in what is really a very
unsophisticated conspiracy led by an officer who has never met the defendant or he['s]
good for it? That is what is reasonable. He's good for it.' " (Ibid.)
20
the victim where he was from and whether he was a gang member, drew their weapons
and shot at the victim no less than 24 times as he dropped to the ground and tried to crawl
to safety. This evidence overwhelmingly suggests the defendants had ample time to
consider and reflect before firing their guns at him while he tried to get away.
Defendants point out the jury did not find the gang allegation to be true, suggesting that if
the jury did not find a gang motive, it may not have thought defendants entered the
apartment complex looking for trouble, but rather based their premeditation finding on
evidence the defendants made a rash decision to shoot in an instant. But as the People
point out, the jury was instructed that the People were not required to prove motive for
any allegation, thus the jurors may not have rejected a gang motive even while finding
the allegation untrue. Based on this record, defendants have failed to demonstrate a
"reasonable probability" that the result would have been different in count 1 had their
trial counsel objected to the prosecutor's challenged statements. (See People v. Woodruff,
supra, 15 Cal.5th at p. 762.) The evidence overwhelmingly demonstrated not only
defendants' guilt for attempted murder, but that the attempted murder was premeditated
and deliberate. As such, defendants have not shown the required prejudice to establish
ineffective assistance of counsel, and this claim fails. (See Strickland v. Washington,
supra, 466 U.S. at p. 687; People v. Lucas (1995) 12 Cal. 4th 415, 436.)
III. Henderson's Challenge to the Count 2 Consecutive Sentence
At sentencing, the People asked the court to impose a consecutive sentence on
Henderson in view of the multiple victims, including children, who were sleeping in their
homes when the defendants fired their weapons. Acknowledging it had discretion on that
21
point, the court reviewed the considerations under California Rules of Court, rule 4.425
in making its decision whether to sentence Henderson concurrently versus
consecutively.5
Ultimately, the court adopted the People's position, stating: "Although it is a close
decision, the court agrees ultimately with the prosecution. I will make the term on count
2 consecutive to the term on count 1. [¶] The court's reasoning is as follows: And I
think a major factor on that is Mr. Henderson's prior conviction of a violent felony
involving a firearm, his sentence of 12 years in prison on that case. He was still on parole
on that case. He was the one that I think brought the people to the apartment complex.
5 "The court: The factors that are suggested in [California Rules of Court, rule
4.425] for the court to consider in concurrent versus consecutive are, (Reading:) [¶]
'Were the crimes or . . .' 'objectives predominantly independent . . . ' So I think that's a no
probably. [¶] Were they, (Reading:) [¶] '. . . committed at different times or separate
places . . . ' 'or a single period of aberrant behavior.' [¶] Probably a single period of
aberrant behavior. [¶] The third factor: Separate acts of violence or threats of violence. I
think they were; because, as [the prosecutor] pointed out, there were different [sic].
There was the victim of the shooting, and then there were those people in the house
sleeping. It's kind of a different or distinct victim. [¶] . . . [¶] And the court has a
discretion [sic] to consider anything else. I don't think the court is limited. [¶] And I
think against Mr. Henderson is the fact that he has a prior violent felony, even though it
was not immediate. It was in 2011 or 2009 was the date of the arrest for the robbery,
attempted murder that ended up being assault with a firearm. That's certainly something
against Mr. Henderson. [¶] Mr. Henderson was the only person in the trial where
gang—I think it was the clearest on Mr. Henderson that he was involved with the gang.
[¶] In favor of Mr. Henderson is the fact that the jury did not find true the . . . gang
enhancement. And, also, that it appeared—although it wasn't clear—that he was the
driver. I think—well, he was the driver. I think that was clear. It was fairly clear he may
not have been a shooter in the case. So those are things that favor him. [¶] The things
that don't favor him are the violent felony, and the fact that he was driving and probably
brought them to the place, and that he was the only one that had the gang affiliation, and
the fact there were two separate victims."
22
He was the one that had the gang affiliation. And so those factors in the court's mind
outweigh the factors that argue for a concurrent sentence. And I also feel those people in
the apartment were seriously victimized by the shooting. [¶] So the court is required . . .
to give a statement of reasons, and those are the court's reasons for the consecutive
sentence."
When sentencing codefendant Marks, the court elected to run the count 2 sentence
concurrently, stating: "Even though it is a very close call, and I think it could go either
way, I think, Mr. Marks, I'm going to give you the benefit of the doubt based on—I think
a major factor for Mr. Henderson was the 12 years prison sentence on the violent felony
that he committed, and Mr. Marks doesn't have that history. So . . . based on that, the
court is going to do it concurrently."
Henderson contends the trial court erred by imposing a consecutive sentence on
his count 2 conviction while at the same time sentencing codefendant Marks
concurrently. Though Henderson acknowledges his counsel did not object at the time, he
maintains there was no forfeiture because given the court's recitation of additional factors
sufficient to support the consecutive sentence, an objection would not have been
appropriate, and it only later became apparent that the court was relying so heavily on his
prior felony conviction at Marks's sentencing hearing, at which he and his counsel were
not present, giving him no meaningful opportunity to object. Henderson argues the
consecutive sentence must be stricken because it is apparent from the court's remarks
during codefendant Marks's sentencing hearing that the reason for the sentence was his
prior felony and not the other factors, which amounts to an improper dual use of the same
23
fact for the court's imposition of the five-year enhancement under section 667,
subdivision (a). According to Henderson, but for the court's reliance on the
impermissible prior conviction—the "major factor" in the court's decision—it is
reasonably probable he would have been sentenced differently. The People concede that
the trial court erred if it used Henderson's 2011 prior conviction to impose the serious
felony prior conviction enhancement and the consecutive sentence on count 2, but they
argue the error was harmless because the court considered other factors.
Because we are vacating Hernandez's sentence and remanding for further
sentencing proceedings, we need not decide whether the trial court abused or was within
its broad discretion in imposing a concurrent prison term on count 2. (People v. Clancey
(2013) 56 Cal. 4th 562, 579 [court has broad discretion to decide whether to run prison
terms on multiple offenses concurrently or consecutively].) On remand, the trial court
must resentence Hernandez after deciding whether to exercise its discretion to strike his
five-year prior serious felony enhancement (see part VI, post). If the court elects
consecutive sentences it must state reasons for its decision. (People v. Sperling (2017) 12
Cal. App. 5th 1094, 1103 ["A trial court is required to state its reasons for imposing
consecutive sentences"]; see Cal. Rules of Court, rule 4.406(b)(5).) And while "[o]nly
one criterion or factor in aggravation is necessary to support a consecutive sentence"
(People v. Davis (1995) 10 Cal. 4th 463, 552; see People v. King (2010) 183 Cal. App. 4th
1281, 1323), the trial court is precluded from using the same facts to impose a
consecutive sentence and otherwise enhance Hernandez's prison sentence. (See Cal.
Rules of Court, rule 4.425(b)(1).)
24
IV. Claim of Racially Discriminatory Peremptory Challenge
Defendants contend the trial court erred by denying Henderson's motion in which
he asserted the prosecutor exercised his first peremptory challenge against one of two
African-American jurors in the jury box in violation of Batson v. Kentucky (1986) 476
U.S. 79 and People v. Wheeler (1978) 22 Cal. 3d 258 (collectively Batson/Wheeler). In
denying the motion, the trial court found Henderson, who is African-American, had made
out a prima facie case of discrimination, but ruled it believed the prosecutor excused the
juror for a nondiscriminatory purpose: because the juror complained about an important
work conference she had to attend and the prosecutor did not want a distracted or
frustrated person serving on the jury.
A. Background
Jury selection in defendants' case occurred over the course of several days in early
October 2017. Beforehand, the trial court told the prospective jurors the trial schedule
would require them to return to court the last two weeks of the month. During
questioning, one of the jurors, prospective juror No. 12 in seat 8 (referred to by the
parties as J12-8), advised the court and counsel that she had a prepaid work conference to
attend later that month, and that if she missed it, her employer, a school district, would be
out $500. She later described it as a very important and "legendary" conference.
The following day, in response to the court's questioning, prospective juror No. 12
informed the court that nobody else could go to the conference in her place. After she
was placed in the jury box, she answered questions about her background and said she
could be a fair juror. She stated that though she had family in law enforcement, she
25
would be open to considering a law enforcement officer witness's credibility. She agreed
she could focus on the jury instructions and follow the law.
After the court proceeded to allow peremptory challenges the next day, counsel
revisited the issue with prospective juror No. 12 after telling the jurors their job was to
figure out the truth, and to look at the total case as a package:
"[Prosecutor]: [Prospective juror No.] 12, are you okay with that? You're quiet
this morning, so I'm going to—
"The court: She wants to go to her conference.
"[Prosecutor]: I know. She's like, 'What do I say to get out of here?" Well,
should we just talk about that now? [¶] How important is this conference for you?
"[Prospective juror No. 12]: It's very important.
"[Prosecutor]: Okay. And I talked about that positive attitude. I don't want
to stick the other 11—I don't think you're a negative person; but if you're bothered by it,
or upset by it—
"[Prospective juror No. 12]: Yes.
"[Prosecutor]: —I don't want that either.
"[Prospective juror No. 12]: I have a positive attitude generally. I am bothered
by it, only because it was prearranged and prepaid, and I would—I would sit on a trial,
which I have June of 2016, but because of that, I am you know, but I'll do what I have to
do and what I'm told to do; but I'm just if—if you want honesty, you know, I would like
to. And, you know, and everybody's—every attorney has made a comment about it, and
it kind of got a little complex, because you asked for the truth, and I—I said I had
26
something pre-arranged. And it's not just going. It's just the idea that it was pre-
arranged, prepaid, and it's professional development. And had the trial not involved
those dates, that would be different.
"[Prosecutor]: That's fair. [¶] And I think jury duty's never convenient.
"[Prospective juror No. 12]: Right. I—I get that.
"[Prosecutor]: Nobody ever gets the mail and goes, 'Yes'—
"[Prospective juror No. 12]: I know.
"[Prosecutor]: —"finally."
"[Prospective juror No. 12]: Right.
"[Prosecutor]: But I don't think it should be overly onerous. . . . I don't want
someone to—you know, I don't want—it's going to bother everybody. It's going to be a
distraction for everybody. I don't want it to overly burden anybody. I don't think that's
fair.
"[Prospective juror No. 12]: And I did serve in June the first day of my summer
break, so—
"[Prosecutor]: You've paid the price. You're saying you already paid a little bit. I
got it.
"[Prospective juror No. 12]: So I didn't say, 'Oh, it's my summer break.' I served.
"[Prosecutor]: . . . I understand where you're coming from, and I appreciate it;
and it's not to pick on you. It's that—
"[Prospective juror No. 12]: I know.
27
"[Prosecutor]: —everything else about you says, 'Great juror.' So I hate to lose
you, but I—I also don't want this to be a burden.
"[Prospective juror No. 12]: All right.
"[Prosecutor]: Okay."
After questioning other prospective jurors, the prosecutor exercised his first
peremptory challenge by excusing prospective juror No. 12. The trial court remarked:
"Enjoy your conference."
Following the challenge, Henderson's counsel made his Batson/Wheeler motion,
which the other counsel declined to join. He argued Henderson was African-American
and thus in a protected class, and it was important that he have people with similar
backgrounds on the jury. Counsel argued that because prospective juror No. 12 said she
could be fair and apply the law, the only reasonable inference of counsel's challenge was
to eliminate a person in the same protected class as Henderson. The prosecutor argued a
prima facie case had not been made as there was still an African-American male in the
jury box, and there were several African-Americans in the general panel. The court
found a prima facie case had been made as "[t]he client of the [objecting] counsel . . . is a
member of that class, and . . . it is one of only two that's on the jury."
Asked to explain why he exercised the challenge, the prosecutor said: "I find
[prospective juror No.] 12 would have been a very good juror, but she's been mentioning
her conference since the first minute we walked in, and she mentioned it at hardships.
She's mentioned it multiple times yesterday, and she's mentioned it multiple times today.
And I've made a very active point, and I'll continue to make it, which is I don't want
28
jurors who are distracted or in any way frustrated at having to serve at this time because
of something going on in their lives. And I think [prospective juror No.] 12 has been
very clear and very deliberate about that. Otherwise, I would have kept her. She looks
like a great juror, but I'm not going to treat her differently than anybody else."
The trial court denied the Batson/Wheeler motion: "I listened carefully to [the
prosecutor's] questioning, and there is very strong conviction in my mind that that was
the reason that he excused her, the reason that he stated, and it was not for a
discriminatory or prohibited purpose."
B. Legal Principles
The California Supreme Court recently set forth the relevant law: " 'Both the state
and federal Constitutions prohibit the use of peremptory challenges to remove
prospective jurors based on group bias, such as race or ethnicity.' " (People v. Rhoades
(2019) 8 Cal. 5th 393, 423, quoting Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22
Cal.3d at pp. 276-277.) " '[T]here "is a rebuttable presumption that a peremptory
challenge is being exercised properly, and the burden is on the opposing party to
demonstrate impermissible discrimination." ' " (People v. Armstrong (2019) 6 Cal. 5th
735, 766.)
On a Batson/Wheeler motion, the following procedures apply: " ' "First, the
defendant must make out a prima facie case 'by showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose.' [Citation.] Second, once the
defendant has made out a prima facie case, the 'burden shifts to the State to explain
adequately the racial exclusion' by offering permissible race-neutral justifications for the
29
strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must
then decide . . . whether the opponent of the strike has proved purposeful racial
discrimination.' " ' " (People v. Rhoades, supra, 8 Cal.5th at p. 423; People v. Smith
(2018) 4 Cal. 5th 1134, 1147.) The defendant throughout retains the ultimate burden of
persuasion regarding discriminatory motive. (Smith, at p. 1147.)
Once a defendant satisfies his or her burden to make a prima facie showing of
group bias, the adequacy of the prima facie showing becomes moot and the reviewing
court skips to the third stage to decide whether the trial court properly credited the
prosecutor's reasons for challenging the prospective jurors in question. (People v. Smith,
supra, 4 Cal.5th at p. 1147.) At this third stage, the moving defendant must show it was
more likely than not that the challenge was improperly motivated. (People v. Armstrong,
supra, 6 Cal.5th at p. 766; People v. Woodruff, supra, 5 Cal.5th at p. 753.) It is the
"genuineness of the justification offered, not its objective reasonableness, [that] is
decisive." (Armstrong, at p. 767.) " '[T]he "critical question . . . is the persuasiveness of
the prosecutor's justification for his peremptory strike." [Citation.] Usually, "the issue
comes down to whether the trial court finds the prosecutor's race-neutral explanations to
be credible. Credibility can be measured by, among other factors, the prosecutor's
demeanor; by how reasonable, or how improbable, the explanations are; and by whether
the proffered rationale has some basis in accepted trial strategy." [Citation.] " 'As with
the state of mind of a juror, evaluation of the prosecutor's state of mind based on
demeanor and credibility lies "peculiarly within a trial judge's province." ' " [Citation.]
Thus, in reviewing a trial court's reasoned determination that a prosecutor's reasons for
30
striking a juror are sincere, we typically defer to the trial court and consider only
"whether substantial evidence supports the trial court's conclusions." ' " (Smith, at p.
1147; see Woodruff, at p. 753.)
" '[O]ne form of circumstantial evidence that is relevant, but not necessarily
dispositive, on the issue of intentional discrimination' is a comparison of the treatment of
an excused juror with other similarly situated jurors. [Citation.] '[E]vidence of
comparative juror analysis must be considered . . . even for the first time on appeal if
relied upon by the defendant [if] the record is adequate to permit the urged comparisons.'
[Citation.] But when, as here, a defendant 'wait[s] until appeal to argue comparative juror
analysis,' our 'review is necessarily circumscribed,' and we 'need not consider responses
by stricken panelists or seated jurors other than those identified by the defendant.'
[Citation.] We review the trial court's ruling on the question of purposeful racial
discrimination under a deferential substantial evidence standard, so long as ' "the trial
court has made a sincere and reasoned attempt" ' to evaluate each nondiscriminatory
justification offered." (People v. Smith, supra, 4 Cal.5th at pp. 1147-1148.)
C. Analysis
Defendants contend that had the court considered a comparative juror analysis,
comparing the People's treatment of prospective juror No. 12 with other similarly situated
jurors, it would have concluded the prosecutor's primary motivation behind his
peremptory challenge was race-related. Defendants refer to one other juror, prospective
juror No. 1, who they infer was not African-American, and her answers indicating she
could be fair and follow the court's instructions, but nevertheless did not want to serve as
31
a juror. Defendants point out the prosecutor did not excuse prospective juror No. 1 but
excused prospective juror No. 12, suggesting he had the latter juror's race in mind when
he made his challenge. According to defendants, the exclusion of even one prospective
juror for impermissible race-motivated reasons is structural error requiring reversal.
As a threshold matter, defendants' counsel did not raise any issue of comparative
analysis in the trial court, and thus the People were not given an opportunity to explain
perceived differences between seated jurors and prospective juror No. 12. (Accord,
People v. Bryant (2019) 40 Cal. App. 5th 525, 542, citing People v. Lenix (2008) 44
Cal. 4th 602, 623; People v. Winbush (2017) 2 Cal. 5th 402, 442 [" ' "a formulaic
comparison of isolated responses [is] an exceptionally poor medium to overturn a trial
court's factual finding" ' " concerning the subjective reasonableness of a prosecutor's
proffered reasons for excusing a juror].) "As our Supreme Court explained in Lenix,
'comparative juror analysis on a cold appellate record has inherent limitations. [Citation.]
. . . On appellate review, a voir dire answer sits on a page of transcript. In the trial court,
however, advocates and trial judges watch and listen as the answer is delivered. Myriad
subtle nuances may shape it, including attitude, attention, interest, body language, facial
expression and eye contact.' [Citation.] While we may consider comparative juror
analysis for the first time on appeal, the record must be adequate to allow such
comparison." (Bryant, at p. 542; see also People v. Armstrong, supra, 6 Cal.5th at p.
780.)
Here, we cannot say the record is adequate to permit the necessary comparison.
Proceeding to that analysis in any event based on the portions of the record highlighted
32
by defendants on appeal, we are compelled to uphold the trial court's ruling. "As our
high court has explained, for a comparative analysis to be probative, a seated juror must
have a ' "substantially similar combination of responses," in all material respects' to an
excused juror. [Citation.] 'Although jurors need not be completely identical for a
comparison to be probative [citation], "they must be materially similar in the respects
significant to the prosecutor's stated basis for the challenge." ' " (People v. Bryant, supra,
40 Cal.App.5th at p. 540, quoting People v. Winbush, supra, 2 Cal.5th at p. 443.)
We see no such material similarity in the responses of prospective juror No. 1 and
prospective juror No. 12. In response to questioning, prospective juror No. 1 stated she
would try to come with an open mind and listen to all the evidence, and agreed her job
was to deliberate with the other jurors. She agreed she was comfortable with the idea of
talking to and learning from the other jurors but reaching her own decision. Prospective
juror No. 1 then indicated she had never before served on a jury. Defense counsel asked
if she wanted to serve in this case, and she responded: "I guess it would be—I guess.
Not—to be honest, not really." When asked why, she said, "I don't know. I just I don't
know. I just don't really want to be here." Acknowledging she could not leave unless she
was excused, she stated she would "[n]ot serve" because of "[t]he job itself" if given a
choice, stating, "I just don't know if I would be able to—I don't know. I just don't know
if I would be able to just sit here, and have to listen to everything, and just I don't know.
These are people's lives that I don't know if I'm—I'm not sure if I would make the right
decision." When asked whether if forced to be on the jury she would be the kind of juror
defense counsel would want, she said, "No."
33
This by no means reflects a " 'substantially similar combination of responses,' in
all material respects, to [prospective juror No. 12]." (People v. Winbush, supra, 2 Cal.5th
at p. 442.) Prospective juror No. 12 expressed reticence in serving as a juror only
because of a prepaid, important work-related conference she wished to attend, not
because she felt incompetent to make a proper decision in the case. Her responses and
attitude were entirely unlike those of prospective juror No. 1.
Here, the trial court considered and evaluated the genuineness and neutrality of the
prosecutor's stated reasons for excusing prospective juror No. 12, taking him at his word
and finding his peremptory challenge was supported by a permissible motive. Its
credibility determination is amply supported by prospective juror No. 12's repeated focus
on her desire to attend her work-related event. Applying the appropriate deferential
standard of review, we conclude substantial evidence supports the trial court's assessment
of the prosecutor's stated reasons. (People v. Smith, supra, 4 Cal.5th at p. 1147.)
V. Reconsideration Under Senate Bill No. 1393
Both Henderson and Marks were sentenced in January 2018. Effective January 1,
2019, while their appeals were pending, the Legislature enacted Senate Bill No. 1393,
which amended sections 667, subdivision (a)(1) and 1385, subdivision (b) to give trial
courts discretion to dismiss, in the interest of justice, five-year prior serious felony
enhancements. (People v. Jimenez (2019) 32 Cal. App. 5th 409, 426; People v. Garcia
(2018) 28 Cal. App. 5th 961, 971.) Under the versions of those statutes applicable when
the court sentenced the defendants, the court had no such discretion, but instead was
required to impose an additional five-year consecutive term for " 'any person convicted of
34
a serious felony who previously had been convicted of a serious felony.' " (Garcia, at p.
971; see People v. Franks (2019) 35 Cal. App. 5th 883, 892.)
"[I]t is appropriate to infer, as a matter of statutory construction, that the
Legislature intended [Senate Bill No.] 1393 to apply to all cases to which it could
constitutionally be applied, that is, to all cases not yet final when [Senate Bill No.] 1393
becomes effective on January 1, 2019." (People v. Garcia, supra, 28 Cal.App.5th at p.
973.) The People concede Senate Bill No. 1393 applies retroactively to both Henderson's
and Marks's nonfinal cases. " '[W]hen the record shows that the trial court proceeded
with sentencing on the . . . assumption it lacked discretion, remand is necessary so that
the trial court may have the opportunity to exercise its sentencing discretion at a new
sentencing hearing.' " (People v. McDaniels (2018) 22 Cal. App. 5th 420, 425.) Remand
is not required, however, if "the record shows that the trial court clearly indicated when it
originally sentenced the defendant that it would not in any event have stricken [the
previously mandatory] enhancement." (Ibid.; People v. Franks, supra, 35 Cal.App.5th at
p. 892; People v. McVey (2018) 24 Cal. App. 5th 405, 419.)
The People concede that the trial court here gave no such indication. (Compare,
People v. Franks, supra, 35 Cal.App.5th at p. 893 [record affirmatively showed trial
court would not exercise its discretion to strike prior serious felony enhancement when it
said, " 'I will not exercise my discretion, which I might have, to strike the punishment of
either the strike prior or the 667(a) five-year prior that is to be imposed in this case' "].)
We agree with the People's concession, and conclude remand is appropriate to permit the
trial court to exercise its discretion whether to strike the prior serious felony
35
enhancements. We express no opinion on how the trial court should exercise its
discretion on remand. (See People v. Jimenez, supra, 32 Cal.App.5th at p. 426.)
DISPOSITION
The sentences of Hernandez and Marks are vacated and the matters remanded with
directions that the trial court resentence both defendants and in doing so determine (1)
whether to impose a consecutive or concurrent sentence for Hernandez's count 2
conviction; and (2) whether to strike Hernandez's and Marks's five-year enhancement
under Penal Code sections 667, subdivision (a)(1) and 1385. In all other respects the
judgments are affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
36 | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2261750/ | 861 F.Supp. 622 (1994)
Trina WYNN, Plaintiff,
v.
Charles V. MORGAN, Defendant.
No. CIV. 3-93-cv-548.
United States District Court, E.D. Tennessee, at Knoxville.
July 8, 1994.
*623 *624 Gloria S. Moore, Moore & Clark, Knoxville, TN, for plaintiff.
J. Robert Walker and Ronald C. Leadbetter, Office of Gen. Counsel, University of Tennessee, Knoxville, TN, for defendant.
MEMORANDUM OPINION
PHILLIPS, United States Magistrate Judge.
This matter is before the undersigned pursuant to the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(c), by consent of the parties, and by order of reference from the Honorable Thomas G. Hull, United States District Judge [Doc. 22].
This case was originally brought against the University of Tennessee, at Knoxville, and officer Charles V. Morgan, Badge No. 148, Unit 49, University of Tennessee Police Force, individually and as a police officer for the University of Tennessee at Knoxville, Tennessee [Doc. 1]. However, by order filed January 13, 1994, plaintiffs' claims against the University of Tennessee and Officer Charles V. Morgan, in his official capacity, were dismissed under Rule 12(b)(6), Federal Rules of Civil Procedure [Doc. 14]. Thus, the only remaining defendant is Charles V. Morgan in his individual capacity.
Defendant Morgan has now moved for summary judgment [Doc. 16], supported by memorandum [Doc. 16a], and plaintiff has responded in opposition [Doc. 19]. As the bases for his motion for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, defendant asserts that he has not deprived plaintiff of any right guaranteed by the Fourth, Fifth, Eighth, or Fourteenth *625 Amendments to the United States Constitution, that plaintiff has failed to state a claim under 42 U.S.C. § 1981 upon which relief can be granted, and that defendant is entitled to qualified immunity [Doc. 16].
In response, plaintiff asserts that her cause of action alleges violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States and 42 U.S.C. §§ 1981, 1983, and 1988, alleging deprivation of plaintiff's constitutional rights to be secure in her person, right to be free from malicious prosecution, right to be free from cruel and unusual punishment, and right to due process. She also asserts that this action is before the court on pendent jurisdiction of state claims of false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, outrageous conduct, negligence, gross negligence, and negligent hiring, retention, supervision and training in violation of the laws of the state of Tennessee [Doc. 19].
As correctly pointed out by plaintiff, defendant previously moved under Rule 12(b)(6) to dismiss this cause of against him individually, asserting that as an employee of the state of Tennessee, he is absolutely immune from suit under Tennessee Code Annotated § 9-8-307(h) (Supp.1993). The district court ruled that this section of Tennessee Code Annotated immunizes state officers and employees from liability for acts or omissions within the scope of their employment, except for willful, malicious, or criminal acts or omissions or acts or omissions done for personal gain. However, the court ruled, the claims asserted by plaintiff in this lawsuit appear to be predicated on deliberate misconduct and the court held that no federal claim and no state law claim based upon deliberate misconduct would be dismissed at that time [Doc. 11]. The district court subsequently dismissed plaintiff's cause of action as to the University of Tennessee and Officer Morgan in his official capacity [Doc. 14], but did not alter or otherwise amend its ruling in regard to defendant in his individual capacity.
I. STATEMENT OF FACTS
In her complaint, plaintiff alleges that on or about September 20, 1992, she was the driver of an automobile traveling east in the far right lane on Cumberland Avenue in Knoxville, Tennessee, when a University of Tennessee police car traveling west abruptly entered into plaintiff's lane of travel, within approximately a 20-foot distance between her vehicle and the police vehicle. At the time the University of Police car entered plaintiff's lane, there were no flashing lights or sirens used and no indication that the University of Tennessee police car was in an emergency, and that after traveling approximately three additional blocks, plaintiff heard the sound of sirens coming from behind her vehicle and observed flashing blue lights in her rear view mirror. Plaintiff alleges that she pulled her vehicle over at the intersection of Cumberland and Estrabrook, two University of Tennessee police cars pulled over behind her, and Officer Charles V. Morgan approached her car and asked her to get out of her car. Officer Morgan asked plaintiff if she had been drinking, and she replied negatively.
When plaintiff inquired of Officer Morgan why he had stopped her, he replied that she drove on the yellow line. Officer Morgan asked to give plaintiff a field sobriety test, to which she agreed, and Officer Morgan had plaintiff to say the alphabet, stand on one leg at a time, and count one through nine. Officer Morgan then told plaintiff to count one through 30, and once again asked plaintiff to say her alphabet. Officer Morgan asked plaintiff to walk a straight line counting one through nine, he had her walk a straight line counting one through nine and shined a penlight in her eyes, moving it backward and forward.
Plaintiff asserts that after she took the field sobriety test, defendant told her everything was okay but that he wanted her to take breathalyzer test, to which she consented. Plaintiff turned around and walked to the end of her vehicle, defendant asked her to approach him and turn around, she turned around and defendant patted her down and hand cuffed her from the back. Plaintiff asked defendant why she was being placed under arrest, and he replied for DUI. Plaintiff replied that she had agreed to take the breathalyzer test or a blood test, but defendant *626 then replied that she had refused to take the breathalyzer test, grabbed her, and forced her into the police cruiser. She asserts that defendant arrested her without cause or justification, harassed her by forcing her to endure pseudo-sobriety tests and refused to give her a breathalyzer or blood test after she consented to such to determine whether she was driving under the influence of drugs or intoxicants.
Plaintiff was placed under arrest by defendant and taken to the Knox County jail where she remained in police custody until bail was posted. Plaintiff was charged with resisting arrest and driving under the influence. She also asserts that after she had taken the field sobriety tests, defendant told her everything was okay but that he wanted to give her the breathalyzer test and that plaintiff agreed to take the test. However, she asserts, rather than being given a breathalyzer test or a blood test, defendant frisked her, placed her in handcuffs, and placed her under arrest [Docs. 1, 19].
In support of his motion for summary judgment, defendant has filed his affidavit which sets forth that he is a police officer employed by the University of Tennessee, acting under the authority granted the University of Tennessee police officers pursuant to the laws of the state of Tennessee. He relates that on September 20, 1992, he placed plaintiff under arrest for driving under the influence based upon his perception and belief that she had been driving recklessly and under the influence of drugs. In addition, he charged plaintiff with resisting arrest based upon his perception and belief that she unlawfully attempted to avoid arrest.
He asserts that the specific behavior leading him to those conclusions was: (1) At approximately 12:30 a.m. on September 20, 1992, he was on duty patrolling the U-T campus in a U-T police cruiser. (2) He was traveling in the left east-bound lane of Cumberland Avenue adjacent to the U-T campus when he noticed plaintiff's vehicle crossing over into his lane from the east-bound right lane. (3) He swerved into the west-bound lane to avoid a collision with plaintiff's vehicle since her vehicle crossed all of the way into the left lane of traffic, swerved back into the right lane of traffic, and continued traveling east-bound. (4) He pulled into the right lane behind plaintiff, activated his emergency lights, and briefly hit his siren in an attempt to pull her vehicle over. (5) When plaintiff's vehicle finally stopped, he notified police headquarters that he had effected a traffic stop, called out the license plate number, and turned his spotlight on the rear of plaintiff's vehicle. (6) He then got out of his automobile and began approaching plaintiff's vehicle, but when he got approximately halfway to plaintiff's car, she accelerated and left the scene. (7) Believing that plaintiff was deliberately fleeing, defendant ran back to his vehicle, notified the station that he was in pursuit, activated his siren, and began to pursue plaintiff's car. (8) He pursued plaintiff's car until another U-T patrol car pulled into the east-bound lane partially blocking it, and plaintiff's vehicle then made a right-hand turn onto Estrabrook Drive and stopped. (9) After stopping, plaintiff got out of her car and began yelling at him, but at his request, she agreed to take field sobriety tests after initially refusing to do so. (10) He then administered the three standardized field sobriety tests to plaintiff in the manner instructed at the Tennessee Law Enforcement Training Academy at Donelson, Tennessee. (11) These tests are walk and turn, the one-leg stand, and the horizontal gaze nystagmus. (12) Based upon defendant's observations of plaintiff's driving behavior and his judgment that she failed all three sobriety tests, he concluded that plaintiff had been driving while under the influence of an intoxicant or other stimulant in violation of state law, and placed her under arrest. (13) When defendant requested plaintiff to turn around and put her hands behind her back for the purpose of placing handcuffs on her wrists, plaintiff abruptly and forcefully pulled away from him and started running back to her car. (14) Defendant ran after plaintiff, caught her by the arms, and put handcuffs on her wrists. (15) Based upon these circumstances, defendant concluded that plaintiff was attempting to avoid arrest in a manner justifying the additional charge of resisting arrest.
*627 Defendant asserts that at no time did he use force in excess of that which he believed to be necessary to bring plaintiff under control and accomplish her arrest, and that the procedures used in arresting plaintiff were fully consistent with the training he had received at the Tennessee Law Enforcement Training Academy, pointing out that all University of Tennessee police officers are required to undergo such training before being commissioned to serve as police officers for the University of Tennessee [Doc. 16, Morgan Aff. attached].
Defendant has also attached to his motion portions of the discovery deposition of plaintiff Trina Wynn taken on March 2, 1993, in a related case (Clifford E. Bishop v. University of Tennessee at Knoxville, Case No. 3-92-785), wherein plaintiff denies that she had anything to drink on the evening of September 20, 1992, but that as an epileptic, she has to take medication on a continuing basis, and at the time of the incident about which plaintiff now complains she was taking Tegretol [Doc. 16, Wynn Dep., p. 69]. Plaintiff also related in her deposition that she did not at any time see a police cruiser along side of her as she traveled down Cumberland Avenue on September 20, 1992, that she was traveling with a friend, Clifford Bishop, that the traffic was pretty heavy, and that she later had her medication changed because Tegretol caused some side effects [Doc. 16, Wynn Dep., pp. 19, 68]. Plaintiff further testified that Officer Morgan was polite to her, that he did not treat her in any way that was unduly rough, did not beat her, did not hit her, did not strike her, did not shove his hand in her face, did not poke with his night stick, did not push her so that she lost her balance, but that he did grab her arm and pushed her or shoved her into the patrol car. However, she further testified that defendant did not push her so hard that she fell over when she got into the police cruiser [Doc. 16, Wynn Dep. pp. 37-38].
In regard to the side effects caused by the Tegretol, plaintiff testified that she experienced "staring" spells and hair loss, that all of a sudden her mind would wander off, that it was similar to having a seizure but that she was not having one, that it is like having a mind seizure, and that she would often have these "staring" spells, on a daily or weekly basis [Doc. 16, Wynn Dep., p. 127].
Defendant has filed, in support of his motion for summary judgment, the affidavit of Edwin A. Smith, Pharm.D., a licensed pharmacist in the state of Tennessee, who is a clinical specialist in the Department of Pharmacy at the University of Tennessee Medical Center. Dr. Smith states in his affidavit that based upon his training, experience and practice of his profession, he is personally familiar with the applicable standards of acceptable medical care as it applies to pharmacology, that he is familiar with the anti-convulsant drug Carbamazepine, product name Tegretol, and that he is aware of the clinical pharmacology, the precautions and the possible adverse reactions of Tegretol. Dr. Smith relates that he is aware that the precautions for taking Tegretol include warnings about the hazards of operating automobiles while taking this medication as cited in the Physician's Desk Reference, (PDR). Dr. Smith further states that he is aware of the possible adverse neurological and sensory effects of Tegretol including but not limited to dizziness, drowsiness, disturbance of coordination and nystagmus as cited in the PDR, and Dr. Smith attaches to his affidavit materials from the PDR, relating that, since dizziness and drowsiness may occur, patients should be cautioned about the hazards of operating machinery or automobiles or engaging in other potentially dangerous tasks while taking such medication [Doc. 16, Smith Aff. w/attachment].
II. DISCUSSION OF RULE 56, FEDERAL RULES OF CIVIL PROCEDURE
Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment shall be rendered forthwith 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 a judgment as a matter of law. Three recent decisions of the United States Supreme Court, referred to by some commentators as the summary judgment trilogy,[1]*628 have placed new emphasis upon the early disposition of cases which fall within the ambit of Rule 56, Federal Rules of Civil Procedure. An excellent analysis of the Supreme Court's decisions in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); and Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), is found in Street v. J.C. Bradford Co., 886 F.2d 1472 (6th Cir.1989). In that decision, Judge Bertlesman painstakingly analyzed the Supreme Court's decisions and set forth the following directives to be gleaned from the Court's rulings:
1. Complex cases are not necessarily inappropriate for summary judgment.
2. Cases involving state of mind issues are not necessarily inappropriate for summary judgment.
3. 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.
4. 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.
5. A court should apply a federal directed verdict standard in ruling on a motion for summary judgment. The inquiry on a summary judgment motion or a directed verdict motion is the same: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
6. As on federal directed verdict motions, the "scintilla rule" applies, i.e., the respondent must adduce more than a scintilla of evidence to overcome the motion.
7. The substantive law governing the case will determine what issues of fact are material, and any heightened burden of proof required by the substantive law for an element of the respondent's case, such as proof by clear and convincing evidence, must be satisfied by the respondent.
8. 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."
9. 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.
10. 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."
Street v. J.C. Bradford Co., supra at 1479-1480.
The bottom line of the summary judgment trilogy of cases is that the court, when ruling upon a motion for summary judgment after the parties have had adequate time to develop their proof, must consider the motion as it would on a motion for judgment as a matter of law after the plaintiff has presented his proof and rested his case. The moving party 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, but if the evidence does not present a sufficient disagreement to require submission to a jury and the responding party has not adduced more than a scintilla of evidence and the record taken as a whole could not lead a rational trier of fact to find for the respondent, the motion should be *629 granted. Street v. J.C. Bradford Co., supra, at 1479-1480.
Rule 56(e), Federal Rules of Civil Procedure, stipulates that supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
III. DISCUSSION OF APPLICABLE AUTHORITIES
Plaintiff's federal cause of action is brought under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §§ 1981, 1983, and 1988. Plaintiff also invokes this court's pendent jurisdiction of state claims of false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, outrageous conduct, negligence, gross negligence, and negligent hiring, retention, supervision and training in violation of the laws of the state of Tennessee.
In support of his motion for summary judgment, defendant asserts that he has not deprived plaintiff of any right guaranteed by the Fourth Amendment, of due process guaranteed under the Fifth Amendment, of any right guaranteed by the Eighth Amendment, or her liberty guaranteed by the Fourteenth Amendment. Defendant further asserts that plaintiff has failed to state a claim under section 1981 upon which relief can be granted by this court and that defendant has qualified immunity in his individual capacity. Last of all, defendant argues that there is no basis for the exercise of pendent jurisdiction over the state law claims asserted against him [Doc. 16a].
Under the provisions of 42 U.S.C. § 1981:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
Section 1988 of Title 42 provides:
The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this Title, and of Title "Civil Rights," and of Title "Crimes," for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adopted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the state wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and if it is of a criminal nature, in the infliction of punishment on the party found guilty. In any action or proceeding to enforce the provisions of sections 1981, 1982, 1983, 1985 and 1986 of this Title, Title IX of Public Law 92-318, or Title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the cost.
Under the provisions of 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen and the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
Although plaintiff has asserted a cause of action under 42 U.S.C. § 1981, it is manifest from plaintiff's complaint, defendant's answer, and from the other filings, *630 that 42 U.S.C. § 1981 has no application to plaintiff's claims for relief. As pointed out by the Supreme Court in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), section 1981 protects two rights: "the same right ... to make ... contracts" and "the same right ... to ... enforce contracts." The events about which plaintiff complains do not relate to impairing her ability to make contracts or impairing her ability to enforce her contract rights. Therefore, plaintiff's assertion of a cause of action under 42 U.S.C. § 1981 is misplaced in the case sub judicia.
Plaintiff also asserts that her cause of action arises under 42 U.S.C. § 1988, but this section of Title 42 would only be relevant to the instant proceeding inasmuch as it provides that the court, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of the cost.
On the other hand, 42 U.S.C. § 1983 is directly applicable to the case at bar. Defendant correctly points out, however, that although the complaint purports to directly allege a cause of action under the Fourth, Fifth, Eighth, and Fourteenth Amendments, as well as under 42 U.S.C. § 1983, the law in this circuit stipulates that when a plaintiff alleges a cause of action under 42 U.S.C. § 1983, that statutory enactment is the exclusive remedy for the alleged constitutional violations. Thomas v. Shipka, 818 F.2d 496, 499 (6th Cir.1987), vacated and remanded on other grounds, 488 U.S. 1036, 109 S.Ct. 859, 102 L.Ed.2d 984 (1989). See also, Jett v. Dallas Independent School Dist., 491 U.S. 701, 734-35, 109 S.Ct. 2702, 2722, 105 L.Ed.2d 598, 626 (1989); Williams v. Bennett, 689 F.2d 1370 (11th Cir.1982), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983). For these reasons defendant asserts and the court agrees that plaintiff's constitutional claims must be treated as arising exclusively under 42 U.S.C. § 1983 [Doc. 16a, p. 4].
A. PLAINTIFF'S FIFTH AMENDMENT DUE PROCESS CLAIM
Plaintiff asserts a cause of action under the due process clause of the Fifth Amendment. However, the due process clause of the Fifth Amendment applies only to the federal government, and not to state or individual action. Spiesel v. City of New York, 239 F.Supp. 106 (S.D.N.Y.1964), aff'd, 342 F.2d 800 (2d Cir.1965), cert. denied, 382 U.S. 856, 86 S.Ct. 109, 15 L.Ed.2d 94 (1965); Bell v. Hood, 71 F.Supp. 813 (S.D.Calif.1947) (citing Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908) and Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833)).
B. PLAINTIFF'S EIGHTH AMENDMENT CLAIM
Plaintiff asserts that as a direct and proximate result of defendant's actions as set forth in her complaint, she was deprived of rights, privileges and immunities under the Eighth Amendment to the United States Constitution and the laws of the state of Tennessee. However, the Eighth Amendment, by its terms, applies to "cruel and unusual punishments," and the United States Supreme Court has ruled that it applies only to those convicted of crimes. Ingraham v. Wright, 430 U.S. 651, 664, 97 S.Ct. 1401, 1408, 51 L.Ed.2d 711 (1977). In fact, the Sixth Circuit has ruled that since the Eighth Amendment deals only with punishment, the Eighth Amendment cannot invalidate a state law authorizing police officers to use all force necessary to apprehend a suspect. Wiley v. Memphis Police Dept., 548 F.2d 1247 (6th Cir.), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 78 (1977).
In addition, the testimony of plaintiff dispels any assertion that the Eighth Amendment might be applicable. She testified that defendant was polite to her, that she was not treated with undue roughness, he did not strike, poke, or push her so hard that she lost her balance, and that her only complaint was that defendant shoved her or pushed her into the patrol car [Doc. 16a, Wynn Dep., pp. 23, 37-38]. Plaintiff's testimony demonstrates that she was not subjected to any form of cruel and unusual punishment as those terms are commonly understood.[2]
*631 C. PLAINTIFF'S FOURTEENTH AMENDMENT CLAIM
Plaintiff alleges that she was deprived of her rights, privileges, and immunities under the Fourteenth Amendment to the United States Constitution. Although she does not explicitly set forth the manner in which her Fourteenth Amendment rights were violated, plaintiff is apparently alleging that she was deprived of her liberty without due process of law. However, since the crux of plaintiffs complaints is that she was stopped for a traffic violation and placed under arrest without probable cause, her stop by defendant and her subsequent arrest must be analyzed under the Fourth Amendment's objective reasonableness standard rather than the substantive due process standard of the Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
D. PLAINTIFF'S FOURTH AMENDMENT CLAIM
As previously stated, the crux of plaintiff's complaint is that she was stopped for a traffic violation and subsequently placed under arrest allegedly without probable cause. The Fourth Amendment to the United States Constitution provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The pivotal question which must be resolved in regard to plaintiff's alleged Fourth Amendment claim revolves around whether or not defendant had probable cause to believe that a traffic violation had occurred when he stopped plaintiff and had probable cause to place her under arrest for driving under the influence of drugs or intoxicants. Probable cause has been defined by the Sixth Circuit Court of Appeals as "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion." United States v. Bennett, 905 F.2d 931, 934 (6th Cir.1990). The establishment of probable cause "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 244 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983); United States v. Barrett, 890 F.2d 855 (6th Cir.1989). As noted by the United States Supreme Court in Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983):
[P]robable cause is a flexible, common sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief" ... that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required.
(Citations omitted). Texas v. Brown, 460 U.S. at 732, 103 S.Ct. at 1543, 75 L.Ed.2d 502 (1983). In addition, the existence of probable cause should be determined on the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). This totality of the circumstances analysis includes a realistic assessment of the situation from a police officer's prospective. United States v. Barrett, 890 F.2d at 861.
The Sixth Circuit Court of Appeals has recently held that so long as a police officer has probable cause to believe that a traffic violation has occurred or was occurring, the resulting stop is not unlawful and does not violate the Fourth Amendment. The court went on to note that a traffic stop is reasonable if there was probable cause for the stop, and that this probable cause determination, like all probable cause determinations, is fact-dependent and will turn on what the *632 officer knew at the time he made the stop. United States v. Ferguson, 8 F.3d 385, 391 (6th Cir.1993). "Under this test," the Sixth Circuit ruled,
it is clear that the courts may not determine whether there was probable cause by looking at events that occurred after the stop.... Conversely, if the facts known to the officer at the time of the stop were sufficient to constitute probable cause to believe that a traffic violation had occurred, a reviewing court may not look at the officer's ordinary routine, or his conduct or conversations that occurred before or after the stop to invalidate the stop as pretextual.
Id. at 391; see also, United States v. McCully, 21 F.3d 712 (6th Cir., 1994) (electronic citation: 1994 FED App. 0117p (6 Cir.) file name: 94a0117p.06).
In conformity with the directive of the Sixth Circuit that the probable cause determination is fact-dependent and turns on what the officer knew at the time he made the stop, this court must discern what defendant knew at the time he stopped plaintiff. Defendant states in his affidavit that on September 20, 1992, at approximately 12:30 a.m., he was traveling in the left east-bound lane of Cumberland Avenue adjacent to the U-T campus when he noticed plaintiff's vehicle crossing over into his lane from the east-bound right lane. He states that he swerved into the west-bound lane to avoid a collision with plaintiff's vehicle and that plaintiff's vehicle crossed all the way into the left lane of traffic and swerved back into the right lane of traffic and continued traveling east-bound. Defendant pulled into the right lane behind plaintiff, activated his emergency lights, and briefly hit his siren in an attempt to pull plaintiff's vehicle over. When plaintiff's vehicle finally stopped, he notified police headquarters that he had effected a traffic stop, called out the license plate number, and turned his spotlight on the rear of plaintiffs vehicle. He got out of his car and began approaching plaintiff's vehicle, but when he got approximately half way to plaintiffs car, she accelerated and took off. Believing that plaintiff was deliberately fleeing from him, defendant ran back to his vehicle, notified the station that he was in pursuit, activated his siren, and began to pursue plaintiff's car. Defendant pursued plaintiff until another U-T patrol car pulled into the east-bound lane partially blocking it, and plaintiffs vehicle then made a right-hand turn onto Estra-brook Drive and stopped.
After stopping plaintiff, defendant administered three field sobriety tests, consisting of the walk and turn test, the one-leg stand test, and the horizontal gaze nystagmus test, and based upon his observations of plaintiff's driving behavior and his judgment that she failed all three sobriety tests, he concluded that plaintiff had been driving while under the influence of an intoxicant or other stimulant in violation of state law, and placed plaintiff under arrest. When defendant requested plaintiff to turn around and put her hands behind her back for the purpose of placing handcuffs on her wrists, plaintiff abruptly and forcefully pulled away from him and started running back to her car. Based on these circumstances, defendant concluded that plaintiff was attempting to avoid arrest in a manner justifying the additional charge of resisting arrest. Defendant states in his affidavit that in arresting plaintiff he used procedures which were fully consistent with the training he had received at the Tennessee Law Enforcement Training Academy [Doc. 16a, Morgan Aff. attached].
In response to Officer Morgan's affidavit submitted in support of his motion for summary judgment, plaintiff has filed portions of her discovery deposition simply stating that she did not know why defendant stopped her [Doc. 19, Wynn Dep., p. 24]. In her statement of the facts, plaintiff asserts that defendant told her that he had stopped her for driving on the yellow line, but there is nothing in plaintiffs statement of the facts or the deposition excerpts appended to her response relevant to whether or not defendant had probable cause to stop her automobile for a traffic violation.
The Sixth Circuit Court of Appeals has stated that probable cause is defined as "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion." United States v. Bennett, 905 F.2d 931, 934 (6th Cir.1990), quoted by the *633 Sixth Circuit in United States v. Ferguson, 8 F.3d at 392. Under the facts of this case, it is clear to the court that defendant did have probable cause to stop plaintiff's vehicle for a traffic violation which occurred in his presence. Moreover, it is equally apparent to the court that defendant had probable cause to arrest plaintiff for driving under the influence in violation of section 55-10-401, Tennessee Code Annotated.
Plaintiff characterizes the field sobriety tests administered by defendant as "pseudosobriety tests" and asserts that defendant in bad faith harassed her by forcing her to take these tests. As pointed out by defendant, however, the HGN test which plaintiff apparently characterizes as a "pseudo-sobriety test" has been found by the Tennessee Court of Criminal Appeals to be reasonably trustworthy when used by a trained officer. "All that the test establishes is probable cause to believe that the driver is under the influence of an intoxicant," the Tennessee Court of Criminal Appeals ruled. "[T]he HGN test provides an indicia of intoxication. Taken in conjunction with other evidence, it can lead to the conclusion that the subject of the test was intoxicated." State of Tennessee v. Moskal, Case No. 01-c-019203cc00092, 1992 WL 235166 (Court of Criminal Appeals, Tenn., September 23, 1992).
Based upon defendant's observation of plaintiff's driving (and specifically after witnessing plaintiff swerving into the lane of traffic in which the police car was traveling requiring the police car to swerve into another lane of traffic), considering the defendant's observation of plaintiff after he made the traffic stop, and in view of the affidavit of defendant that in his judgment plaintiff failed all three sobriety tests, it is apparent to the court that a reasonable police officer would have concluded that there was probable cause to stop and subsequently to arrest plaintiff for driving under the influence in violation of section 55-10-401, Tennessee Code Annotated. Therefore, the court concludes that plaintiff's rights under the Fourth Amendment have not been violated under the circumstances of this case.
For the foregoing reasons, the court concludes that plaintiff has not been deprived of any rights, privileges, or immunities secured by the Constitution and laws and that her claims asserted under 42 U.S.C. § 1983 must fail. Accordingly, it is my conclusion that defendant is entitled to summary judgment in his individual capacity because the pleadings, portions of plaintiff's deposition, and the record as a whole, together with the affidavits submitted by defendant, show that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law.
IV. DEFENDANT'S ASSERTION OF THE DEFENSE OF QUALIFIED IMMUNITY
While it is my conclusion that defendant is entitled to summary judgment in his individual capacity because he did have probable cause to stop and place plaintiff under arrest initiating plaintiff's claims under 42 U.S.C. § 1983, even if defendant did not have probable cause to stop and arrest plaintiff, it is also my conclusion that defendant is entitled to rely upon the defense of qualified immunity.
The Sixth Circuit Court of Appeals has recently noted that the difficulty of analyzing whether qualified immunity applies to a particular case "is contributed to by the fact that immunity jurisprudence sometimes has been less than completely clear both in the Supreme Court and in our court. Since there is a plethora of cases filed against public officials, and since immunity of one kind or another is frequently a first line of defense, there is no shortage of cases discussing immunity. As is often the case, however, more cases do not necessarily result in greater clarity." Megenity v. Stenger, 27 F.3d 1120 (6th Cir.1994) (electronic citation: 1991 FED App. 0222P (6th Cir.) File Name: 94a0222p.06).
In this case it appears clear to this court that probable cause did exist for plaintiff's stop for a traffic violation and for plaintiff's subsequent arrest. The application of qualified immunity to this case is problematic, therefore, since the court's finding of probable cause supports a general summary judgment, not a summary judgment based on qualified immunity. Megenity v. Stenger, supra, *634 1124. In order to thoroughly analyze plaintiff's claims, however, it appears necessary to assess the application of qualified immunity to the defendant's actions in this instance.
A case presenting facts strikingly similar to those presented by the instant case was addressed by the Sixth Circuit Court of Appeals in Hutsell v. Sayre, 5 F.3d 996 (6th Cir.1993), wherein the plaintiff filed a Fourth Amendment action under 42 U.S.C. § 1983 against the University of Kentucky, its board of trustees, and two officers of the University of Kentucky police department. The Eastern District of Kentucky dismissed the action and the Sixth Circuit affirmed, finding specifically that the state university was an "arm of the state" and that the action against the university, its trustees, and the police officers, insofar as they were acting in their official capacities, was barred by the Eleventh Amendment. That left plaintiffs claim against the officers in their individual and personal capacities, for which the Eleventh Amendment provided no immunity. Hafer v. Melo, 502 U.S. 21, ___, 112 S.Ct. 358, 364, 116 L.Ed.2d 301 (1991); Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). However, the Sixth Circuit noted, the defendants may assert the defense of qualified immunity to the extent that their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Hutsell v. Sayre, 5 F.3d at 1009.[3]
The proper analysis for a defendant's entitlement to qualified immunity, the Sixth Circuit ruled, consists of: (1) whether plaintiff has asserted a violation of a known civil constitutional right; and (2) whether the constitutional right was so clearly established at the time in question that a reasonable official in defendant's position would have known that he was violating plaintiff's constitutional rights. A court must rule in the affirmative on the first issue before considering the second, the Sixth Circuit held. Id., citing Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991), and Henry v. Metropolitan Sewer Dist., 922 F.2d 332, 339 (6th Cir.1990). Plaintiff in that case asserted that the affidavit signed by defendant when he applied for plaintiff's arrest warrant failed to establish probable cause and that the photographic identification procedure used by the police was impermissibly suggestive. The district court had found that there was probable cause for the issuance of the arrest warrant, that the photographic identification procedure used by the police was not impermissibly suggestive, and that the officers were entitled to qualified immunity in their individual capacities. Thus, the district court dismissed the action and the Sixth Circuit Court of Appeals affirmed. Hutsell v. Sayre, 5 F.3d 996 (6th Cir.1993).
In a recent published opinion on qualified immunity, the Sixth Circuit Court of Appeals noted that qualified immunity protects a police officer from being sued for his discretionary actions as long as the officer neither "`knew [n]or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights affected or ... took action with the malicious intention to cause a deprivation of a constitutional right....'" O'Brien v. City of Grand Rapids, 23 F.3d 990 (6th Cir.1994) (Electronic citation: 1994 FED App. 0153P (6th Cir.); File name: 94a0135P.06), citing Robinson v. Bibb, 840 F.2d 349, 350 (6th Cir.1988) (quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975)).
In that decision, the Sixth Circuit stated, "The question whether an official is protected by qualified immunity does not turn on the subjective good faith of the official; rather, it turns on the `objective legal reasonableness' of his actions, assessed in light of the legal *635 rules that were `clearly established' at the time the actions were taken. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)." O'Brien v. City of Grand Rapids, 23 F.3d at 999.
Resolution of the qualified immunity issue is a question of law for the district court. Poe v. Haydon, 853 F.2d 418, 424 (6th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989); O'Brien v. City of Grand Rapids, supra at 998. In discussing the defense of qualified immunity, the Sixth Circuit has held:
[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987) (citing Harlow, 457 U.S. at 819 [102 S.Ct. at 2739]); see also, Comment, Qualified Immunity for Law Enforcement Officials in Section 1983 Excessive Force Cases, 58 U.Cin.L.Rev. 243 (1989) (for an overview of the turn toward an objective standard). Hence, in determining whether an official is entitled to qualified immunity, the relevant inquiry is whether the actions of the offending officials "could reasonably have been thought reasonably consistent with the rights they are alleged to have violated." Anderson, 483 U.S. at 638, 107 S.Ct. at 3038. When the officials' claim of immunity turns on decisional law, this court must focus on whether, at the time of the officer's acts, the right asserted was "clearly established" by looking to the decisions of the Supreme Court or the Sixth Circuit Court of Appeals. Poe v. Haydon, 853 F.2d 418, 423-24 (6th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989) (citations omitted).
Hall v. Shipley, 932 F.2d 1147, 1150 (6th Cir.1991).
The Sixth Circuit Court of Appeals has ruled that the ultimate burden of proof is on the plaintiff to show that the defendant is not entitled to qualified immunity. Wegner v. Covington, 933 F.2d 390, 392 (6th Cir. 1991). Defendant bears the initial burden of coming forward with facts to suggest that he was acting within the scope of his discretionary authority during the incident in question, but thereafter, the burden shifts to the plaintiff to establish that the defendant's conduct violated a right so clearly established that any official in defendant's position would have clearly understood that he was under an affirmative duty to refrain from such conduct. Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir.1992).
On the other hand, if there is a factual dispute as to a genuine issue of material fact involving an issue on which the question of immunity turns, such that it cannot be determined before trial whether defendant did acts that violate clearly established rights, summary judgment should be denied if the undisputed facts show that the defendant's conduct did indeed violate clearly established rights. Poe v. Haydon, 853 F.2d 418, 426 (6th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989).
To determine whether qualified immunity protects the defendant in this case, the court must inquire: (1) whether the plaintiff has asserted a violation of a known civil constitutional right; and (2) whether the constitutional right was so clearly established at the time in question that a reasonable official in the defendant's position would have known that he was violating the plaintiff's constitutional rights. Hutsell v. Sayre, supra at 1009, citing Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991); see also, O'Brien v. City of Grand Rapids, supra at 999. Plaintiff in this case has asserted a violation of a known civil constitutional right, that is, her right to be free from unreasonable seizure under the Fourth Amendment to the United States Constitution. Therefore, since the answer to the first inquiry is affirmative, the court must next address the second prong of the two-prong analysis.
Plaintiff has asserted that the actions of defendant were intentional, malicious, reckless and in bad faith. If defendant's actions were motivated by the malicious intent to cause a deprivation of plaintiff's constitutional rights, then defendant would not be entitled to the protection of qualified immunity. *636 Robinson v. Bibb, 840 F.2d 349, 350 (6th Cir.1988) (quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975)). At oral argument, plaintiff asserted that defendant's action in telling her that she had passed the field sobriety tests administered to her and then proceeding to place her under arrest demonstrates a malicious intent to cause a deprivation of plaintiff's constitutional right to be free from unreasonable arrest and seizure.
However, as pointed out by the Sixth Circuit in O'Brien v. City of Grand Rapids, supra, qualified immunity does not turn on the subjective good faith of the official; rather, it turns on the "objective legal reasonableness" of his actions, assessed in light of the legal rules that were "clearly established" at the time the actions were taken. Id. at 999, citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Thus, defendant's statements to plaintiff as to whether she passed none, some, or all of the field sobriety tests administered to her is not determinative of the "objective legal reasonableness" of his actions. What is important to a determination of whether defendant is entitled to qualified immunity is the objective legal reasonableness of his belief that plaintiff had committed a traffic violation and that probable cause existed for arresting plaintiff for driving under the influence of drugs or intoxicants based upon his observations of her driving behavior, the plaintiff's behavior after the traffic stop, and his judgment that she failed all three sobriety tests.
In similar vein, defendant's assertion that plaintiff was admittedly taking medication (Tegretol) for epilepsy which can cause disturbances of coordination, confusion, nystagmus, and abnormal involuntary movements (see Doc. 16a, Smith Aff. w/attachment), which could cause her to appear to be intoxicated, is immaterial to the issue of whether defendant's actions were in conformity with objective legal reasonableness. This fact may explain why defendant found that plaintiff failed her field sobriety tests, but it is not determinative of whether defendant's actions were objectively reasonable in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989).
Plaintiff may be innocent of the charged offenses, and it may very well result that the state of Tennessee will not be able to establish plaintiff's guilt of the charged offenses beyond a reasonable doubt and plaintiff will be acquitted. However, that consideration is of no moment to the court's determination of whether, under the circumstances surrounding plaintiff's stop and subsequent arrest, the facts support the objective legal reasonableness of defendant's actions, assessed in light of the legal rules that were clearly established at the time the actions were taken. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In final analysis, to determine whether defendant is entitled to qualified immunity in this case, this court must determine whether a reasonable police officer in the defendant's position should have known that his conduct was in violation of plaintiff's constitutional rights.
It is my conclusion that there are no factual disputes on which the question of qualified immunity turns in this case, and that the defendant is entitled to the protection of qualified immunity. Defendant did have probable cause to effectuate the traffic stop and subsequent arrest of defendant. While plaintiff has asserted a violation of a known civil constitutional right, and that constitutional right was clearly established at the time in question by the United States Constitution and decisional law, defendant's actions were objectively reasonable in light of the legal rules which were clearly established at the time the actions were taken. Therefore, it appears to this court that defendant would be entitled to rely upon the defense of qualified immunity in this instance.
V. PLAINTIFF'S PENDENT JURISDICTION CLAIMS
Defendant has also moved for summary judgment in regard to plaintiff's pendent claims asserted under state law. He points out, and the court agrees, that state substantive law is controlling on pendent *637 state claims raised in federal court. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it had original jurisdiction. The Sixth Circuit Court of Appeals has ruled that a district court may refuse to exercise supplemental jurisdiction over pendent state claims following the dismissal of plaintiff's federal claim concerning which the court had original jurisdiction. Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178 (6th Cir.1993). If the sole premises for federal subject matter jurisdiction are extinguished, a district court may decline to exercise continuing pendent or supplemental jurisdiction over plaintiff's state law claims. Wexley v. Michigan State University, 821 F.Supp. 479 (W.D.Mich. 1993). Where a district court has dismissed federal claims and only state law claims remain, a federal court must balance considerations including judicial economy, convenience, fairness to litigants, and comity in deciding whether to exercise supplemental jurisdiction over the remaining state law claims. Pension Plan of Public Service Co. of New Hampshire v. KPMG Peat Marwick, 815 F.Supp. 52 (D.N.H.1993). In Cruz v. City of Wilmington, 814 F.Supp. 405 (D.C.Del.1993), the court held, upon granting summary judgment in favor of defendants on plaintiff's federal civil rights claims, that no overriding interest of judicial economy or convenience warranted the exercise of supplemental jurisdiction by the federal district court over plaintiff's state law claims and defendant's state law cross-claims.
In regard to plaintiff's state law claims in this case, it does not appear that judicial economy, convenience, fairness to litigants, and comity would be advanced by this court exercising pendent jurisdiction over plaintiff's state law claims of false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, outrageous conduct, negligence, and gross negligence. Since all of these are traditional state law claims and since defendant appears to be primarily relying upon a state statute granting absolute immunity to state employees acting within the scope of their employment (Tenn.Code Ann. § 9-8-307(h)), it does not appear that judicial economy, convenience, fairness to the litigants, or comity would be advanced by this court exercising supplemental jurisdiction over plaintiff's state law claims and it respectfully declines to do so. The courts of the State of Tennessee are certainly equally capable, if not more capable, of resolving traditional state law claims and of applying a state statute to a particular factual pattern than is a federal court. Therefore, nothing would be gained for either party by continuing this case in federal court.
VI. CONCLUSION
For the reasons hereinabove set forth, it is the finding of the court that there is no genuine issue as to any material fact and defendant is entitled to judgment as a matter of law under Rule 56, Federal Rules of Civil Procedure. In addition, this court declines to accept jurisdiction of plaintiff's pendent state claims which shall be dismissed without prejudice.
Order to follow.
ORDER
For the reasons set forth in the court's memorandum opinion this day filed with the clerk, summary judgment shall enter in favor of defendant Charles V. Morgan, and against plaintiff, Trina Wynn, pursuant to Rule 56, Federal Rules of Civil Procedure, and plaintiff's federal claims are hereby DISMISSED. Plaintiff's pendent state law claims are hereby also DISMISSED, but without prejudice.
IT IS SO ORDERED.
NOTES
[1] Childress, A New Era for Summary Judgments: Recent Shifts at the Supreme Court, 116 Federal Rules Decisions 183, 184 (1987); Stempel, A Distorted Mirror: The Supreme Court's Shimmering View of Summary Judgment, Directed Verdict and the Adjudication Process, 49 Ohio St.L.Rev. 95, 107-08 (1988); Friedenthal, "Cases on Summary Judgment: Has there been a Material Change in Standards?," 63 Notre Dame L.Rev., 770, 771 (1988).
[2] The Eighth Amendment to the United States Constitution also prohibits excessive bail and excessive fines. Since plaintiff has not asserted that she was subjected to excessive bail or fines, it is assumed that she is complaining about being subjected to cruel and unusual punishment. However, as pointed out by defendant, the constitutionality of any detention or treatment prior to a conviction falls within the due process clause, not the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1872, n. 16, 60 L.Ed.2d 447 (1979).
[3] In ruling on a summary judgment motion, a district court should consider the allegations put forth by the plaintiff, and "[u]nless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645857/ | 9 So.3d 587 (2007)
WALLACE RIVERS
v.
STATE.
No. CR-06-1064.
Court of Criminal Appeals of Alabama.
June 22, 2007.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322692/ | 676 S.E.2d 74 (2009)
STATE of North Carolina
v.
Chubasco REAVES.
No. COA08-1128.
Court of Appeals of North Carolina.
May 5, 2009.
*75 McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III & Kirby H. Smith, III, New Bern, for defendant.
Attorney General Roy Cooper, by Assistant Attorney General Sonya M. Calloway-Durham, for the State.
WYNN, Judge.
Defendant Chubasco Reaves appeals from a conviction of first-degree sexual offense with a child in violation of N.C. Gen.Stat. § 14-27.4(a)(1) (2007). Defendant contends the trial court erred by denying his motion to dismiss and making certain evidentiary rulings. After careful review, we hold that Defendant received a trial free of prejudicial error.
The facts giving rise to Defendant's conviction tended to show that Defendant engaged in sexual acts with a ten-year-old female, who along with her two younger siblings, was spending the night with Defendant's stepdaughter at Defendant's house. The children slept in a room across the hall from a room occupied by Defendant and his wife, the mother of Defendant's stepdaughter. While the children slept, Defendant allegedly went into the room, kissed the ten-year old female on the mouth, and attempted to engage in fellatio with her. The ten-year-old *76 female testified at trial that after Defendant tapped the other children to see if they were asleep, she felt his tongue on her lips; heard him pull down his shorts; felt something wet, which she described as his "private" on her mouth; felt his skin and finger around her mouth; gritted her teeth together so that his "private" would not go into her mouth; and heard Defendant's wife call for him which caused him to leave the room. She stated the Defendant returned a short time later and attempted to engage in fellatio with her again but she prevented his second attempt by turning her head, and he again left the room. She said Defendant returned a third time and turned the light on when she began crying and told him that she wanted to go home. Thereafter, Defendant drove the ten-year-old female home.
At her house, the ten-year-old female ran to her mother's bathroom to brush her teeth while continuing to cry. Eventually, she told her mother of the incidents which ultimately led to a police investigation after the mother reported the matter.
Defendant gave various statements during the police investigation. On 26 September 2006, Defendant went to the Sheriff's Office and gave a statement to Detective Trina Godwin denying any wrongdoing. However, following subsequent allegations by Defendant's stepdaughter that Defendant had engaged in sexual intercourse with her on at least three occasions, on 24 October 2006, Defendant's wife drove him to the police station where he made a statement to Detective Mack Brazelle "that he had had sex with his daughter, stepdaughter, three times and had put his penis in the other little girl's mouth." Sometime later, Detective Godwin arrived and Defendant gave a detailed account of three sexual encounters with his stepdaughter.
Based upon his statements, Defendant was charged with multiple counts of first-degree rape of his stepdaughter and first-degree sexual offense of the ten-year-old female. However, the State dropped the charges of first-degree rape against the stepdaughter after she recanted her allegations and a genital exam neither supported nor refuted her allegations.
In a letter dated 18 January 2007, Defendant wrote to Detective Godwin, claiming for the first time that his confessions were false and motivated by a desire to keep himself and his family safe from threats received from the ten-year-old female's father. The letter explained that, because of the threats, Defendant sought a gun permit, but having failed, he resorted to a false confession to keep his family safe and to prevent the Department of Social Services from taking his stepdaughter from his wife.
At trial, Defendant made a motion in limine to exclude any Rule 404(b) evidence relating to the alleged sexual encounters between Defendant and his stepdaughter. Also, the State made a motion in limine to exclude any evidence that Defendant was charged with sexual offenses relating to his stepdaughter and that those charges were dismissed. The trial court granted the State's motion and denied Defendant's. The trial court also denied Defendant's motion to suppress his statements to Detectives Brazelle and Godwin.
Following the presentation of evidence at trial, a jury returned a verdict of guilty against Defendant on the charge of first-degree sexual offense against the ten-year-old female. The trial court entered judgment consistent with the jury's verdict and sentenced Defendant to a term of 240 to 297 months imprisonment. Defendant appeals arguing that the trial court erred by: (I) allowing the Rule 404(b) evidence, but excluding evidence that the related charges were dismissed; (II) sustaining objections to Defendant's testimony about the alleged threats; (III) allowing the State's re-cross examination of his wife to become argumentative and to exceed its proper scope; and (IV) denying his motion to dismiss.
I.
First, Defendant argues the trial court erred in admitting the Rule 404(b) evidence because the court used an incorrect procedure and the evidence was not relevant or offered for a permissible purpose. However, the State contends that Defendant failed to preserve the pertinent assignments *77 of error for this Court's review because he failed to object when the evidence was offered at trial.
Our Supreme Court has stated:
[A] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial. Rulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered, and thus an objection to an order granting or denying the motion is insufficient to preserve for appeal the question of the admissibility of the evidence.
State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam) (citations and quotation marks omitted). Thus, a defendant must "object when the evidence that was the subject of the motion in limine [is] offered at trial...." Id. Likewise, a party objecting to the grant of a motion in limine must attempt to offer the evidence at trial to properly preserve the objection for appellate review. See State v. Hill, 347 N.C. 275, 293, 493 S.E.2d 264, 274 (1997); see also State v. Hernendez, 184 N.C.App. 344, 347, 646 S.E.2d 579, 582 n. 3 (2007) (noting that the defendant properly preserved his objection to the trial court's grant of the State's motion in limine where he "requested voir dire examination of the challenged witnesses and made offers of proof of the testimony he sought to have admitted into evidence.").
In this case, the first witness to testify about the Rule 404(b) evidence was Detective Brazelle; Defendant did not object to Detective Brazelle's testimony. Later, during Detective Godwin's direct examination, Defendant objected when the prosecutor asked what Defendant told Detective Godwin "about what he had done to [his stepdaughter]." The trial court denied Defendant's objection, and thereafter Detective Godwin read Defendant's entire statement, detailing sexual encounters with his stepdaughter, without objection. During his case-in-chief, Defendant made no offer of proof or other attempt to introduce evidence that charges relating to the Rule 404(b) evidence were dismissed. Under Hayes and Hill, we are compelled to hold that Defendant waived his objections to the trial court's rulings on the motions in limine.[1] Accordingly, we dismiss this assignment of error.
II.
Next, Defendant argues the trial court violated his right to present a defense by excluding evidence of alleged threats and the motivation for his incriminating statements. We disagree.
During Defendant's direct examination, he attempted to testify that he had received threats from the ten-year-old female's father, and that those threats motivated him to give false confessions. The trial court sustained the State's objections during this series of questions and denied defense counsel's request to be heard. No basis was offered by the State for its objections or by the trial court for its rulings. However, assuming arguendo that the trial court erred by excluding this testimony, Defendant suffered no prejudice because the evidence was eventually admitted.
Just moments after the trial court sustained the State's objections, Defendant testified as follows:
Q: You say you were afraid for your life. Why were you afraid for your life?
A: I had been receiving threats.
...
Q: Now between that time-between September 26th of '06 and October the 24th of '06, the second time you talked with the officers, would you describe your mental state during that period of time?
A: I didn't know-I didn't know what was going on. I didn't-couldn't understand why she would say something like that about me.
*78 ...
Q: When you say you were going to turn yourself in, what do you mean?
A: Well because of-because of the threats.
Furthermore, the State cross-examined Defendant extensively about the alleged threats. Accordingly, assuming the trial court erred by initially excluding Defendant's testimony about the threats and his state of mind before making the incriminating statements, he cannot show that such error was prejudicial. N.C. Gen.Stat. § 15A-1443(a) (2007). This assignment of error is without merit.
III.
In his next assignment of error, Defendant argues the trial court committed prejudicial error by failing to restrict the scope of his wife's re-cross examination. We disagree.
Under the Rules of Evidence, trial courts should "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." N.C. Gen.Stat. § 8C-1, Rule 611(a) (2007). However, "[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility." Id. § 8C-1, Rule 611(b). "On appeal, the trial court's decision to limit cross-examination is reviewed for abuse of discretion, and rulings in controlling cross examination will not be disturbed unless it is shown that the verdict was improperly influenced." State v. Jacobs, 172 N.C.App. 220, 228, 616 S.E.2d 306, 312 (2005) (citations omitted).
First, Defendant complains of the State's use of the medical report of his stepdaughter's genital examination, which had not been admitted into evidence, during re-cross examination of Defendant's wife. However, Defendant did not object as the prosecutor referred to this evidence; accordingly, this objection has not been preserved for our review. N.C. R.App. P. 10(b)(1) (2008).
Second, Defendant contends that the State's use of his stepdaughter's statements to social worker Lauretta Freeman was improper because there was no foundation and the statements were hearsay. Ms. Freeman did not testify at trial, and Defendant notes that the DSS report containing his stepdaughter's statements was not admitted into evidence. The trial court denied Defendant's timely objection. However, the prosecutor's questions involved whether his stepdaughter told Ms. Freeman that Defendant had had sexual intercourse with her-an issue on which there had already been extensive testimony from Detective Brazelle, Detective Godwin, and Defendant. Therefore, even assuming that the trial court erred by allowing the prosecutor to question Defendant's wife about Defendant's stepdaughter's statements to Ms. Freeman, Defendant has not shown that prejudice resulted. N.C. Gen.Stat. § 15A-1443(a) (2007).
Finally, Defendant's argument that his wife's re-cross examination became argumentative does not amount to error. Indeed, the trial court sustained Defendant's objections to argumentative questions. In short, the trial court sufficiently controlled the manner and scope of cross-examination, and we cannot conclude that any argumentative questions improperly influenced the verdict. Jacobs, 172 N.C.App. at 228, 616 S.E.2d at 312.
IV.
Defendant contends in his last argument that the trial court erroneously denied his motion to dismiss because the State's evidence of a "touching" was insufficient to prove a sexual act occurred. We disagree.
The State argues that Defendant has not preserved this issue for appellate review because his motion to dismiss was untimely. "[I]f a defendant fails to move to dismiss the action ... at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged." N.C. R.App. P. 10(b)(3) (2008). Here, Defendant's motion to dismiss at the end of the State's evidence was denied. Defendant presented evidence but did not renew his motion to dismiss until after closing arguments. *79 The trial court denied Defendant's renewed motion to dismiss.
In arguing that Defendant's renewed motion to dismiss was untimely, the State relies on two unpublished cases, State v. Overby, 183 N.C.App. 158, 643 S.E.2d 679, 2007 WL 1246427 (2007) (unpublished) and State v. Freeman, 163 N.C.App. 612, 594 S.E.2d 257, 2004 WL 743767 (2004) (unpublished). Both cases held that the motions to dismiss, made after the jury was instructed in Freeman and after the defendant was sentenced in Overby, were untimely. Overby, 2007 WL 1246427 at *5; Freeman, 2004 WL 743767 at *2. However, the common basis for the holdings in both cases is expressed in this language from Overby: "Defendant's failure to renew the motion to dismiss [at the close of all the evidence], combined with the trial court's failure to rule on the motion, waives defendant's right to appellate review of this issue." Overby, 2007 WL 1246427 at *5 (emphasis added); see also Freeman, 2004 WL 743767 at *2. The trial court ruled on Defendant's renewed motion to dismiss in this case; thus Overby and Freeman are distinguishable. Accordingly, we reach the merits of Defendant's argument.
Under N.C. Gen.Stat. § 14-27.4, A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:
(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim....
N.C. Gen.Stat. § 14-27.4(a)(1) (2007). Where the "sexual act" is fellatio, evidence of "any touching of the male sexual organ by the lips, tongue, or mouth of another person" will suffice. State v. Johnson, 105 N.C.App. 390, 393, 413 S.E.2d 562, 564, disc. review denied, 332 N.C. 348, 421 S.E.2d 158 (1992). To survive a motion to dismiss, the State must present substantial evidence, viewed in the light most favorable to the State, of each element of the offense. State v. Murphy, 100 N.C.App. 33, 36, 394 S.E.2d 300, 302 (1990).
Defendant contends that the State's evidence of a "touching" was insufficient because the ten-year-old female testified that her eyes were closed and it was dark when Defendant allegedly entered the room. However, other circumstances to which the ten-year-old female testified, and Defendant's inculpatory statements, when viewed most favorably to the State, amount to substantial evidence that Defendant's penis touched the ten-year-old female's mouth. The ten-year-old female testified that she heard a "swishing" sound made by undershorts being pulled down, and felt skin and wetness on her mouth. Moreover, in Defendant's inculpatory statements, he admitted putting his penis in the "other little girl's mouth." The jury could reasonably infer from this admission that Defendant was referring to the ten-year-old female. Accordingly, this assignment of error is overruled.
No prejudicial error.
Chief Judge MARTIN and Judge ERVIN concur.
NOTES
[1] We note that Defendant's seventh assignment of error alleges plain error, but Defendant makes no corresponding argument in brief. Accordingly, we have not reviewed this issue for plain error. See N.C. R.App. P. 10(c)(4) & 28(a) (2009) (assignment of error not presented and discussed in brief is deemed abandoned); State v. Cummings, 352 N.C. 600, 636-37, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 121 S. Ct. 1660, 149 L. Ed. 2d 641 (2001). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322908/ | 238 S.C. 533 (1961)
121 S.E.2d 10
Murrell STANLEY, Respondent,
v.
RESERVE INSURANCE COMPANY, Appellant.
17806
Supreme Court of South Carolina.
July 18, 1961.
*534 Messrs. Hagood, Rivers & Young, of Charleston, and Burroughs & Green, of Conway, for Appellant.
Messrs. J. Reuben Long and J.M. Long, Jr., of Conway, for Respondent.
July 18, 1961.
LEWIS, Justice.
This action was brought by the respondent. Murrell Stanley, against the appellant, Reserve Insurance Company, to recover, under an automobile liability insurance policy, the amount of a judgment obtained against appellant's insured, Weylon B. Rabon. The policy of insurance was issued on a truck owned by Rabon and this appeal involves the extent of the coverage afforded by the policy.
The respondent, Murrell Stanley, obtained judgment by default against Weylon B. Rabon for personal injuries and *535 property damage sustained in a collision with a truck and trailer owned by Rabon. At the time of the collision the truck was being operated with a trailer attached. Rabon held an automobile liability insurance policy issued to him by the appellant, Reserve Insurance Company, in which his truck was designated as the insured vehicle, but not the trailer. The policy contained a clause excluding coverage when the insured vehicle is used for towing a trailer not covered by like insurance in the company.
The appellant denied liability under the policy upon the grounds that (1) the truck operated by Rabon at the time of collision was not the vehicle designated and shown in the policy and (2) the vehicle operated at the time of the collision by Rabon was towing an uninsured trailer in violation of the terms of the policy.
Upon the trial of this case both appellant and respondent made motions for a directed verdict in their favor. The trial court refused the motion of the appellant and granted that of the respondent for the amount of the judgment previously obtained against Rabon, the insured. Thereafter appellant's motions for judgment in its favor notwithstanding the verdict and, in the alternative for a new trial. were denied and this appeal followed.
While the exceptions raise several questions relating to the identity of the truck insured and the admissibility of certain testimony, it is only necessary to decide whether or not the claim of the respondent is defeated by the provision of the policy excluding coverage when the vehicle insured is used for towing an uninsured trailer. In doing so, we shall assume that the truck operated by Rabon at the time was the one designated and shown in the policy.
Rabon was engaged in the logging business and the vehicle operated at the time of the collision by him was a two ton truck to which was connected a pole trailer of the type used for logging operations. The collision, out of which respondent's injury and damage arises, occurred when the respondent's *536 automobile struck the truck and trailer as it was pulling into the highway from a filling station.
The pertinent part of exclusion C of the policy in question reads as follows: "This policy does not apply while the automobile is used for the towing of any trailer owned or hired by the insured not covered by like insurance in the company."
The foregoing provisions are not uncommon in policies of automobile liability insurance. They are generally held valid and enforceable because of the added hazard created by the towing of the trailer. 5A Am. Jur., Section 33, page 34; 45 C.J.S., Insurance, § 834, page 913; 7 Appleman Insurance Law and Practice. Section 4438; 6 Blashfield Cyc. of Automobile Law and Practice, Section 3973; Annotation: 31 A.L.R. (2d) 298; and the cases cited in the foregoing. The added hazard of towing a trailer is one for which an additional premium is ordinarily charged.
It is undisputed that, at the time of the collision in question, the insured vehicle was towing a trailer, owned by the insured, not covered by like insurance in the company. The foregoing policy provision expressly excludes coverage under such circumstances, is valid and binding between the parties, and defeats recovery in this case.
At the time of the application for the policy the question regarding the insurance of a trailer was not discussed, and the record is silent as to any knowledge by the agent of the use of a trailer with the truck insured. There was no request for insurance of a trailer and no disclosure of information as to the type truck being insured, except that it was a two ton truck.
The respondent contends, however, that the provisions of the South Carolina Motor Vehicle Safety Responsibility Act (Section 46-701 et seq. of the 1952 Code of Laws) require the conclusion that coverage is afforded by the policy notwithstanding the provision of the policy to the contrary. The lower Court, in effect, so held.
*537 The policy of insurance in question was obtained by Rabon pursuant to the mandatory terms of the foregoing Act, and the required certificate of its issuance was duly filed by appellant with the State Highway Department. It is conceded that the policy was issued to comply with the Motor Vehicle Safety Responsibility Act and to enable Rabon to establish financial responsibility for the future operations of his truck as required by that law. The policy obtained was an owner's policy and is one of the statutory methods of proof of financial responsibility. Section 46-750.4.
The respondent, as did the trial court, relied mainly upon Section 46-750.26(3) for the conclusion that the Act operates to nullify the exclusion of coverage when the insured vehicle was towing an uninsured trailer. In the answer of the appellant it is alleged that there was "a violation of the policy provisions as the vehicle was towing a trailer which was not covered on the policy and therefore there was no coverage in effect on the vehicles involved in the collision". Respondent argues that the towing of the trailer in question was a violation of the policy and was so recognized by the appellant in its answer. He further contends that, since the act of towing the trailer was a violation of the policy, such would not defeat recovery, as under the provisions of this subsection it is provided that "no violation of the policy shall defeat or void the policy". While the appellant referred in its answer to the towing of the trailer as a violation of the policy provisions, an examination of the pleadings will clearly disclose that the provision prohibiting the towing of an uninsured trailer was plead as an exclusion from the policy provisions, rather than a violation.
The provision of the policy, excluding coverage when the vehicle insured is towing an uninsured trailer, is a limitation on the coverage afforded by the contract. It excludes coverage when the insured vehicle is towing a trailer not covered by like insurance in the company. The act of towing the trailer in question was not a violation of the policy provisions, but a use of the vehicle not covered by *538 its terms. It is one of the risks excluded from the policy provisions. See: Phoenix Indemnity Co. v. Conwell, 94 N. H. 146, 47 A. (2d) 827, 1 A.L.R. (2d) 819.
The contention of the respondent is, in effect, that the foregoing Act requires an insurance policy subject to its provisions to afford protection to the owner irrespective of the use made of the insured vehicle or the circumstances. Certainly, the effect of sustaining the position of respondent would be to so hold. We are of the opinion that there is no provision of the Act justifying such conclusion.
The Act in question sets forth in plain langauge the coverage required in automobile liability policies issued under its terms. Sections 46-750.24, 46-750.26, 46-750.28. There is no provision which, either expressly or by implication, requires that such a policy must insure against any and all liability, regardless of the circumstances. The polcy in question meets the requirements of the Act and the coverage afforded by it must be determined by its terms. Booth v. American Casualty Co., 4 Cir., 261 F. (2d) 389; Howell v. Travelers Indemnity Co., 237 N.C. 227, 74 S. E. (2d) 610.
Illustrative of the broader coverage required under the automobile liability insurance statutes of some states is the provision considered in the case of Phoenix Indemnity Co. v. Conwell, supra: Annotation: 1 A.L.R. (2d) 822.
While the broad public policy underlying the enactment of the Motor Vehicle Safety Responsibility Act is recognized, as stated in Barkley v. International Mutual Insurance Co., 227 S.C. 38, 86 S.E. (2d) 602, 605, "We cannot read into the insurance contract, under the guise of public policy, provisions which are not required by law and which the parties thereto clearly and plainly have failed to include." If the Act in question fails to accomplish the legislative purpose, the remedy lies with the Legislature and not with the courts.
*539 It is argued in the brief of the respondent that in order to defeat recovery it must be shown that there was a causal connection between the operation of the trailer and the loss sustained. The record does not show that this contention was presented and passed upon in the trial court and it will, therefore, not be considered on appeal. Carter v. Peace, 229 S.C. 346, 93 S.E. (2d) 113; Wright v. City of Florence, 229 S.C. 419, 93 S.E. (2d) 215.
Reversed and remanded for entry of judgment in favor of the appellant.
TAYLOR, C.J., OXNER and MOSS, JJ., and J.B. NESS, Acting Associate Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322901/ | 121 S.E.2d 885 (1961)
255 N.C. 494
Raymond Easter EASON
v.
Jimmie GRIMSLEY, Dan Braxton, t/a Dan Braxton Trucking Company and White Owl Motor Company.
No. 246.
Supreme Court of North Carolina.
October 11, 1961.
*886 Fields & Cooper, Rocky Mount, for plaintiff.
David E. Reid, Jr., James & Speight and W. H. Watson, Greenville, for defendants.
MOORE, Justice.
The sole question is whether or not the court erred in granting nonsuit.
When considered in the light most favorable to plaintiff, the evidence tends to show: On 25 March 1960, about 8:30 a. m., plaintiff was owner of and a passenger in an automobile, driven by his son. It was drizzling rain. The automobile was proceeding eastwardly on Highway 97 in or near Leggett. The driver observed a slow-moving tractor-trailer ahead, proceeding in the same direction. The highway was straight, and the speed of the automobile about 35 miles per hour. When about 50 yards from the tractor-trailer, the driver of the automobile sounded the horn and pulled to the left to pass. He saw "no indication of the blinker lights blinking off and on the tractor-trailer." He "saw no signals whatsoever." As the automobile got even with the cab of the tractor, the tractor turned left to enter a narrow, dirt side-road or path at the north edge of the highway. There is no highway marker indicating a side road at this point. The bumper and left fender of the tractor struck the automobile on the right front fender just behind the head lights. The automobile "was close to two feet from the center line when the collision occurred." The tractor-trailer was to the right of the center line when the automobile started to pass. The investigating patrolman found "a little dirt on the center line and approximately 18 inches to 2 feet north or left of the center line." When he examined the electric turn signals on the tractor-trailer and turned them on, the lights on the rear "did not blink; they just came on and stayed on." All of the rear lights were completely covered with mud or road scum, and you could not see them over a distance of 12 or 14 feet to tell *887 whether they were on or off. They were very dim." The driver of the tractortrailer stated to the patrolman that "he looked in the mirror and did not see a vehicle behind him and that just as he started to turn he looked in the rear view mirror again, and the car was right up along side of him," and that "he gave a signal, but did not hear a horn blow."
Defendants offered evidence contradicting, in material part, most of plaintiff's evidence.
"Where the defendant introduces evidence G.S. § 1-183 requires (on motion to nonsuit) a consideration of all the evidence; even so, it is clear that only that part of defendant's evidence which is favorable to plaintiff can be considered, since otherwise the court would have to pass upon the weight and credibility of the evidence." (Parentheses ours). 3 Strong's Index, Negligence, s. 24a, p. 471; Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330.
From the evidence favorable to plaintiff the inference is permissible that defendants were negligent in that they failed to give a "plainly visible" signal of intention to turn left, did not keep a proper lookout, and did not heed plaintiff's warning horn, and that such negligence was a proximate cause of the collision. G.S. § 20-154; Jones v. Mathis, 254 N.C. 421, 119 S.E.2d 200; Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538. Other inferences of negligence on the part of defendants may be drawn from the evidence, but they were not pleaded and cannot be considered. There must be both allegation and proof. Wilkes Poultry Co. v. Clark Trailer & Equipment Co., 247 N.C. 570, 572, 101 S.E.2d 458.
Defendants insist that plaintiff's evidence shows that he was contributorily negligent as a matter of law. It is the contention of defendants that the negligence of the automobile driver is imputed to plaintiff, owner-passenger, and therefore plaintiff was contributorily negligent in that the driver (1) failed to pass the tractor-trailer "at least two feet to the left thereof," G.S. § 20-149(a), and (2) failed to keep a proper lookout and to give heed to defendants' turn signal.
The owner of an automobile, riding therein as a passenger, ordinarily has the right to control and direct its operation. The negligence, if any, of a party operating an automobile with the owner-passenger's permission or at his request is, nothing else appearing, imputed to the owner-passenger. Shoe v. Hood, 251 N.C. 719, 112 S.E.2d 543; Dosher v. Hunt, 243 N.C. 247, 90 S.E.2d 374; Baird v. Baird, 223 N.C. 730, 28 S.E.2d 225.
The evidence, when considered as a whole, does not establish as an uncontradicted fact that plaintiff's automobile failed to pass at least two feet to the left of the tractor-trailer. G.S. § 20-149(a) does not require a vehicle to pass "at least two feet to the left" of the center line of the highway; the requirement is that it pass at least two feet to the left of the other vehicle involved. The evidence on this point will admit of contrary conclusions and under proper pleadings would be for the jury. Darden v. Bone, 254 N.C. 599, 119 S.E.2d 634. Defendants do not allege, either directly or indirectly, a violation of G.S. § 20-149(a) on the part of plaintiff, and the failure of plaintiff to comply with that statute, in the absence of proper allegation, cannot be the basis for nonsuit or a jury verdict.
Defendants point out that plaintiff shows by the testimony of the patrolman that defendant Grimsley "said he gave a signal." And defendants insist that the declarations of the automobile driver that he did not see a signal only tend to show he was not keeping a proper lookout, and that on this point the case is controlled by the language in Moore v. Boone, 231 N.C. 494, 496, 57 S.E.2d 783. Defendants overlook the testimony of the patrolman that the *888 rear lights of the tractor-trailer would not blink when turned on, would come on and stay on, and were so covered with mud and scum that they were very dim and could be seen at a distance of only 12 or 14 feet away. Whether the lights would blink, and whether, if they would blink, they were "plainly visible" as required by G.S. § 20-154, are questions for the jury. Furthermore, even if the lights were blinking and plainly visible, it was a question for the jury, under all the circumstances, whether plaintiff had the duty to yield. The giving of a turn signal indicates the intention of the signaler to make the indicated turn and requires other motorists involved to observe caution and use reasonable care, but it does not vest in the signaler an absolute right to make the turn immediately, regardless of circumstances. The signaler must first ascertain that the movement may be made in safety. G.S. § 20-154(a). When circumstances do not allow the signaler a reasonable margin of safety, other motorists affected have the right to assume he will delay his movement until it can be safely made. Simmons v. Rogers, 247 N.C. 340, 346, 100 S.E.2d 849; Ervin v. Cannon Mills Co., 233 N.C. 415, 419, 64 S.E.2d 431.
Nonsuit on the ground of contributory negligence may not be entered when it is necessary to rely in whole or in part upon defendant's evidence, or when diverse inferences upon the question are reasonably deducible from plaintiff's evidence. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307.
The judgment below is
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322902/ | 104 Ga. App. 348 (1961)
121 S.E.2d 657
FAITH et al.
v.
MASSENGILL.
38990.
Court of Appeals of Georgia.
Decided September 6, 1961.
*351 Hardin, McCamy, Minor & Vining, Carlton McCamy, for plaintiffs in error.
Mitchell & Mitchell, D. W. Mitchell, Jr., contra.
JORDAN, Judge.
1. (a) It is the contention of counsel for the minor defendant that as a matter of law an eight year old child cannot be guilty of actionable, primary negligence; and that, accordingly, the plaintiff's petition as to this defendant failed to state a cause of action. Counsel, however, has cited no cases in support of this contention; and we have been unable to find any in the reported cases of the appellate courts of this State or of other jurisdictions.
*352 Both this court and the Supreme Court, on numerous occasions, have decided the question of whether or not a child of tender years is chargeable with contributory negligence in avoiding consequences of another's negligence. In McLarty v. Southern Ry. Co., 127 Ga. 161, 162 (56 S.E. 297), it was held that: "The care and diligence required of an infant of tender years is not fixed by any invariable rule with reference to the age of the infant or otherwise. It depends upon the capacity of the particular infant, taking into consideration his age as well as other matters. These are all questions for determination by the jury. See 3 Michie's Dig. 559 (aa), 561 (cc) and cit.; Manchester Mfg. Co. v. Polk, 115 Ga. 542, 545. In each case it is to be determined whether an infant of the age and capacity of the one in question would, under the circumstances of the case, be chargeable with negligence on account of his conduct at the time of the transaction under investigation."
Courts of this State have consistently held, however, that a child of six years of age and under could not as a matter of law be guilty of contributory negligence. Red Top Cab Co. v. Cochran, 100 Ga. App. 707 (112 SE2d 229); Riggs v. Watson, 77 Ga. App. 62 (47 SE2d 900) (child of age, 5 years, 2 months, 25 days); Anthony v. Dutton, 73 Ga. App. 389 (36 SE2d 836) (4 1/2 years); Crawford v. Southern Ry. Co., 106 Ga. 870 (33 S.E. 826) (4 1/2 years); Christian v. Smith, 78 Ga. App. 603 (51 SE2d 857) (5 years). The courts have also consistently held that as to a child over seven years old it is a question for the jury. Mayor &c. of Madison v. Thomas, 130 Ga. 153 (3) (60 S.E. 461) (7 1/2 year old child); Huckabee v. Grace, 48 Ga. App. 621 (173 S.E. 744) (8 year old child); Savannah, Fla. &c. Ry. Co. v. Smith, 93 Ga. 742 (21 S.E. 157) (9 year old child). As to a child seven years of age there exists some conflict of authority. In Harris v. Combs, 96 Ga. App. 638, 643 (101 SE2d 144), it was held that a seven year old child was too young to be guilty of contributory negligence. However, in the earlier cases of Cohn v. Buhler, 30 Ga. App. 14 (116 S.E. 864); Simmons v. Atlanta & W. P. R. Co., 46 Ga. App. 93 (166 S.E. 666); and Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752 (92 SE2d 720), it was held that a jury question as to the due care to be exercised by a seven year old child was presented.
*353 Thus, it seems well established in this State that it would be a question for the jury's determination as to whether an eight year old child, the age of the present defendant, could be guilty of contributory negligence in regard to the transaction under investigation. It is contended by counsel for the defendant that it might be argued with logic that because of the early development of the instinct for self preservation a child becomes capable of contributory negligence before he has the ability to make the more sound judgment as to the likelihood that another will be harmed by his conduct. It appears, however, that the courts of other jurisdictions have taken the view that the same tests should be applied in determining both primary and contributory negligence. See Annotations, 67 A.L.R. 2d 570; 174 A.L.R. 1170; 173 A.L.R. 890; 73 A.L.R. 1277; 27 Am. Jur. 813, Infants, § 91.
In the absence of any authority in this jurisdiction with reference to the question of the primary negligence of a child of tender years and being unable to ascertain any sound or legally justifiable reasons for applying a different standard with respect to primary negligence than that applied to contributory negligence, we do not think that it can be said that a child of eight years of age is as a matter of law incapable of being guilty of primary negligence. Accordingly, the instant petition stated a cause of action against the infant defendant, it being a question for the jury to determine whether this defendant was of an age capable of exercising some degree of care, what degree of care was required of him, and if he violated that degree of care in respect to his conduct in the matter under investigation. See Code § 105-204.
(b) Since under Code § 26-302 an infant under the age of 10 years shall not be considered or found guilty of any crime or misdemeanor, we do not think the violation of a penal ordinance of the city of Dalton, Georgia, prohibiting the discharge of air rifles within the vicinity of said municipality by this eight year old defendant, can be considered as an act of negligence per se. Accordingly, the trial judge erred in overruling the demurrers to paragraph 48 of the petition and in refusing to strike the same from the amended petition.
*354 2. (a) The instant petition which alleges that the defendant Harold E. Faith was negligent in furnishing the air rifle to his son who was inexperienced in handling weapons of such character and in making the gun accessible to the child and in allowing him to shoot it in a residential section unsupervised by the father or any other mature person, clearly stated a cause of action against the father for his original negligence in procuring and furnishing to a minor of eight years of age this instrumentality. Accordingly, the trial court did not err in overruling the general demurrer of this defendant.
(b) Nor did the trial court err in overruling the demurrer to paragraph 49 of the petition as applied to this defendant. This paragraph set forth an ordinance of the city of Dalton making it unlawful for any parent having custody of any child under 12 years of age to permit such child to have in his possession any air-rifle or "BB" gun within the corporate limits of said municipality, and alleged that the violation of same was negligence per se. We think it clear that this ordinance was enacted for the purpose of protecting the person and property of the inhabitants of that community and that accordingly a violation of same may constitute negligence per se. Huckabee v. Grace, 48 Ga. App. 621, supra.
3. Under Code § 49-102 the father, if alive, is the natural guardian of his minor child and as such is entitled to its custody and management. Taylor v. Jeter, 33 Ga. 195 (81 AD 202); Lamar v. Harris, 117 Ga. 993 (44 S.E. 866); Williman v. Williman, 138 Ga. 188 (74 S.E. 1077). Under the allegations of the instant petition it was the father who procured the "BB" gun and furnished it to his minor child for his use. Whatever moral right the mother may have had to voice the claims of motherhood and protest this action, it is our opinion that there was no legal duty devolving upon her, generally, to oppose her husband's will and prevent the use of this gun by her son. The proper regard for the sanctity of the parental relation demands this finding. The mother is not chargeable with the negligence of the father merely because of the conjugal relation existing between them. Nor is the mother negligent in simply failing to keep a constant and unremitting watch and restraint over her children. See Atlanta *355 & Charlotte Airline Ry. Co. v. Gravitt, 93 Ga. 369 (20 S.E. 550, 26 LRA 553, 44 ASR 145).
Accordingly, it is our opinion that neither the allegations of the petition which aver generally that the mother was negligent in permitting the use of the gun and its easy accessibility to her son nor the allegations which contend that the mother was negligent in remaining in the house and leaving her son unsupervised while in the yard and in failing to determine that the son had possession of the gun and was firing it, in the absence of allegations of knowledge of the actual circumstances on the part of the mother, stated a cause of action against the mother. Nor do we think that the ordinance enumerated in division 2 had application to the mother since the father was the parent having the custody and control over the minor son.
Accordingly, the trial judge erred in overruling the demurrers of this defendant to the petition.
Judgment affirmed in part and reversed in part. Townsend, P.J., and Frankum, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322909/ | 238 S.C. 565 (1961)
121 S.E.2d 105
HUCKABEE TRANSPORT CORPORATION, Respondent,
v.
WESTERN ASSURANCE COMPANY OF TORONTO, CANADA, Appellant.
17810
Supreme Court of South Carolina.
July 26, 1961.
*566 Joseph L. Nettles, Esq., of Columbia, for Appellant.
Dalton R. Stokes, Esq., of Columbia, for Respondent.
*567 July 26, 1961.
MOSS, Justice.
Huckabee Transport Corporation, the respondent herein, instituted this action against Western Assurance Company of Toronto, Canada, the appellant herein, alleging that it breached its contract of insurance by failing to pay to the respondent the amount of a judgment recovered against it by Hoover Motor Express, Inc., on account of damages done to a certain air conditioning unit, together with costs and counsel fees. The respondent asserted in the complaint that it was entitled to recover the amount of such judgment, costs and counsel fees under the terms and provisions of a Motor Truck Cargo Liability policy issued by the appellant to the respondent. The appellant denied liability for the loss under the terms of the policy which it admittedly issued to the respondent.
This case came on for trial before Honorable Legare Bates, presiding Judge of the Richland County Court, and a jury, at the 1959 December term of said court. At the conclusion of the testimony, the respondent and appellant each moved for a direction of a verdict in its behalf. The trial Judge ruled that the evidence adduced at the trial presented no issues of fact for determination by the jury and that the only question to be determined was whether or not the loss sustained by the respondent was covered by the terms of the *568 aforesaid policy. The case was withdrawn from the consideration of the jury and the legal question was taken under advisement by the trial Judge. Thereafter, on February 8, 1960, he handed down his order granting judgment in favor of the respondent against the appellant in the amount of $3,650.53. Within due time the appellant gave notice of intention to appeal to this Court. The exceptions of the appellant raise the question of whether the loss of the respondent was within the coverage afforded by the aforementioned policy of cargo insurance.
It appears from the record that Hoover Motor Express Co. Inc., a common carrier, received at Collins Air Force Base, Mississippi, certain freight for delivery to Shaw Air Force Base near Sumter, South Carolina. This freight was to be carried by Hoover from the point of origin to Atlanta, Georgia, and it was there delivered to Huckabee, as connecting carrier, for transportation from Atlanta to Shaw Air Force Base. The trailer load of freight was under Hoover's seal No. 8026 and Huckabee issued a bill of lading purporting to cover the entire shipment.
In the nose of the trailer delivered by Hoover to Huckabee was a thirty ton air conditioning unit which was supposed to have been delivered by Hoover to a consignee in Atlanta, Georgia, but was left upon the trailer delivered to Huckabee, through some error of Hoover, and without knowledge of Huckabee, until after the accident in which the air conditioning unit was damaged.
The record shows that a portion of the load of freight extended higher than and protruded above the top of the trailer. It further appears that on May 23, 1956, while in transit, the tractor-trailer was driven under an overhead bridge in Columbia, South Carolina, and the load collided with the under side of such overhead bridge, damaging the air conditioning unit and other freight being hauled in said trailer.
The record reveals that Huckabee promptly notified the appellant of the damage to the air conditioning unit and the *569 other freight being hauled on the tractor-trailer. The appellant promptly paid the damage to that portion of the freight which was being transported by Huckabee under a bill of lading, but refused to pay for the damage to the air conditioning unit because the respondent was not a common carrier thereof within the terms of coverage afforded by the cargo policy of insurance issued by the appellant. It further appears that Hoover sued Huckabee for the damage to the air conditioning unit in the Circuit Court of Davidson County, Tennessee, and obtained a judgment therefor. This judgment, together with costs and attorneys' fees, was paid by Huckabee. The present action, as is heretofore stated, seeks reimbursement from the appellant for the amount of such judgment, together with the costs of defending the Tennessee action. It should here be stated that the appellant refused to defend the action brought in Tennessee.
The policy sued upon, in consideration of the stipulations and conditions contained therein and the premium paid, insured the respondent as follows:
"1. To an amount not exceeding Ten Thousand and No/ 100 Dollars in any one casualty, and not exceeding the amount of insurance specified below with respect to goods and merchandise on any one truck or trailer, against the Assured's liability to others as a private or common carrier, or under bills of lading or shipping receipts, for loss of or damage to lawful goods and merchandise consisting of General Merchandise caused directly by any of the perils enumerated below for which loss or damage the Assured may be held legally liable.
"2. This insurance shall attach and cover only with respect to such loss or damage occurring within the Continental United States and Canada, and, except as hereinafter provided, only while the said goods are in the custody of the Assured and in due course of transit. * * *"
The policy in question insures
"4. The liability of the Assured for loss or damage caused by * * *
*570 "(d) Accidental collision of any above described truck or trailer with any other vehicle or object. * * *"
Under section 4(d) of the policy of insurance in question, the liability of the assured for loss or damage was limited to the accidental collision of the truck or trailer with any other vehicle or object. However, by proper endorsement to said policy, it was provided that "this policy is extended to insure the legal liability of the Assured for direct loss or damage caused by collision of the load with any object." The record is conclusive of the fact that the "load" was in collision with the under side of an overhead bridge. The amount of the loss in this case is not questioned by the appellant.
Frequently, motor cargo carriers, either for their own protection or because required to do so by statutory regulations, procure insurance on the property of others transported by them. 36 A.L.R. (2d) 506. In determining whether particular property shipped is covered, the courts have exhibited a tendency toward construing motor cargo carrier policies broadly. Motor carrier cargo policies usually enumerate the particular perils insured against and the conditions upon which liability arises.
The quoted portion of the policy issued by the appellant to the respondent show that it covers the assured's liability to others for loss of or damage to goods while being carried by the respondent as private or common carrier or under bills of lading or shipping receipts. It is readily seen that the word "or" is used throughout the basic insuring agreement. The word "or" as it is used in the insuring agreement, is a co-ordinating conjunction introducing an alternative, Bordelon v. National Life & Accident Ins. Co., La. App., 187 So. 112; Erie R. Co. v. American Auto. Ins. Co., 36 N.J. Super. 159, 114 A. (2d) 873. In Houge v. Ford, 44 Cal. (2d) 706, 285 P. (2d) 257, it was held that the function of the word "or" in a contract is to mark an alternative such as "either this or that." Applying *571 this rule to the provision of the insurance policy above referred to, it is clear that there was no requirement that the goods be transported by the insured as a private or common carrier and under a bill of lading or shipping receipt. The policy provides coverage in the event that the assured is transporting the goods either as a private or common carrier. There is no requirement that such carriage be under a bill of lading or a shipping receipt because this is the alternative of the insuring agreement. Certainly the respondent received the air conditioning unit as a carrier. It is not necessary to a decision of this case for us to determine whether it was received by the respondent as a private or common carrier since the result would be the same, because the respondent was insured as a private or common carrier. However, attention is directed to the fact that the policy contains an endorsement in conformity with section 58-1481 of the 1952 Code of Laws of South Carolina, which requires a motor carrier to file with the Public Service Commission a liability and property damage insurance policy in order to qualify as a common carrier.
A "carrier", according to the legal usage of the term, is one who undertakes to transport persons or property from place to place. Windham v. Pace et al., 192 S.C. 271, 6 S.E. (2d) 270. A "common carrier" is one who undertakes for hire to transport from place to place the property of others who may choose to employ him, offering such services to the public generally, and neither the maintenance of a station nor the issuance of a bill of lading is required. United States v. Smith, 6 Cir., 215 F. (2d) 217. A "private carrier" is one undertaking to deliver goods in a particular case for hire or reward without being engaged in business of carrying as public employment. McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499. It has been held that a "common carrier" may become a "private carrier" when he undertakes to carry something which it is not his business to carry. Mengel Co. v. Inland Waterways Corporation, D. C., 34 F. Supp. 685.
*572 It is the position of the appellant that the coverage of the policy here in question only applied, with respect to loss or damage, "while the said goods are in the custody of the assured and in due course of transit." There can be no question but that the air conditioning unit here involved was in the custody, control and possession of the respondent at the time it was damaged. Was it in due course of transit?
The undisputed evidence shows that the respondent received a full trailer of freight, under seal, including the air conditioning unit, in the ordinary course of its business as a carrier. The respondent did not know that the air conditioning unit was erroneously left upon the trailer by Hoover, the originating carrier. It was testified in behalf of the respondent, with reference to what a trailer under seal is, as follows:
"Well, a trailer under seal would be a trailer a carrier receives either from a shipper or another carrier which had a seal in the back of the door which, of course, has a number on it, and by affixing that seal the carrier receiving the load does not actually count or see the merchandise that's on that trailer but accepts it as described on the freight bill under the seal indicating that no actual check of the freight was made."
The testimony also shows that it is a common practice and customary for a connecting carrier to receive and accept fully loaded trailers and vans, under seal, without making any examination of the goods and merchandise upon such trailer or van. It was further testified that at the particular time here involved, the respondent was receiving many full loads of merchandise from Hoover in Atlanta, Georgia, moving to Shaw Field, Sumter, South Carolina. It was also testified that it was common knowledge that anyone familiar with the trucking business knows that there are transfers of fully loaded trailers, under seal, from one trucking line to another, without the receiving trucking line knowing the *573 contents of the shipment, other than what is revealed on the bill of lading or shipping receipt. Here, the respondent received the fully loaded trailer, under seal, from Hoover in the ordinary course of its business, and was moving same in due course of transit. When the "due course of transit" provision of the policy is read in conjunction with the provision of coverage concerning insured's liability to others as a private or common carrier, or under bills of lading, or shipping receipts, it is clear to us that the fully loaded truck, under seal, was in due course of transit. The trial Judge so held and we agree with such conclusion. The fact that there was an overcarriage of the air conditioning unit does not require a finding that the fully loaded trailer, under seal, was not in due course of transit. Under the facts of this case, we think the lower Court was correct in holding that the cargo policy of insurance issued by the appellant to the respondent covered the loss of and damage to the air conditioning unit. The appellant could have limited its liability by providing in the motor truck cargo liability policy issued by it, that merchandise lost or damaged would not be covered unless the same was being transported under a bill of lading or shipping receipt. This it did not do.
The exceptions of the appellant are overruled and the judgment of the lower Court is affirmed.
TAYLOR, C.J., and OXNER, LEGGE and LEWIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322922/ | 202 Va. 913 (1961)
JEANNE MURPHY
v.
J. L. SAUNDERS, INCORPORATED.
Record No. 5262.
Supreme Court of Virginia.
September 8, 1961.
Morris H. Fine (Jerrold G. Weinberg, on brief), for the plaintiff in error.
Robert G. Winters (Pilcher, Underwood, Pilcher & Winters, on brief), for the defendant in error.
Present, Eggleston, C.J., and Buchanan, Whittle, I'Anson and Carrico, JJ.
1. While in defendant's market plaintiff reached for a can of lemon juice stacked on a top shelf above her head. She braced herself with her left hand on the shelf some two and a half feet to the left, and as she did so cans stacked there fell, one striking her hand. For the resulting injury she sought damages on the theory the cans were negligently stacked. But her evidence, which showed only that they were stacked four or five high and fell, left the cause of their fall a matter of conjecture and raised no presumption of negligence since the doctrine of res ipsa loquitur was inapplicable.
2. In personal injury actions negligence cannot be presumed from the mere happening of the accident. Plaintiff must show why and how the accident happened and that defendant's negligence was the proximate cause. Defendant in the instant case not being an insurer of plaintiff's safety and she having proved no actionable negligence, the court correctly struck her evidence.
Error to a judgment of the Court of Law and Chancery of the city of Norfolk. Hon. J. Hume Taylor, judge presiding. The opinion states the case.
WHITTLE
WHITTLE, J., delivered the opinion of the court.
Mrs. Murphy filed a motion for judgment seeking damages for personal injuries allegedly caused by the negligence of J. L. Saunders, *914 Incorporated, the operator of a super food market known as "Be-Lo Market".
Plaintiff was the only witness to testify regarding the accident. It was agreed between counsel that no medical evidence would be placed before the jury until the court passed upon defendant's anticipated motion to strike plaintiff's evidence. Accordingly, after plaintiff's testimony, defendant made a motion to strike, which the court sustained and entered summary judgment for the defendant. We granted Mrs. Murphy a writ of error.
It is agreed that the sole question before us is: Did the court err in striking plaintiff's evidence and entering summary judgment for the defendant?
The motion for judgment alleged "that as the result of the negligence of the defendant certain cans of juice fell on the plaintiff" as a proximate result of which she suffered injuries. In answering the motion for judgment the defendant denied any negligence on its part and prayed for a bill of particulars. The bill of particulars asserted that the defendant was guilty of the following acts of negligence:
"(a) The negligent stacking on top of one another of small circumference juice cans not in line with one another."
"(b) The negligent stacking of small circumference juice cans in tall stacks."
"(c) The negligent stacking of small circumference juice cans on unstable shelving."
"(d) The negligent stacking of cans out of the reach of the plaintiff."
"(e) The negligent failure to provide a ladder so that the plaintiff could safely reach the cans in question which were placed out of her reach."
"(f) Other acts of negligence as may appear during the course of the trial of this case."
The facts, stated in the light most favorable to the plaintiff, show that Mrs. Murphy, a fifty-four-year-old nurse, entered the Be-Lo Market in the city of Norfolk where she had gone "to do a little purchasing" and had "picked up a couple of things" when she went to the juice counter to get a can of lemon juice. The juice cans which were on the top shelf stacked "four or five cans tall" were over the head of the plaintiff who is five feet one inch in height. She saw she would have difficulty in reaching the lemon juice so "she braced herself" by putting her left hand on the top shelf while standing on the *915 floor; her left hand with which she braced herself "was just about two and a half feet away from the lemon juice." Before her right hand came in contact with the lemon juice can for which she was reaching she felt a "thud" on her left hand. She immediately pulled her left hand away and saw that a can of V-8 juice from the top shelf had fallen on her hand. She never touched the V-8 cans which contained six ounces of juice. Prior to the accident she had not noticed how the V-8 cans were stacked as she "was just going to get a can of lemon juice", but after the cans had fallen and her left hand was injured by a falling can she noticed that these cans "were stacked four and five tall." A six-ounce can of V-8 juice (2 2/10 inches in diameter and 4 inches tall) was introduced in evidence.
Plaintiff testified in response to her counsel's questions:
"Q. Then what happened?"
"A. Well, I saw that I could not reach it exactly that way, so with my left hand I braced myself on the shelf, and as I reached for the can of lemon juice, before this hand got in contact with the juice I felt this thud on this hand (left). I immediately pulled it away. I noticed that these cans of V-8 had fallen, which were at least three feet away from the lemon juice, which my hand had never touched. I pulled my hand away and noticed the finger begin to swell right away. * * *"
"Q. Did you see these cans stacked?"
"A. Yes. They were stacked four and five tall, one on top of the other."
"Q. Did you see them before you reached for the lemon juice can?"
"A. I never had occasion to notice. I was just going to get a can of lemon juice. But, I never noticed how they were stacked then. But, after this fell on my hand, then I noticed these cans had fallen. They fell to the right. They didn't fall that way; they fell this way, where my hand was. No lemon juice cans had fallen. Nothing had fallen on that side at all. At was just about two and a half feet away from the lemon juice that they had fallen on my hand. * * *"
Neither the height of the shelving nor its construction is disclosed in the evidence; nor is it definitely shown why Mrs. Murphy had to brace herself "on the shelf" and reach for the can of lemon juice.
Plaintiff contends that as her evidence shows the cans of V-8 juice were "stacked four and five high and that they fell", this gives rise to a presumption that the cans were negligently stacked.
In order to draw this presumption the doctrine of res ipsa loquitur *916 must be invoked. It is not contended that this doctrine is applicable. It is conceded that the items here involved were not in the exclusive control of the defendant but were accessible to customers who could disarrange them.
Plaintiff's own testimony shows that she did not observe the V-8 cans before they fell. In order for a jury to find that the cans were negligently stacked it would be necessary for it to enter the realm of speculation and conjecture. There is as much possibility that the weight placed upon the shelf by Mrs. Murphy when she "braced herself" caused the cans to fall as that the cans fell from improper stacking. The only evidence here is that the cans fell, and this in itself does not give rise to the presumption that they were negligently stacked.
Plaintiff relies heavily upon the annotation in 20 A.L.R.2d, page 95, dealing with "Liability for injury to customer or other invitee in store by falling of displayed, stored, or piled objects." In the summary to this annotation (page 97) it is said: "(The) storekeeper is liable only for the acts of himself or his agents and employees, and recovery has been denied where it appeared equally probable that the fall of the goods was caused by something other than the defendant's negligence."
This annotation refers to the New Jersey cases relied on by the plaintiff. The case of Cohen Penn Fruit Co., 192 Pa. Super. 244, 250, 251, 159 A.2d 558, 561, reviews the New Jersey doctrine, and in a review of the case of Francois American Stores Co., 46 N.J.Super. 394, 134 A.2d 799, it is said:
"The New Jersey courts applied the doctrine of res ipsa loquitur, which has been repeatedly rejected by Pennsylvania in this type of situation."
The opinion in the Cohen case, continuing, says:
"In the instant case the appellant claims the can fell from a completely different and disconnected stack from the one from which she had selected her purchase."
"Because there are so many uncertainties in the plaintiff's case and because several possibilities of the cause of the accident were indicated but none clearly shown, a verdict in the plaintiff's favor would not be tenable since it is the burden of the plaintiff to individuate that cause for which the defendant is liable. Foley Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517;"
Lott Peoples Natural Gas Co., 324 Pa. 517, 188 A. 582, 585.""
See also 38 Am. Jur., Negligence, || 299, 300, pp. 995, 996. *917
While the factual situation in the instant case is one of first impression in Virginia, our reasoning in other negligence cases controls the situation here. The rule adhered to in Virginia is that in personal injury actions such as this, negligence cannot be presumed from the mere happening of the accident. The burden is upon the plaintiff to prove that the accident was due to the negligence of the defendant as a proximate cause. What is proved must establish more than a probability of negligence. Inferences must be based on facts, not on presumptions. It is incumbent upon the plaintiff to show why and how the accident happened. If that is left to conjecture, guess or random judgment, the plaintiff is not entitled to recover. Guthrie Carter, 190 Va. 354, 358, 57 S.E.2d 45, 46; Beer Distributors, Inc. Winfree, 190 Va. 521, 524, 525, 57 S.E.2d 902, 903; Holland Harrell, 190 Va. 613, 618, 58 S.E.2d 1, 3; Robey Richmond Coca-Cola Bot. Wks., 192 Va. 192, 197, 198, 64 S.E.2d 723, 726, 727; Barnes Barnes, Adm'r., 199 Va. 903, 906, 907, 103 S.E.2d 199, 201.
The defendant was not an insurer of plaintiff's safety. The measure of defendant's duty to plaintiff was that of ordinary care. Jamison Richardson, 198 Va. 190, 193, 93 S.E.2d 140, 143.
We agree with the lower court that no actionable negligence has been proved, and the judgment is
EGGLESTON, C.J., and I'ANSON, J., dissenting.
Affirmed.
EGGLESTON
EGGLESTON, C.J., dissenting:
In my opinion, the undisputed evidence submitted by the plaintiff presented a question for the jury as to whether these cans had been stacked in a hazardous and negligent manner.
The majority opinion states: "The only evidence here is that the cans fell, and this in itself does not give rise to the presumption that they were negligently stacked." I agree that the fact that the cans fell raises no presumption that they were negligently stacked and the plaintiff makes no such contention. But her evidence goes beyond proving merely that "the cans fell." She not only proved that, but also that they were "stacked four and five tall, one on top of the other," and that they extended above her head. She also introduced in evidence one of the cans, which the majority opinion states is 4 inches tall and has a base diameter of only 2.2 inches. *918
The plaintiff further testified that she "never touched" the stack of cans from which the dislodged can fell. Nor is there any evidence to support the suggestion in the majority opinion of the "possibility" that when she "braced" herself she caused the can to fall.
As I read the plaintiff's pleadings and brief she does not make the contention attributed to her in the majority opinion that the fact that the cans were stacked in the manner described and that they fell, gives "rise to the presumption that they were negligently stacked." Her case is not grounded on a presumption of negligence. As stated in her brief, her case is that an inspection of the can introduced in evidence "is enough to satisfy reasonable minds that the stacking of such cans four and five in height constitutes a hazardous and dangerous condition as to innocent customers passing nearby." I agree with the plaintiff that the jury had the right to determine from an inspection of these cans and a consideration of their size, type and character whether it was negligence on the part of the storekeeper to stack them in the manner described by her. This is a simple issue which may be easily resolved by jurors endowed with average intelligence and common sense.
It is a matter of common knowledge that articles of this size, character and type may not be securely "stacked four and five tall, one on top of the other." Juries as well as courts take judicial notice of such matters of common knowledge and hence they need not be proven. 20 Am. Jur., Evidence, | 28, p. 55.
I would reverse the judgment and remand the case for a trial on the merits.
JUSTICE I'ANSON joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322712/ | 676 S.E.2d 669 (2009)
ROBERTS
v.
ROBERTS.
No. COA08-404.
Court of Appeals of North Carolina.
Filed May 19, 2009.
Certification Date June 8, 2009.
Case reported without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322698/ | 676 S.E.2d 448 (2009)
MUSEUM TOWER CONDOMINIUM ASSOCIATION, INC.
v.
The CHILDREN'S MUSEUM OF ATLANTA, INC.
No. A09A0192.
Court of Appeals of Georgia.
March 26, 2009.
*449 Weinstock & Scavo, Elizabeth A. Frey, Atlanta, for appellant.
Troutman Sanders, Daniel S. Reinhardt, Atlanta, for appellee.
JOHNSON, Presiding Judge.
The Museum Tower Condominium Association, Inc. (the "Association") sued one of its members, the Children's Museum of Atlanta (the "museum"), to resolve a dispute over the museum's monthly association fee. The parties filed cross-motions for summary judgment, and the trial court granted summary judgment to the museum. For reasons that follow, we affirm.
Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law.[1] The undisputed evidence shows that the Museum Tower Condominium is a mixed-use development consisting of two commercial and 167 residential units. The museum owns a ground-floor commercial unit in the development. As a unit owner, the museum is a member of the Association and is governed by the development's Declaration of Condominium (the "Declaration").
Under the Declaration, the Association may levy monthly assessments on members to meet the development's common expenses. The term "common expenses" includes payments made to maintain, repair, replace, and operate the development's "common elements," which consist of all property located outside of the actual condominium units. Association members own the common elements as tenants-in-common, and common expenses are generally "assessed against all the Units in accordance with the percentage of undivided interest."
Not all common elements, however, are accessible to every unit owner. The Declaration defines a number of "limited common elements" that are reserved for exclusive use by specified units. For example, Section 6(a)(i) of the Declaration identifies numerous facilities that may only be used by the development's residential units:
[T]he lobby, elevators, elevator lobbies, elevator shafts, hallways, corridors, stairs, roof, roof deck, mail area, mechanical rooms, maintenance rooms, fire alarm control system, dumpster, trash chutes, concierge desk, fitness facility, swimming pool, guest suite, business center, conference room, club room which exclusively serve and are exclusively accessed by the Residential Units, and all other Common Elements exclusively serving and exclusively accessed by the Residential Units in the core building . . . are assigned as Limited Common Elements to the Residential Units.
Through 2006, the Association consistently assessed the museum $3,074 in monthly association fees. In the fall of that year, however, the Association determined that this historical assessment did not reflect the museum's 12.64 percent ownership interest in all of the condominium's common elements, including the limited common elements assigned exclusively to the residential units. *450 The Association, therefore, increased the museum's monthly assessment for 2007, using the 12.64 percent ownership figure to calculate the new amount and allocate a percentage of all expenses to the museum.
The museum objected to the new assessment, asserting that it had no access to and no financial responsibility for the limited common elements assigned to the residential units. When the museum refused to pay the increased sum, the Association brought suit, seeking judicial approval of its recalculation. Both parties then moved for summary judgment. Concluding that the museum should not be required to pay a percentage of all expenses, the trial court rejected the Association's calculation and granted the museum's motion. We find no error.
Ultimately, this dispute centers on the proper interpretation of the Declaration. The relationship between a condominium association and its members is contractual, and condominium documents such as the Declaration are "analogous to an express contract between the unit owners/members and the condominium association."[2] These documents must be "strictly construed as they are written, giving the language its clear, simple, and unambiguous meaning."[3]
As discussed above, unit owners generally share common expenses according to their ownership interest in the development. This shared liability, however, is not absolute. Addressing expense allocation, Section 8 of the Declaration states:
(a) Except as provided below . . . the amount of all Common Expenses shall be assessed against all the Units in accordance with the percentage of undivided interest in the Common Elements appurtenant to the Unit.
(b) The Board of Directors shall have the power to levy special assessments against Units pursuant to this Paragraph . . . as, in its discretion, it shall deem appropriate.
(i) Any Common Expenses benefiting less than all of the Units or significantly disproportionately benefiting all Units shall be specially assessed equitably among all of the Units which are benefited according to the benefit received. Any and all expenses associated with the Limited Common Elements . . . shall be specially assessed among all of the Unit or Units to which the Limited Common Element is assigned. . . .[4]
By the Declaration's clear terms, numerous common elements including the development's pool, fitness facility, roof deck, mail area, trash facilities, and mechanical rooms are unavailable to commercial unit owners such as the museum. Nevertheless, the Association seeks to hold the museum responsible for expenses relating to these elements. It acknowledges the special assessment provision in Section 8(b)(i), but argues that Section 8(b) grants the Association's Board of Directors discretion to determine whether to specially assess such expenses. According to the Association, if the Board elects not to levy a special assessment, the general apportionment language in Section 8(a) applies, and each owner must pay its proportionate share of the expenses.
We disagree. The cardinal rule of contract construction is to ascertain the parties' intent.[5] To this end, the contract document must be viewed as a whole, and we seek to give meaning to every part of the contract.[6] We must also remember that "a limited or specific provision will prevail over one that is more broadly inclusive."[7]
Read as a whole, the Declaration establishes that common expenses will be shared proportionately by all unit owners. But this broad principle is restricted by the requirement that expenses associated with limited common elements be specially assessed. *451 And although the Board generally has discretion in determining when and how to make special assessments, the Declaration narrows that discretion by mandating that the Board specially assess limited common element expenses in accordance with Section 8(b)(i).
The parties intended to remove the limited common element expenses from the general pool of "common expenses" and apportion them specially among the assigned unit owners. To find otherwise would ignore the language of Section 8(b)(i), elevate a general provision over a specific restriction, and undermine the parties' intent. Accordingly, the trial court properly granted summary judgment to the museum.[8]
Judgment affirmed.
ELLINGTON and MIKELL, JJ., concur.
NOTES
[1] See OCGA § 9-11-56(c).
[2] (Citation and punctuation omitted.) King v. Chism, 279 Ga.App. 712, 714(1), 632 S.E.2d 463 (2006).
[3] (Citation and punctuation omitted.) Id.
[4] (Emphasis supplied.)
[5] Lay Bros., Inc. v. Golden Pantry Food Stores, 273 Ga.App. 870, 872(1), 616 S.E.2d 160 (2005).
[6] Id.; OCGA § 13-2-2(4).
[7] (Citation and punctuation omitted.) Lay Bros., supra at 872-873(1), 616 S.E.2d 160.
[8] See King, supra at 716(2), 632 S.E.2d 463; Lay Bros., supra at 872-874(1), 616 S.E.2d 160. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322775/ | 676 S.E.2d 79 (2009)
MERRITT, FLEBOTTE, WILSON, WEBB & CARUSO, PLLC, A North Carolina Limited Liability Corporation, Plaintiff,
v.
Aaron C. HEMMINGS, Kelly A. Stevens, and Hemmings & Stevens, P.L.L.C., A North Carolina Limited Liability Corporation, Defendants and Third Party Plaintiffs,
v.
Pre-Paid Legal Services, Inc., James Merritt, Daniel R. Flebotte, Joseph M. Wilson, Joy Rhyne Webb, and Heather Caruso, Third Party Defendants.
No. COA08-1333.
Court of Appeals of North Carolina.
May 5, 2009.
*82 Glenn, Mills, Fisher & Mahoney, P.A., by William S. Mills, Durham, for Plaintiff-Appellees/Third Party Defendant-Appellees.
Crawford & Crawford, LLP, by Robert O. Crawford, III, and Heather J. Williams; and Hemmings & Stevens, P.L.L.C., by Aaron C. Hemmings and Kelly A. Stevens, Raleigh, for Defendant-Appellants/Third Party Plaintiff-Appellants.
BEASLEY, Judge.
Defendants/Third Party Plaintiffs (Aaron C. Hemmings, Kelly A. Stevens, and Hemmings & Stevens, P.L.L.C.) (hereafter Defendants) appeal from an order denying their motion to compel discovery and granting summary judgment in favor of Plaintiff-Appellees/Third Party Defendant-Appellees (Merritt, Flebotte, Wilson, Webb & Caruso, PLLC; Pre-Paid Legal Services, Inc., James Merritt, Daniel R. Flebotte, Joseph M. Wilson, Joy Rhyne Webb, and Heather Caruso) (hereafter Plaintiffs). We affirm.
The relevant facts may be summarized as follows: Defendants Aaron Hemmings and Kelly Stevens are attorneys who are licensed to practice law in North Carolina. They previously were associates at the firm of Browne, Flebotte, Wilson & Webb, (Brown, Flebotte) the predecessor of Plaintiff law firm Merritt, Flebotte, Wilson, Webb & Caruso (Merritt, Flebotte). In September 2005 Hemmings and Stevens left Brown, Flebotte to start their own law practice (Hemmings & Stevens). Defendants kept some former clients after they left Plaintiff law firm, and disputes arose among the parties about division of attorney's fees and reimbursement of client costs that had been advanced by Brown, Flebotte. These disagreements led to litigation, which ended on 24 February 2006, when the parties executed a settlement agreement that resolved the parties' claims and counterclaims, addressed disbursement of fees and repayment of costs, and provided that its terms would remain confidential and that the parties would not "intentionally or knowingly make any false statements about each other or statement[s] which would be considered defamatory, or injurious to the reputation of the other parties."
On 11 June 2007, Plaintiffs filed a new lawsuit against Defendants, asserting that Defendants had failed to pay Plaintiffs the money owed under the settlement agreement, and had improperly disbursed attorney's fees to themselves. Plaintiffs sought an accounting of the attorney's fees received in cases covered by the settlement agreement, damages for breach of contract, and an injunction requiring Defendants to retain in trust the fees and costs for cases covered by the settlement agreement.
On 24 July 2007, Defendants filed an answer denying the material allegations of Plaintiffs' complaint and asserting that Plaintiffs' "substantial and material" breaches of the parties' contract excused their non-performance and refusal to make payments owed under the settlement agreement. With their answer, Defendants also filed a counterclaim against Plaintiffs for breach of contract, slander per se, and invasion of privacy or misappropriation of likeness. Defendants alleged: (1) that after Defendants left Plaintiff law firm, the Plaintiffs' website continued to list Defendants as attorneys with the firm; (2) that Plaintiffs had made a "demand" for repayment of "fraudulent expenses", and; (3) that Plaintiffs had made "false and defamatory" statements about Defendants.
In addition, Defendants filed a third party complaint against James Merritt, Daniel R. Flebotte, Joseph M. Wilson, Joy Rhyne Webb, Heather Caruso, and Pre-Paid Legal Services, Inc. The third party complaint made essentially the same assertions as the counterclaim, and sought similar relief. Defendants later dismissed their claims against Pre-Paid Legal Services, which is not a party to this appeal. Defendants also moved for dismissal of Plaintiffs' claims for insufficiency *83 of service of process, failure to state a claim for relief, previous dismissal of the same claims, false and scandalous allegations, res judicata and collateral estoppel; their motions to dismiss were denied by the trial court on 11 September 2007.
On 26 September 2007 Plaintiffs filed a reply to Defendants' counterclaim and an answer to Defendants' third party complaint. Plaintiffs denied the material allegations, asserted defenses, and moved for dismissal of Defendants' claims. On 28 March 2008 Defendants filed a motion to compel discovery, seeking an order compelling Pre-Paid Legal Services to respond to Defendants' interrogatories and requiring Defendant Joy Webb to answer questions about the firing of an employee. On 16 May 2008 Plaintiffs filed a motion for summary judgment on all claims and counterclaims.
On 9 June 2008 the trial court entered an order granting Plaintiffs' motions for summary judgment and denying Defendants' motion to compel discovery. The order granted summary judgment in favor of Plaintiffs, ordered Defendants to pay $256,834 for attorney's fees and $17,642.76 for costs advanced, and dismissed all of Defendants' counterclaims, defenses, and third party claims against Plaintiffs. Defendants have appealed the denial of their motion to compel discovery, the dismissal of their claims against Plaintiffs, and the entry of summary judgment in favor of Plaintiffs.
Standard of Review
Summary judgment is properly granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c)(2007). "The purpose of the rule is to avoid a formal trial where only questions of law remain and where an unmistakable weakness in a party's claim or defense exists.... `[A]n issue is genuine if it is supported by substantial evidence,' which is that amount of relevant evidence necessary to persuade a reasonable mind to accept a conclusion.... `[A]n issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action.'" Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d 118, 123-24 (2002) (quoting DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002); and Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972)) (citations omitted).
"The moving party bears the initial burden of coming forward with a forecast of evidence tending to establish that no triable issue of material fact exists." Briley v. Farabow, 348 N.C. 537, 543, 501 S.E.2d 649, 653 (1998) (citation omitted). "The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim." Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989) (citation omitted). "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." N.C. Gen.Stat. § 1A-1, Rule 56(e) (2007).
"When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party." Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001) (citations omitted). "All inferences of fact must be drawn against the movant and in favor of the nonmovant." Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992) (citations omitted).
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e). "A verified complaint may be treated as an affidavit *84 if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein." Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972) (citations omitted).
"Our Supreme Court has stated that a mediated settlement agreement constitutes a valid contract between the settling parties which is `governed by general principles of contract law.'" McClure Lumber Co. v. Helmsman Constr., Inc., 160 N.C.App. 190, 197, 585 S.E.2d 234, 238 (2003) (quoting Chappell v. Roth, 353 N.C. 690, 692, 548 S.E.2d 499, 500 (2001)). In resolving the issues raised on appeal, we treat the settlement agreement as a contract.
Defendants argue first that the trial court erred by granting summary judgment in favor of Plaintiffs on the parties' claims and counterclaims for breach of contract. We disagree.
As discussed above, "[t]he party moving for summary judgment has the burden of showing that there is no triable issue of material fact." Nicholson v. American Safety Utility Corp., 346 N.C. 767, 774, 488 S.E.2d 240, 244 (1997) (citations omitted). "If the movant demonstrates the absence of a genuine issue of material fact, the burden shifts to the nonmovant to present specific facts which establish the presence of a genuine factual dispute for trial." In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation omitted).
In the instant case, Defendants do not dispute that they have failed to pay the full amount of attorney's fees due to Plaintiffs under the terms of the contract. Defendants assert that their nonperformance is excused by Plaintiffs' substantial and material breaches of the contract. Defendants contend that they presented evidence of three breaches of the contract. With respect to each of these we conclude that (1) Plaintiffs supported their summary judgment motion with evidence showing that Defendants could not prove that there had been a breach of contract, and; (2) Defendants failed to produce evidence showing any issue of material fact.
Preliminarily, we address the scope of our review. In their answer and counterclaim to Plaintiffs' complaint, Defendants asserted that Plaintiffs had materially and substantially breached the parties' settlement agreement by breaching the contract's non-disparagement clause and by making a fraudulent demand for expense payments. At the summary judgment hearing, Defendants relied on the same allegations. On appeal Defendants again argue that Plaintiffs breached the contract by violating the non-disparagement clause and by demanding expenses that were not actually covered under the contract. We will address Defendants' arguments on these issues, which were asserted in Defendants' complaint and argued to the trial court.
However, on appeal Defendants also argue that Plaintiffs violated the parties' contract by "failing to timely accept or reject payments under the contract" and by "failing to act in good faith under the contract." These alleged breaches of contract were neither asserted in Defendants' pleadings nor argued before the trial court. The Supreme Court "has long held that issues and theories of a case not raised below will not be considered on appeal[.]" Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001) (citation omitted). See also N.C.R.App. P. 10(b)(1) ("to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make ... [and] obtain[ed] a ruling upon the party's request, objection or motion"). Accordingly, we do not consider these arguments.
Defendants contend that the evidence raised genuine issues of material fact about whether the Plaintiffs violated a "non-disparagement" clause in the settlement agreement. This clause states that "the parties agree that they will not intentionally or knowingly make any false statements about each other or statement[s] which would be considered defamatory, or injurious to the reputation of the other parties." Accordingly, *85 the clause does not apply to every "disparaging" remark, but only to statements of parties, and only if the party intentionally (1) makes a false statement about another party, or (2) makes a statement about another party that is defamatory or injurious to the party's reputation. "`Presumably the words which the parties select [for inclusion in a contract are] deliberately chosen and are to be given their ordinary significance.'" Wise v. Harrington Grove Cmty. Ass'n, 357 N.C. 396, 405, 584 S.E.2d 731, 738 (2003) (quoting Briggs v. American & Efird Mills, Inc., 251 N.C. 642, 644, 111 S.E.2d 841, 843 (1960)).
Defendants assert that Brad Rhyne, the office administrator for Plaintiff law firm, violated the clause in a conversation with Adrienne Lopez, a social acquaintance of his. Lopez's deposition testimony may be summarized in pertinent part as follows: Lopez previously dated Aaron Hemmings. She knew Rhyne as a casual social acquaintance whom she sometimes saw at a bar or restaurant. Lopez recalled a conversation with Rhyne that took place at a Raleigh bar, "White Collar Crimes," between 9:00 p.m. and midnight on a night in February or March of 2006. Lopez had gone to the bar with friends. When she noticed that Rhyne was there, she approached him and they talked for about ten minutes. During the conversation, Rhyne commented that "Aaron had changed" and was "untrustworthy" and made another remark about which Lopez recalled only that it "suggested" that "Aaron did something wrong or committed some sort of crime when he left the firm."
Defendants assert that Plaintiffs are liable for Rhyne's late night comments at the White Collar Crimes bar, on the grounds that Rhyne was acting as an agent of Plaintiffs' law firm. However, it is axiomatic that a "principal is not liable when the agent is about his own business, or is acting beyond the scope and range of his employment. This is true irrespective of the intent of the agent." Snow v. Equitable Distribution Butts, 212 N.C. 120, 123, 193 S.E. 224, 227 (1937).
In support of their summary judgment motion, Plaintiffs submitted the affidavits of James Merritt and Joy Rhyne Webb, who are members of Plaintiff law firm. Regarding Rhyne's employment and the scope of his authority, each averred that:
Brad Rhyne is an employee of the Merritt Flebotte [law firm.] He is the firm's office administrator.... He is not authorized to speak on behalf of the law firm of Merritt Flebotte except to employees in his role as human resource manager and to vendors of supplies and services to the firm. Other than those situations he has no authority to speak on behalf of the firm. Nor does he have the authority to sign checks for the firm or incur financial obligations.... [T]o the extent that Brad Rhyne spoke with Ms. Lopez about Aaron Hemmings at a bar in Raleigh during evening hours, it was not within the course and scope of his employment to have such a conversation.
"At this point, in our opinion, movant's evidence that [Rhyne] was not acting as the agent of the [Plaintiff law firm] within the scope of his authority at the times complained of carried the burden placed upon it by Rule 56(c) by showing the absence of one of the essential elements of [Defendants'] claim." Zimmerman v. Hogg & Allen, 286 N.C. 24, 27-28, 209 S.E.2d 795, 803 (1974).
Defendants offer no evidence suggesting that Plaintiffs' description of Rhyne's job was inaccurate; nor do they contend that his conversation with Lopez might fall within his job description. Rather, Defendants assert that "Rhyne was the plaintiff's office administrator. As such, he was an agent of [Plaintiff law firm]. As their agent he was bound by the contractual non-disparagement clause whether he was sitting in his office or socializing at a bar." Defendants note that Rhyne had actual knowledge of the terms of the settlement agreement and was the brother of an attorney in Plaintiff law firm, but articulate no legal connection between these facts and the legal relationship of principal and agent. Defendants offered no evidence that the scope of Rhyne's employment included barroom gossip about members of the firm, and cite no appellate opinions suggesting that an employee is considered an "agent" of his employer even when he acts far outside the scope of his employment.
*86 We conclude that Defendants failed to produce any evidence raising an issue of fact as to whether Rhyne acted as Plaintiffs' agent during his conversation with Lopez.
Next, we consider Defendants' contention that Rhyne breached the contract by sending an email to members of Plaintiff law firm, in which he complained about Defendants' failure to reimburse Plaintiffs for some of the costs that had been advanced. The email was addressed to "Partners" and was received by three members of the firm; Joy Webb, Dan Flebotte, and Joey Wilson. It stated:
Dan, Please find the attached advanced costs reports for Kelly and Aaron. These reports show that on several cases such as [redacted] that they paid us $261.05 for reimbursement for advance costs when in fact they owed us $476.25. They need to go back and pay us for all the cases that they neglected to even pay a dime in advanced costs (to date they have only paid advanced costs in three out of twelve cases).
Even more frustrating, as I was talking to Jennie Phillips, I found out that Stephanie Minor and Tiffany Doster had been emailing Jennie to get the advanced costs of cases they settled. Even worse than that... several were cases that they have paid us for attorney fees already but have neglected to pay advanced costs ... so they knew what the advanced costs were and just didn't pay it.
Please don't forget that we need the trust ledgers for the cases that they have already paid us for and for the ones that they send us checks [for] in the future. If we could simply get the trust ledger, then we can see the disbursements that were made and verify the amount that we received. It's that simple.
The settlement agreement provides that the terms of the contract are to remain confidential, but that the parties "shall be allowed to discuss such provisions of this Agreement as is deemed necessary with those members, employees and financial/legal advisors on a need to know basis." As conceded by Defendants Stevens and Hemmings in their respective depositions, this clause permits "in-house" communication about the terms of the agreement.
In support of their summary judgment motion, Plaintiffs tendered a copy of the email showing that it was sent only to members of the firm, and the deposition of Rhyne, in which he testified that he sent the email only to the recipients shown on the copy of the email. Plaintiffs' evidence, which shows that the email was not a breach of the parties' agreement, made incumbent upon Defendants to respond with evidence raising an issue of fact about the email.
When Dan Flebotte, a member of Plaintiff law firm, received the email, he sent a copy to Defendants as part of their ongoing attempts to resolve issues arising from the settlement agreement. The email copy that Hemmings received did not include the names of the original recipients. On this basis, Defendants speculate that perhaps the email had been sent to others outside the firm. However, Defendants failed to produce any evidence that this had occurred, and offered no evidence to contradict Plaintiffs' sworn testimony that the email was only sent to members of the firm.
We conclude that the uncontradicted evidence was that this email was from an employee of Plaintiff law firm to members of the firm. Such communications are permitted under the settlement agreement. Defendants failed to demonstrate any genuine issue of material fact about this email. Accordingly, Plaintiffs were entitled to entry of summary judgment on this issue.
Defendants also argue that Plaintiffs breached contract by making a "fraudulent" demand for payment of expenses. This argument is without merit.
The settlement agreement required Defendants to reimburse Plaintiffs for costs advanced in certain cases. It provided that Defendants would submit a check for the dollar amount that they determined was owed, and if Plaintiffs deposited or cashed the check, they were deemed to have accepted Defendants' proposed amount of expenses. Defendants concede that Plaintiffs had no obligation under the settlement agreement to *87 provide accounting information to Defendants, calculate costs, or otherwise assist Defendants in determining the amount of costs owed. Plaintiffs' role was simply to accept or reject the proffered amount. Nonetheless, Defendants asked Plaintiffs for information about expenses. In response, Plaintiffs used QuickBooks software to generate a list of all checks written for the cases at issue and sent the resulting document to Defendants in a loose-leaf binder. It is this ledger which Defendants characterize as a "fraudulent demand" for money.
Defendants concede that the ledger does not include a demand for payment, that it was not accompanied by a letter demanding payment, and that Plaintiffs never expressed a "demand" for payment of the costs set out in the notebook. Thus, it is undisputed that Plaintiffs sent this listing unaccompanied by a letter, invoice, or any demand or request to be paid any particular amount.
We conclude that the evidence offered on summary judgment did not raise a genuine issue of material fact on Plaintiffs' alleged breaches of the settlement agreement. We specifically conclude that Defendants failed to produce evidence that (1) Rhyne's alleged remarks to Lopez were a breach of the settlement agreement; (2) Rhyne's email to members of the firm was a breach of the settlement agreement, or that; (3) the ledger records compiled by Plaintiffs constituted a "demand" or a "fraudulent demand" for money. As we have concluded that Defendants failed to present evidence that Plaintiffs had breached the settlement agreement, we do not reach the issues of whether the alleged breaches were material and substantial; or whether a material and substantial breach, if one had been shown, would have entitled Defendants to suspend payments due under the settlement agreement.
We conclude that the trial court did not err by entering summary judgment in favor of Plaintiffs on Defendants' assertions and defenses predicated on Plaintiffs' alleged breaches of the settlement agreement.
Counterclaims
Defendants brought counterclaims against Plaintiffs for slander per se, breach of contract, and for invasion of privacy and misappropriation of likeness. Defendants argue on appeal that the trial court erred by entering summary judgment for Plaintiffs on these claims. We disagree.
We conclude that Defendants' counterclaim against Plaintiffs for slander per se was barred by the statute of limitations.
Under N.C. Gen.Stat. § 1-54(3) (2007), the statute of limitations for a claim of slander or libel is one year. On appeal, Defendants assert that "sometime in February-March 2006, Brad Rhyne ... made derogatory statements in public to Adrianne Lopez, an acquaintance of Aaron Hemmings." In her deposition, Lopez testified that the allegedly slanderous remarks were part of a conversation with Rhyne in "February or March" of 2006. Defendants' counterclaim was not filed until 24 July 2007, which is several months after 31 March 2007.
Defendants argue that the cause of action did not accrue until Hemmings "discovered" the slanderous remarks. This argument has been rejected by our appellate courts. "`To escape the bar of the statute of limitations, an action for libel or slander must be commenced within one year from the time the action accrues, G.S. 1-54(3), and the action accrues at the date of the publication of the defamatory words, regardless of the fact that plaintiff may discover the identity of the author only at a later date.'" Gibson v. Mutual Life Ins. Co. of N.Y., 121 N.C.App. 284, 287, 465 S.E.2d 56, 58 (1996) (quoting Price v. J.C. Penney Co., 26 N.C.App. 249, 252, 216 S.E.2d 154, 156 (1975)).
Moreover, Defendants did not argue to the trial court that the statute of limitations should be tolled until Defendants learned of Rhyne's statements, and cannot raise this issue for the first time on appeal. N.C. R.App. P. 10(b)(1). We conclude that Defendants' claim for slander per se was barred by the statute of limitations. Therefore we do not reach the issue of whether Rhyne's remarks constituted slander per se.
Defendants next argue that the trial court erred by entering summary judgment, on the *88 grounds that there were genuine issues of material fact as to Defendants' counterclaim/third party claim for invasion of privacy and misappropriation of the Defendants' names and likenesses. We disagree.
"It is well known that the concept of a right of privacy recognizable in law appears to have originated in a law review article by Louis D. Brandeis, later a Justice of the Supreme Court of the United States, and his law partner, Samuel D. Warren. Warren & Brandeis, The Right to Privacy, 4 Harv. L.Rev. 193 (1890)." Hall v. Post, 323 N.C. 259, 262, 372 S.E.2d 711, 713 (1988). "The Supreme Court of North Carolina has recognized that `an invasion of privacy by the appropriation of a plaintiff's photographic likeness for the defendant's advantage as a part of an advertisement constitutes a tort giving rise to a claim for relief recognizable at law.'" Renwick v. News and Observer and Renwick v. Greensboro News, 310 N.C. 312, 322, 312 S.E.2d 405, 411 (1984) (citing Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55 (1938)).
Plaintiff law firm, Merritt Flebotte, maintains a website that displays information about the firm, including information about its attorneys. While Hemmings and Stevens worked at the firm, the website had links to brief biographical sketches of each. Defendants contend that Plaintiffs continued to display Defendants' photographs and biographical information on the Merritt Flebotte website after Defendants left the firm. On this basis, Defendants assert that Plaintiffs invaded their privacy by misappropriating their images and professional reputation. However, Plaintiffs supported their motion for summary judgment with uncontradicted evidence that:
[a]fter Hemmings and Stevens left the firm, Rhyne contacted the firm's technical support service, and asked them to delete Stevens and Hemmings from the firm's website.
On 13 September 2005 the technical support staff deleted Defendants' names and biographical information from the website, and removed all links on Plaintiffs' website that connected to information about Defendants.
After Defendants were deleted from the firm's website, it was no longer possible to navigate from the firm's homepage to pages about the Defendants. A visitor to the firm's website would not see Defendants names among the attorneys and none of the links on the website led to information or pages about Defendants.
In her 3 April 2006 email to Defendant Joy Webb, Stevens stated "I understand you took our names off the actual web page[.]" In her deposition testimony, Stevens conceded that it was not possible to access any web links or information about her or Hemmings after they were deleted from the website, and that she had no evidence to contradict Plaintiffs' evidence that this was done on 13 September 2005. When Hemmings was deposed, he also admitted that there was no way to navigate from Plaintiffs' website to any information about him or Stevens. Plaintiffs also offered testimony showing that when Hemmings and Stevens quit the firm, Plaintiffs wanted to remove all references to Defendants from Plaintiffs' website and took action to accomplish this removal, and that after Defendants left the firm, Plaintiffs did not use information about Defendants for any purpose.
Thus, Plaintiffs' uncontradicted evidence established that: (1) shortly after Defendants left the law firm, Plaintiffs directed their technical support service to delete Defendants from the Plaintiffs' website; (2) on 13 September 2005 the technical service deleted Defendants' names and informational pages from Plaintiffs' website; (3) after Defendants were deleted from the website, there was no information about Defendants on the website, and no way to navigate from Plaintiffs' website to information about Hemmings or Stevens, and; (4) after Defendants left Plaintiffs' law firm, Plaintiffs made no use of information about Defendants. This evidence, which showed that Defendants could not prove that Plaintiffs had misappropriated or used Defendants' photographs or biographical information after Defendants quit Plaintiffs' law firm, met Plaintiffs' initial burden of "proving that an essential element of the opposing party's claim is nonexistent, or... that the opposing party cannot produce *89 evidence to support an essential element of his claim[.]" Collingwood, 324 N.C. at 66, 376 S.E.2d at 427 (citations omitted). This shifted the burden to Defendants to produce evidence showing a genuine issue of material fact regarding their counterclaim.
Defendants did not produce evidence contradicting Plaintiffs' evidence that, when Plaintiffs instructed the technical support service to delete Defendants from the website, the consultant removed links referring to Defendants from the website. The files for these documents were stored as html code files on another computer, called a server. Plaintiffs did not own the server, and no evidence was presented to suggest that Plaintiffs intended to preserve a copy of the deleted files. But, because the actual html code was not removed from the server, it was theoretically possible to use Google or another search engine to retrieve and view the deleted pages. Defendants offered no evidence that any member of the public had accessed these files.
Defendants did not allege that Plaintiffs were negligent, but instead brought a claim for the intentional tort of invasion of privacy. Assuming, arguendo, that after Plaintiffs removed all information and links pertaining to Defendants from Plaintiffs' website, an internet search engine might return links to some of the deleted biographical pages, Defendants fail to articulate how this would constitute misappropriation of their image or biographies for any commercial purpose:
[a]ccording to [Defendant] he was able to access [documents deleted from Plaintiffs' website] by entering the extended URL address ... [Defendant] claims he was also able to access the [documents] through various website searches conducted through Google.... [Defendant] was able to unearth what is for all practical purposes a cyberspace artifact[.]... Indeed, it is undisputed that after the [13 September file deletions] the link[s] on [Plaintiffs'] website to [Defendants] ... [were] deleted[.] ... Beyond saying that his Google searches took him to [a] link that took him to [a copy of the deleted files,] ... [Defendant] explains nothing that would constitute clear and convincing evidence of contumacy by [Plaintiffs].
Autotech Techs. Ltd. P'ship v. Automation-direct.com, Inc., 2006 WL 1304949, 2006 U.S. Dist. LEXIS 29082 (N.D.Ill. May 10, 2006), aff'd 471 F.3d 745 (7th Cir.Ill.2006). We conclude that Defendants failed to produce evidence of Plaintiffs' invasion of their privacy by misappropriation of likeness. This assignment of error is overruled.
Finally, Defendants argue that the trial court erred by denying their motion to compel discovery, on the grounds that it was reasonably likely to lead to admissible evidence. We have reviewed this assertion and find it to be without merit. This assignment of error is overruled.
For the reasons discussed above, we conclude that the trial court did not err and that its order should be
Affirmed.
Judges McGEE and GEER concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261703/ | 286 Pa. Superior Ct. 31 (1981)
428 A.2d 223
COMMONWEALTH of Pennsylvania,
v.
John THOMPSON, Appellant.
Superior Court of Pennsylvania.
Submitted June 29, 1979.
Filed April 3, 1981.
*33 Arthur J. King, Assistant Public Defender, Norristown, for appellant.
William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Before SPAETH, STRANAHAN and SUGERMAN, JJ.[*]
STRANAHAN, Judge:
Appellant, John Thompson, was charged with unlawful possession of a small amount of marijuana and distribution of a small amount of marijuana but not for sale. 35 P.S. § 780-113(a)(16), (31). The charges arose from an incident which occurred on February 26, 1978 at the State Correctional Institution at Graterford, where appellant was then incarcerated.
On July 17, 1978, appellant was convicted, after a jury trial, of possession of a small amount of marijuana. On September 20, 1978, he was sentenced to 15 to 30 days incarceration, said sentence to commence at the expiration of any being served.
*34 There are two issues presented in this appeal. Appellant contends that "the verdict was against the evidence" and the prosecutor made improper remarks during closing argument. Each will be considered in turn.
SUFFICIENCY OF THE EVIDENCE
In Commonwealth v. Madison, 263 Pa.Super. 206, 209-210, 397 A.2d 818, 820 (1979), the court reiterated the standard employed in reviewing the sufficiency of the evidence. The court stated:
First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next, we give the Commonwealth the benefit of all reasonable inferences arising from that evidence, and finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. 263 Pa.Super. 206, 397 A.2d at 820. (citations omitted)
In narcotics possession cases, the Commonwealth may meet its burden by showing actual, constructive, or joint constructive possession of the contraband. Commonwealth v. Harris, 263 Pa.Super. 110, 397 A.2d 424 (1979). Proof of constructive or joint constructive possession of dangerous drugs requires evidence that the defendant, or in joint constructive possession cases, the defendant and others, had both power to control and the intent to exercise control over the narcotics. A necessary pre-requisite of intent to control is proof that he had knowledge of the existence and location of the narcotics. Commonwealth v. Griffin, 230 Pa.Super. 425, 326 A.2d 554 (1974). While a defendant's mere presence among a group of people, all of whom have equal access to the contraband is not alone, persuasive evidence of constructive possession, the requisite knowledge and intent may be inferred from examination of the totality of the circumstances surrounding the case. Commonwealth v. Cash, 240 Pa.Super. 123, 367 A.2d 726 (1976). Commonwealth v. Hannan, 229 Pa.Super. 540, 331 A.2d 503 (1974). Location of the contraband in an area usually accessible only *35 to the defendant may lead to the inference that he placed it there or knew of its presence if others did so. Commonwealth v. Ferguson, 231 Pa.Super. 327, 331 A.2d 856 (1974); Commonwealth v. Cash, supra.
Evaluation of these factors in the instant case leads us to the conclusion that the evidence was sufficient to sustain the verdict.
The evidence indicates that on February 26, 1978, Sergeant Robert Glace, a corrections officer at the State Correctional Institution at Graterford observed appellant, John Thompson, along with two other inmates, inside appellant's cell. John Thompson and one of the other inmates possessed small packets containing a brown grassy substance. Sergeant Glace noticed a larger clear bag containing a similar substance laying, in plain view, on appellant's bunk. The Sergeant secured the cell and sought assistance from other officers. The officers searched the cell and three inmates. They recovered several packets of marijuana from one of the inmates. A larger, clear bag also containing marijuana was found hidden, wedged into the cross-piece of a table near appellant's bunk. No marijuana was actually recovered from appellant at the time of the search.
Appellant contends that Commonwealth has failed to establish either actual or constructive possession of marijuana on his part. He maintains that the evidence shows only his presence at the scene.[1] Appellant's position is not consistent with the evidence and reasonable inferences drawn therefrom.
*36 Appellant and two other inmates were observed in his cell. Appellant and one of the others were in possession of packets containing a brown, grass substance. A larger, clear bag, containing a similar substance was in plain view on appellant's bunk. It may reasonably be inferred that this was the bag recovered from under the table. Thus, appellant clearly knew of the contraband's presence. During Sergeant Glace's absence, the larger bag had been moved from the bunk and concealed. The finder of fact could properly have inferred from the jail cell situs, that the drugs could not have been moved and concealed without appellant's knowledge and consent. The drugs were hidden in a location to which appellant, in the future, would have private access. The search of the three inmates revealed that appellant had no marijuana on his person. However, a second inmate possessed several packets of marijuana. If the larger bag belonged to the second inmate, the jury could reasonably infer that he would have retained it along with the other packets. Finally, appellant was initially observed handling the smaller packets buttressing the inference that he was not simply present at the location of the contraband.
In summary, the evidence and reasonable inference drawn therefrom, indicate that appellant knew of the existence of the marijuana, concealed it or was aware of its concealment in a place to which he would have future private access. The ability to exercise control and the intent to do so are thus present, establishing constructive or joint constructive possession of the marijuana. See Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975).
PROSECUTORIAL MISCONDUCT
The prosecutor, in his closing argument, referred to appellant's cell on the day in question as the "A-block marijuana store." Defense counsel objected to the remark and was overruled by the trial court. Appellant now claims that the word "store" intimates that sales were being conducted in his cell, when he was charged with possession and distribution of marijuana, but not for sale. He maintains that the trial court's failure to sustain the objection and deliver a *37 cautionary instruction to the jury mandates award of a new trial. It should be noted that defense counsel did not seek a cautionary instruction or move for a mistrial.
Assuming arguendo that the prosecutor's remarks were inappropriate, the award of a new trial is not warranted. In Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976) the Supreme Court noted that not every unwise or unwarranted remark made by counsel requires the award of a new trial. As the court further stated in Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973):
A new trial is required when the remark is prejudicial, that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.
The effect of such a remark must be evaluated in the context in which it occurred. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). Before a new trial is granted, the language must be such that its
(U)navoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence and render a true verdict. Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968), cited in Commonwealth v. Loar, 264 Pa.Super. 398 at 406, 399 A.2d 1110 at 1114 (1979).
In this case, although the prosecutor's remarks were ill-chosen, they were not so prejudicial as to require award of a new trial.
Additionally, it should be noted that counsel did not request additional relief when his objection was overruled. Appellant may not now complain of prejudice. Commonwealth v. Weakland, 267 Pa.Super. 66, 405 A.2d 1305 (1979) (panel). Commonwealth v. Brown, 467 Pa. 512, 359 A.2d 393 (1976).
Judgment of sentence affirmed.
SPAETH, J., concurred in the result.
NOTES
[*] President Judge John Q. Stranahan, of the Court of Common Pleas of Mercer County, Pennsylvania, and Judge Leonard Sugerman of the Court of Common Pleas of Chester County, Pennsylvania, are sitting by designation.
[1] Appellant also points to the testimony of another inmate who stated that he owned the marijuana and brought it to appellant's cell and secreted it without his knowledge. Appellant also so testified. This goes to the weight of the evidence rather than sufficiency. The jury chose to reject this testimony, as was its prerogative. Commonwealth v. Banahasky, 250 Pa.Super. 495, 378 A.2d 1257 (1977). Absent evidence that the jury's decision was manifestly erroneous, its determination will not be disturbed on appellate review. Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). There is no evidence present indicating the jury's decision was manifestly erroneous. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261711/ | 111 Cal.Rptr.2d 243 (2001)
91 Cal.App.4th 1023
CESAR et al., Petitioners,
v.
The SUPERIOR COURT of Orange County, Respondent;
Orange County Social Services Agency et al., Real Parties in Interest.
No. G028726.
Court of Appeal, Fourth District, Division Three.
August 23, 2001.
*245 Carl C. Holmes, Public Defender; James Steinberg, Assistant Public Defender, Marri Derby and Paul T. DeQuattro, Deputies Public Defender, for Petitioner, Cesar V.
Rich Pfeiffer, for Petitioner, Elvia E.
Sylvia L. Paoli, Tustin, for Petitioner, Samantha M.
Laurence M. Watson, County Counsel, and Deborah M. Gmeiner, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
Harold LaFlamme, Orange, and Craig E. Arthur, for the Minor Anthony V.
Lawrence A. Aufill, for the Minor Annissa V.
*244 OPINION
SILLS, Presiding Judge.
Cesar V., biological and presumed father of Anthony and presumed father of Annissa, and Cesar's mother, Elvia E., seek extraordinary relief from the order of the juvenile court refusing to place the children with Elvia. They claim the social worker failed to assess Elvia properly under the relative placement preference, and the juvenile court should have independently evaluated her as a placement resource rather than merely reviewing the decision of the Orange County Social Services Agency (SSA) for an abuse of discretion. We grant the petition.
I. Facts
In September 1999, Annissa and Anthony were declared dependents of the juvenile court. The children, then two and three years of age, had been detained after their mother was arrested. Cesar was unable to take care of the children because he was about to enter a court-ordered residential drug treatment program; Annissa's biological father was nowhere to be found. After dispositional orders were entered, the court granted Cesar de facto parent status as to Annissa because, although he was not her biological father, he was present at her birth, his name was on her birth certificate, and he had always cared for her and held her out as his own child. The children were placed together in a foster home.
At the six-month review hearing for Annissa, reunification services were terminated and a permanency hearing was set for July 2000. At Anthony's six-month review, however, further reunification services were offered to the parents. By July, Cesar was requesting reunification services for Annissa because he planned to adopt her after he reunified with Anthony. The court continued Annissa's permanency hearing, and Cesar filed a paternity petition, seeking presumed father status.
In August, the court found Cesar to be Annissa's presumed father.[1] It vacated Annissa's permanency hearing and set a 12 month review hearing for both children a week later. By then, however, Cesar had been arrested on charges of burglary, petty theft and probation violation. According to his counsel, "he was resigned to *246 losing his parental rights because of his being incarcerated. [¶] However, he was adamant that he wanted the children placed with his mother. . . ." He was transported in custody and stipulated to the termination of reunification services for both children.
The children's foster family was not interested in adoption, necessitating a change in placement; all parties stipulated to a placement evaluation of Elvia. The court set a permanency hearing for both children in January 2001 and ordered "SSA to evaluate paternal grandmother and paternal uncle for possible placement and any other suitable relative."
In the report filed on December 22, 2000, for the permanency hearing, the social worker reported the children had been placed in a prospective adoptive home on November 21, 2000. The social worker stated that "Elvia . . . was found not to be a suitable placement due to having a CAR [child abuse registry] history dated March 25, 1996 for allegations of physical abuse [against her son, Cesar] that were unsubstantiated due to an alternative plausible explanation. . . . The undersigned reviewed this Child Abuse Report with her supervisor and decided that this would not be a stable and safe environment for the children based on what was included in the report."[2] The social worker was also concerned that the grandmother had not been in contact with social services or the children during the dependency proceedings and that she had not followed up with paperwork necessary to have the children placed with her. The social worker met with Elvia on September 18, 2000, and "requested documentation from her boyfriend she lives with to do a background check as well as a household budget and proof of income to financially provide for the children[,] which was never given to the undersigned." Elvia told the social worker she was moving and would call to give social services her new telephone number so the new home could be evaluated. The social worker stated there was no word from Elvia until December 4. "The undersigned went ahead to place these children in a stable fos-adopt home in order to not further delay providing a possible permanent home for these children."
When the court convened for the permanency hearing on January 3, 2001, Cesar's counsel challenged SSA's denial of placement with Elvia. After discussions on and off the record, the parties stipulated to proceed "in a bifurcated fashion . . ." and resolve Cesar's challenge to placement before the permanency issues. Cesar's counsel was allowed to make an oral motion that SSA abused its discretion "in the reevaluation and assessment of the grandmother pursuant to the order made on September 7th." Over the next two weeks, the court heard five days of testimony and argument on the issue.
The social worker, Julie Fulkerson, testified Elvia called her after the September 7 court hearing; Fulkerson returned the call and set up the September 18 meeting at Elvia's home. They discussed background clearance information and household budget issues, and Fulkerson explained Elvia would receive forms that *247 needed to be filled out. The forms were sent to Elvia 10 days later by a social worker assistant. On September 26, Cesar's counsel called Fulkerson and asked her to follow up on the relative placement issue. Fulkerson called Elvia the next day reminding her to call with her new address and telephone number.
On September 29, Fulkerson received the CAR report from 1996. Although she felt the report might disqualify Elvia, she did not speak to Elvia, Cesar, or any other witnesses to the reported incidents. Fulkerson reviewed the report with her supervisor in "maybe early October," and they determined Elvia was unsuitable based on the report "as well as over time not hearing from her, not getting other information, documentation, background information from her boyfriend, household budget. There was no response from her at all." Fulkerson later testified the "primary reason" for not placing the children with Elvia was her lack of "relationship with the children throughout dependency proceedings." Elvia called Fulkerson on December 4, and Fulkerson returned the call on December 16, informing Elvia that the children had been placed elsewhere.
Fulkerson denied receiving calls from Cesar's counsel or an SSA court officer in October 2000. She acknowledged receiving a telephone message from Cesar's counsel on November 27, 2000, asking about progress on placing the children with Elvia, but instead of returning the call, Fulkerson called the deputy county counsel on the case and asked her "to direct information to [Cesar's counsel] with regard to the placement issues." Both Cesar's counsel and the SSA court officer called Fulkerson on December 4 asking about placement; both calls were referred to county counsel. Fulkerson testified she had talked to her supervisor about the case and "he told me it's standard protocol to go ahead and call your county counsel and direct it that way." The court sustained relevancy objections to Cesar's counsel's questions about the "protocol" of social workers refusing to speak directly to other parties' counsel.
The children's prospective adoptive family first saw pictures of the children on September 27, 2000, at a family night sponsored by SSA. The children met the family on November 15 and were placed with them a week later. Fulkerson testified the family had the resources necessary to meet the children's special education needs. "These foster parents had a lot of background information, with their own son needing the specific education needs." She also considered that "the foster mother is an at-home foster mother and she's readily available to meet the needs of the two children in the home." Cesar's counsel objected to Fulkerson's testimony as irrelevant. "This is not relating to the fos/adopt parents. It's regarding the appropriateness of analyzing the placement of the grandmother. This is not a who's better test." The court overruled the objection, stating that the relative placement preference statute did not apply after the termination of reunification services "[a]nd in addition, in this instance we are looking at abuse of discretion with respect to placement issues. And certainly one aspect of abuse of discretion is a consideration that was given to the needs of the child and the needs that these prospective adoptive parents could meet."
Elvia testified she had almost daily contact with the children before the dependency proceedings were initiated and she saw the children during the first part of the dependency when Cesar was allowed unmonitored visits. She did not ask for visits for herself because she thought she was not entitled and she thought Cesar would reunify with them. When Fulkerson *248 met with Elvia in September, "she asked me questions about my income, and how I would provide for the kids. And then she asked me about my boyfriend's income. And I told her I did not have that information at that time." Fulkerson told Elvia she would send some paperwork, but Elvia claimed it never arrived. She testified she made several calls to Fulkerson between September 18 and December 4, but the calls were not returned. She had planned to move into a house she was purchasing in November, but the escrow fell through. She ultimately moved in December into another house she is purchasing.
The juvenile court found SSA acted upon its order to assess Elvia as a placement resource. It determined that Welfare and Institutions Code section 361.3[3] applied and that the question before it was whether SSA abused its discretion under the statute. Given the information available to SSA, which the court found was "credible to the point it was not unreasonable for the Agency to act on it," balanced against Elvia's conduct, the court found SSA did not abuse its discretion in denying placement.
Cesar's counsel then filed a section 388 petition alleging new evidence showing Elvia's suitability as a placement for the children. The petition incorporated offers of proof from an independent clinical social worker and Elvia's former landlady which confirmed Elvia's good moral character and her parenting abilities, and provided an assessment of her new home. The court denied a hearing on the petition, finding it did not make a prima facie showing of how the relief sought would be in the best interests of the children.
II. Relative Placement Preference
Cesar and Elvia first contend SSA never completed the relative placement evaluation it was ordered to perform at the 12-month review hearing on September 7. They are joined in this contention by counsel for both Anthony and Annissa, who urged at oral argument before this court that Elvia's evaluation should be completed. Cesar and Elvia also contend even if the evaluation were complete, the juvenile court used the wrong standard in reviewing SSA's refusal to place the children with Elvia. They claim under section 361.3,[4]*249 the court should have used its independent judgment to evaluate the grandmother rather than merely reviewing SSA's actions for an abuse of discretion. SSA, on the other hand, contends section 361.3 was not applicable because reunification services had been terminated, but that in any event, the juvenile court correctly evaluated SSA's decisions under the abuse of discretion standard.
A. Section 361.3 applies before parental rights are terminated.
It is well-established that the relative placement preference found in section 361.3 does not apply after parental rights have been terminated and the child has been freed for adoption. In In re Sarah S. (1996) 43 Cal.App.4th 274, 50 Cal.Rptr.2d 503, the court compared that statute to section 366.26, subdivision (k), which provides that a relative caretaker or foster parent of a dependent child shall be given preference in applying to adopt the child. "[S]ection 361.3 assures interested relatives that, when a child is taken from her parents and placed outside the home pending the determination whether reunification is possible, the relative's application will be considered before a stranger's application. . . . When reunification fails, section 366.26, subdivision (k), assures a `relative caretaker' who has cared for the child that, when parental rights are terminated and the child is freed for adoption, his or her application will be considered before those submitted by other relatives and strangers." (Id. at p. 285, 50 Cal.Rptr.2d 503; see also In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493, 257 Cal.Rptr. 1.)
Here, the question is whether the relative placement preference applies when a new placement becomes necessary after reunification services are terminated but before parental rights are terminated and adoptive placement becomes an issue. Citing language from several cases, SSA urges the underlying purpose of the relative placement preference is to facilitate reunification, and that purpose no longer obtains once reunification services are terminated. "[T]he `object of dispositional hearings is to find a temporary caretaker who will meet the child's physical and psychological needs while cooperating in reunification efforts. A relative, who presumably has a broader interest in family unity, is more likely than a stranger to be supportive of the parent-child relationship and less likely to develop a conflicting emotional *250 bond with the child.' When a case moves from reunification to permanency planning, however, and a court determines that a child should be freed for adoption, we hold there is `no longer any reason to give relatives preferential consideration in placement.'" (In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1098, 275 Cal.Rptr. 323, quoting In re Baby Girl D., supra, 208 Cal.App.3d at p. 1493, 257 Cal.Rptr. 1; see also In re Robert L. (1993) 21 Cal.App.4th 1057, 24 Cal.Rptr.2d 654.)
These cases, however, were decided under a previous version of section 361.3. In 1993, the statute was amended to include subdivision (d), which specifically provides for the application of the relative placement preference if a child must be moved after disposition, "to relatives who have not been found to be unsuitable and who will fulfill the child's reunification or permanent plan requirements." (§ 361.3, subd. (d), emphasis added.) In 1997, the statute was again amended to add the ability of the relative to "[p]rovide legal permanence for the child if reunification fails" to the list of factors that must be considered when evaluating a relative for placement. (§ 361.3, subd. (a)(7)(H), emphasis added.) These additions to the statute indicate the Legislature did not intend to limit the purpose of the relative placement preference to reunification efforts.
B. SSA's evaluation of Elvia was not sufficient under section 361.3.
Section 361.3 gives "preferential consideration" to a relative request for placement, which means "that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) The assessment of the relative shall involve the consideration of eight factors set out in the statute, including "[t]he good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect"; and "[t]he safety of the relative's home. For purposes of this paragraph, the county social worker shall conduct a direct assessment of the safety of the relative's home. The information obtained as a result of this assessment shall be documented by the county social worker in the child's case record." (§ 361.3, subd. (a)(5) & (a)(8).) The statute reiterates: "The county social worker shall document these efforts [to assess the relative according to the statutory factors] in the social study prepared pursuant to Section 358.1." (§ 361.3, subd. (a)(8).)
The record shows the social worker did not make significant efforts to gather the required information before deciding Elvia was unsuitable and abandoning the assessment. Furthermore, the social worker began looking for another foster family before Elvia had even received SSA's forms. This approach is clearly not within the spirit of the statute. While we understand the urgency involved in securing a stable placement for dependent children, SSA is required to give a fair chance to a relative seeking placement. The correct application of the relative placement preference places the relative "at the head of the line when the court is determining which placement is in the child's best interests." (In re Sarah S., supra, 43 Cal.App.4th at p. 286, 50 Cal.Rptr.2d 503.)
C. Section 361.3 requires the juvenile court's independent judgment.
When section 361.3 applies to a relative placement request, the juvenile court must exercise its independent judgment rather than merely review SSA's *251 placement decision for an abuse of discretion. The statute itself directs both the "county social worker and court" to consider the propriety of relative placement. (§ 361.3, subd. (a).) The cases, too, discuss the relative placement preference in the context of an independent determination by the juvenile court. "[T]he statute expresse[s] a command that relatives be assessed and considered favorably, subject to the juvenile court's consideration of the suitability of the relative's home and the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 320, 27 Cal. Rptr.2d 595, 867 P.2d 706, emphasis omitted.)
The confusion apparently arose from the juvenile court's misapprehension that its role was controlled by Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 68 Cal.Rptr.2d 239. There, the court held the Legislature has given the social services agency the exclusive care, custody and control of minors referred for adoptive placement following the termination of parental rights. Thus, the juvenile court has no power to use its independent judgment to change the placement decision of the social services agency for a child that had been freed for adoption, but can review its decision only for an abuse of discretion. "Absent a showing that DSS's placement decision is patently absurd or unquestionably not in the minor's best interests, the juvenile court may not interfere and disapprove of the minor's placement, thereby requiring that the minor be relocated to another home." (Id. at p. 734, 68 Cal.Rptr.2d 239; see also Los Angeles County Department of Children and Family Services v. Superior Court (1998) 62 Cal.App.4th 1, 72 Cal.Rptr.2d 369.)
These cases concerned children who had been referred for adoptive placement after the termination of parental rights and were based squarely on statute. (See § 366.26, subd. (j); Fam.Code, § 8704.) The case before us, however, involves the relative roles of SSA and the juvenile court before parental rights are terminated. Notwithstanding the termination of reunification services here, parental rights are still intact and the children have not yet been referred to SSA for adoptive placement. Under these circumstances, the juvenile court has the power and the duty to make an independent placement decision under section 361.3.[5]
III. Standing
SSA contends neither Cesar nor Elvia has standing to appeal the relative placement preference issue. It argues Cesar is not legally aggrieved by the order denying placement because the only interest affected is Elvia's interest in preserving her relationship with the children. But it then claims Elvia cannot challenge that order because she is not a party.
Elvia, although not a party, has standing to seek appellate review of the denial of her request for placement under section 361.3. "[W]hether one has standing in a particular case generally revolves around the question whether that person has rights that may suffer some injury, actual or threatened." (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751, 45 Cal.Rptr.2d 333.) Elvia's separate interest in her relationship with Anthony, her grandson, is legally protected in *252 section 361.3, which confers upon a grandparent the right to preferential consideration for placement. "[A]ny person having an interest recognized by law in the subject matter of the judgment, which interest is injuriously affected by the judgment" is considered a "party aggrieved" for purposes of appellate standing. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1196, 23 Cal. Rptr.2d 878.)
We agree with SSA that Cesar has no standing to appeal the relative placement preference issue. Especially in light of his stipulation to terminate reunification services, we cannot see how the denial of placement with Elvia affects his interest in reunification with the children. It does not preclude Cesar from presenting any evidence about the children's best interests or their relationship with him. (See In re Vanessa Z. (1994) 23 Cal. App.4th 258, 261, 28 Cal.Rptr.2d 313; cf. In re Daniel D., supra, 24 Cal.App.4th at pp. 1833-1834, 30 Cal.Rptr.2d 245 [although challenge was untimely, mother apparently had standing to raise denial of relative placement preference before termination of reunification services where such placement arguably would have affected the mother's chances at reunification].) [6] "An appellant cannot urge errors which affect only another party who does not appeal." (Ibid.; In re Sarah M. (1991) 233 Cal.App.3d 1486, 1503, 285 Cal.Rptr. 374.) But Elvia has properly placed the issue before us, and Cesar has formally joined in her arguments; furthermore, by stipulation of the parties and with the juvenile court's acquiescence, Cesar extensively litigated the issue below. Under these circumstances, Cesar will be permitted to support Elvia's position with arguments of his own. (See In re Sarah S., supra, 43 Cal.App.4th at p. 282, fn. 10, 50 Cal.Rptr.2d 503.)
IV. Denial of Cesar's section 388 petition
Cesar and Elvia's final contention is that the juvenile court erroneously refused to grant a hearing on Cesar's petition under section 388 because there was no prima facie case of changed circumstances. They claim a showing of new evidence is enough to trigger the right to a hearing. The statute requires either new evidence or changed circumstances, but neither of these is sufficient to obtain a hearing without a prima facie showing that "the best interests of the child may be promoted by the proposed change of order . . . ."(§ 388.) Because we have determined that there must be a new hearing on the relative placement preference issue, however, the claim of error on the section 388 petition is moot.
V. Disposition
Let a writ of mandate issue directing the juvenile court to reverse its order finding no abuse of discretion by SSA and denying placement with Elvia and enter a new order directing SSA to complete its *253 assessment of Elvia as required by section 361.3. After the assessment is complete, the juvenile court shall hold a new hearing where it will exercise its independent judgment on the suitability of placing the children with Elvia. The stay of the permanency hearing, previously scheduled for March 13, 2001, will remain in force and effect until the relative placement issue is heard and resolved.[7]
RYLAARSDAM, J. and CROSBY, J.,[*] concur.
NOTES
[1] There is a pending appeal by SSA from this order.
[2] The social worker described the CAR report as follows: "[I]n the narrative summary it was disclosed that the minor, Cesar V. reported that he and his mother, Elvia E. constantly argue and that his mother physically abuse[d] him for years. Cesar further reported that for the past six months his mother has been hitting him with objects (i.e., phones, vases, etc.) and mother also tells him that `she wishes that she never had him and that he is not worth a piece of shit, etc' Cesar's mother admitted to ongoing verbal abuse and Cesar's father confirmed that there is a history of ongoing arguments between the mother and child and [the father] did not know who to believe regarding this incident."
[3] All statutory references are to the Welfare and Institutions Code unless otherwise specified.
[4] Section 361.3 provides in part: "(a) In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: [¶] (1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [¶] (4) Placement of siblings and half-siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002. [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for the child. [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents, [¶] (E) Facilitate court-ordered reunification efforts with the parents. [¶] (F) Facilitate visitation with the child's other relatives. [¶] (G) Facilitate implementation of all elements of the case plan. [¶] (H) Provide legal permanence for the child if reunification fails. [¶] However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for precluding preferential placement with a relative. [¶] (I) Arrange for appropriate and safe child care, as necessary.
. . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . .
"(c) For purposes of this section: [¶] (1) `Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated. . .
"(d) Subsequent to the [dispositional hearing], whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child's reunification or permanent plan requirements. In addition to the factors described in subdivision (a), the county social worker shall consider whether the relative has established and maintained a relationship with the child.
"(e) If the court does not place the child with a relative who has been considered for placement pursuant to this section, the court shall state for the record the reasons placement with that relative was denied."
[5] Cesar and Elvia argue the juvenile court should have allowed Cesar's counsel to question Fulkerson about SSA's protocol of directing questions from other parties to county counsel, claiming Cesar was attempting to show the social worker's bias. Although we are troubled about the implications of such a protocol, if it exists, our determination that a new hearing is necessary eliminates its relevance to this case.
[6] We note the cases cited in support of SSA's contention that Cesar lacks standing are factually inapt. In re Gary P. (1995) 40 Cal. App.4th at 875, 46 Cal.Rptr.2d 929 and In re Nachelle S. (1996) 41 Cal.App.4th 1557, 49 Cal.Rptr.2d 200 involved challenges to visitation orders made in conjunction with appeals from the termination of parental rights. (See also In re Jasmine J. (1996) 46 Cal.App.4th 1802, 54 Cal.Rptr.2d 560.) In In re Devin M. (1997) 58 Cal.App.4th 1538, 68 Cal.Rptr.2d 666, the mother challenged an order severing her child's relationship with his foster family. The child had been placed in long-term foster care, and although the mother's parental rights had not been terminated, the case had gone beyond the permanent planning stage. And In re Carissa G. (1999) 76 Cal.App.4th 731, 90 Cal.Rptr.2d 561 concerned the mother's standing to appeal the juvenile court's dismissal of a dependency petition for insufficient evidence of jurisdiction.
[7] Anthony's counsel tells us that in mid-April, the children were removed from their "fosadopt" home and returned to Orangewood. SSA is looking for another home and refuses to consider Elvia.
[*] Retired Associate Justice of the Court of Appeal, assigned by the Chief Justice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261722/ | 131 Cal.Rptr.2d 746 (2003)
107 Cal.App.4th 86
Mark BROCKET, et al., Plaintiffs and Respondents,
v.
Walter MOORE, Defendant and Appellant.
No. C038317.
Court of Appeal, Third District.
February 20, 2003.
*748 Farmer, Murphy, Smith & Alliston, George E. Murphy and Suzanne M. Nicholson, Sacramento, for Defendant and Appellant.
Gary W. Rhoades, Danielle Jones; Cibula and Cibula, Mark Cibula; Heather Cibula and John Gianola, Redding, for Plaintiffs and Respondents.
Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Herschel T. Elkins, Senior Assistant Attorney General, Ronald A. Reiter and Robyn C. Smith, Deputy Attorneys General, as Amicus Curiae on behalf of Plaintiffs and Respondents. *747
*749 MORRISON, J.
In adopting the Unlawful Detainer Assistants Act (Bus. & Prof.Code, § 6400 et seq.; UDAA) the Legislature found in part that "there currently exist numerous unscrupulous individuals . . . who purport to offer protection to tenants from eviction. The[y] . . . represent themselves as legitimate tenants' rights associations, legal consultants, professional legal assistants, paralegals, attorneys, or typing services . . . . The acts of these unscrupulous individuals . . . are particularly despicable in that they target low-income and non-English-speaking Californians as victims for their fraudulent practices." (Stats. 1993, ch. 1011, § 1, pp. 5721-5722.)
Under names such as "Legal Aid" and "Legal Aid Services" defendant Walter Moore operates a business which purports to offer typing services, particularly in eviction cases. Victims of Moore's deception (Mark Brockey, Dawn Gayler, Fred Pavloff and Frank Word, collectively Brockey) were eventually directed to Legal Services of Northern California's Redding office and obtained representation in the underlying cases and in this action seeking monetary and injunctive relief.
A jury found Moore practiced law in violation of the State Bar Act (Bus. & Prof.Code, § 6125, SBA), violated the UDAA and the Consumer Legal Remedies Act (Civ.Code, § 1750 et seq., CRA) and awarded damages of $150 to each of the four plaintiffs. The jury found Moore acted with oppression and malice, but declined to award punitive damages. The trial court issued a judgment on the jury verdicts and a permanent injunction under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq., UCL), detailed below. Moore timely filed a notice of appeal. We shall affirm.
BACKGROUND
"Under the often-enunciated rule, which is so often forgotten in the enthusiasm of advocacy, we look to the evidence accepted by the [fact-finder]." (Findleton v. Taylor (1962) 208 Cal.App.2d 651, 652, 25 Cal. Rptr. 439; see Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142, 134 P. 1157.)
Plaintiffs lived in a mobile home park in French Gulch, Shasta County, and in April 1998 they received unlawful detainer summonses they wanted to fight. None had the means to hire a lawyer and they tried to obtain free legal help.
The Judicial Council form summons for unlawful detainer actions states the recipient has five days to file a response and "If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book)."
The Judicial Council information sheet on waiver of court costs states "If you have any questions and cannot afford an attorney, you may wish to consult the legal aid office, legal services office, or lawyer referral service in your county (listed in the yellow pages under `Attorneys')."
Brockey (who lived with Gayler) looked in his local telephone directory under "Legal Aid" (as instructed on the Judicial Council form) and found a local number which he called. That number was forwarded to Moore's Modesto business. "Jay" told Brockey he had to wire money, which Gayler did because she was able to drive to town to arrange the wire and faxes. Brockey did not tell "Jay" which boxes to check, that he wanted each party to bear its own fees, or that he wanted to raise an affirmative defense by talking to the judge at the time of trial. Gayler thought they had contacted a law office "that offered services to low income people, [maybe] on a sliding scale of some sort." She called the number on the instructions to clarify them and Moore read the directions to her, rudely ignoring her *750 inquiries. When they filed the papers, the court clerk directed them to the local Legal Services of Northern California (LSNC) office.
Plaintiff Pavloff called "411" information to get the number for free "Legal Aid Services," which he had used before, and was given Moore's number by the operator. He was told to wire $85, which he did. He did not tell "Jay" how to fill out the forms. When he received them he was still unsure what to do so he went to his local LSNC office, and "that was the first time that I knew that this [meaning, Moore's business] wasn't the Legal Aid office that I thought it would be." Plaintiff Word testified to a similar series of events, thinking that "Legal Aid" was a government agency.
The form answers Moore provided to the plaintiffs each have the general denial box checked and add the following purported affirmative defense: "Will discuss with the judge at the time of trial." Each requests that "both [parties] pay their own legal fees." "Parties" is spelled "parteis" on each form.
The plaintiffs had to sign an "agreement & disclosure" form for the "Legal Aid Services Processing Center" in Modesto after paying money but before receiving their answers. The form states that "[t]his office is a professional document preparation and typing service only," that it is not a law office and "will not provide any legal advice." It suggests clients contact an attorney. The forms themselves show that they are sent after payment of money, as each reflects a zero account balance. For example, plaintiff Gayler's form states "Client's deposit is $85.00 with a balance due of $0 for a total of $85.00."
Claudia Nakamura, not a plaintiff herein, testified to a similar set of facts occurring in April 1999. She faced an eviction in Salinas. She thought she was calling the entity which had helped her for free in the past, "the people that help people that don't have the money to pay a regular lawyer." When she asked why she was being charged she was told it was just for the paperwork. She did not see the agreement until after she paid. She did not tell the company how to fill out the form she later received. She was told to attach her own handwritten statement to the answer, but the business did not offer to type it for her.
Donna Williams, not a plaintiff herein, also testified to a similar set of facts, except that she did not send money after her "local" telephone call, but instead went to the local LSNC office. She called "Legal Aid" "Because I've always known Legal Aid to be someone somebody that helps people that are low income."
Michele Logan, not a plaintiff herein, needed an annulment in December 1999, and called Moore's business, thinking it was "a low income agency" after finding the number under "Legal Aid" in the Modesto telephone directory. After she spent $200 and received the agreement form stating no legal advice was being provided, she felt she had no choice but to sign and return the agreement because it stated her documents were ready and "they cashed the check." When she tried to file the legal papers she was sent, the court clerk told her they were incomplete because she needed service paperwork. She called "Jeff to complain and he offered to arrange for service by publication for her and said he was an attorney. Logan never received the promised additional paperwork.
Velda Crotty, not a plaintiff herein, wanted help with a grandparent visitation issue and in June 1999 called a local "Legal Aid" number in her Redding telephone book. The man who answered listened to her problem and told her to complete some papers and send them back with $200, that it was a "formahty" and in about 30 days it would be finished "and I probably wouldn't even have to go to court." A couple of weeks later she received some forms and a *751 statement that no legal services were provided and she called to inquire. A woman angrily told her that the company was only a typing service.
Donna Pritchard, not a plaintiff herein, needed help with a bankruptcy and had used the real legal aid in the past. She found "Legal Aid" in the Redding telephone directory, called the local number and spoke with a woman who had answered the telephone "Legal Aid." After paying $125, she received incorrect papers and ultimately got in touch with LSNC.
Moore's former employee Michael Isaac testified he was told not to tell callers where the company was, to use aliases, and not to refer callers to the "real" legal aid. Isaac referred to Moore as "Jay" at trial. When Isaac worked there in the fall of 1998, the company received from 60 to 200 calls per day. Isaac was a poor typist and was hired to answer the telephone.
Part of the deposition of Moore's former employee Cynthia Pimental was read to the jury. She worked for Moore from about December 1995 to April 1997. Employees were supposed to use aliases. Callers inquiring about free legal aid were to be told "this is Legal Aid but we do charge[.]" They were to say they were "local" or "in the area" but that the "processing center" was in Modesto. Moore called his employees "players."
Stephen Goldberg, a lawyer for Northern California Lawyers for Civil Justice, a private nonprofit law firm, heard about Moore's business and contacted Moore's website in May 1998. He sent an e-mail claiming to be facing an eviction. The reply advised him to "call the Legal Aid Processing Center for document processing and assistance." Goldberg called the 800 number given and "Jay" explained that "his office was the local Legal Aid office mentioned on the [Judicial Council] summons."
Cathy Farrell, the Redding office manager for LSNC, made an audio tape of the voice mail system messages she accessed by calling the "local" number 241-6411 shortly before the trial. LSNC is a nonprofit corporation partly funded by the Legal Services Corporation and grants from government agencies, fund raisers and private charities. At one time the Redding office was called "Legal Aid Society of Shasta County" until it merged.
For about seven years Melinda Brown has been the executive director of People of Progress, a Shasta County organization providing emergency food, clothing and informational referrals to the impoverished. It serves about 8,000 people per year. She has frequently heard LSNC referred to as "Legal Aid," and LSNC is listed as "Legal Aid" on mailings which are sent monthly to food stamp recipients. In her opinion when low income people refer to "Legal Aid" they mean LSNC or free legal services in general.
After partly granting a request for judicial notice, discussed below, the trial court instructed the jury as follows: "The Judicial Council is the administrative body which [oversees] state courts in California. The Judicial Council issues forms that are used in legal proceedings. When a Judicial Council form refers to consulting an attorney and makes reference to Legal Aid or Legal Services, such as in a summons or the information sheet for waiver of court fees, . . . the reference is to a publicly funded nonprofit law corporation which provides free legal services to low income eligible clients."
Brockey called Moore as an adverse witness, and the jury (and trial court) did not believe Moore's version of events. We will not outline all of the discrepancies and vacillations.
Moore was the owner and manager of "Legal Aid" and "Legal Aid Services" and *752 "Premiere Marketing." He was not a lawyer or paralegal, but claimed to have an attorney (Ernest Elledge) "on staff," though he did not in 1998. If callers ask for legal advice, they are referred to Elledge. Moore's voice mail system directs callers to a 900 number for legal advice, but he claimed he received no income from this service.
Moore used the alias "Jeff Simmons" at Legal Aid. He uses the names "Legal Aid Services" and "Legal Aid" in marketing. He claimed he had a Modesto business license in the name of "Legal Aid Services dash Legal Aid," but later in trial admitted he only had a license in the name of "Premiere Marketing." . Still later in trial he claimed he received a business license for Legal Aid and Legal Aid Services the Friday in the middle of trial. He had about 30 listings of "local" numbers around California (e.g., Bakersfield, Los Angeles, Napa, Redding) which would forward calls to his Modesto business. He also used a toll free 800 number but claimed he used the local-forwarded numbers to save money (rather than to deceive callers into thinking they were calling a local legal aid office). He claimed his business typed what people directed on legal forms. Based on the information they provided, Moore would check the various boxes. The same is true for affirmative defenses, "Misspelled words and all. We type their statement, their defense." He does not check the boxes relating to UDAA compliance because he considers himself to be an exempt typing service. However, he did not advertise his business as a "typing service" in the yellow pages, but under "legal clinics." He claimed this was up to the telephone company.
Moore claimed his website (legalaidservices.com), which offered "legal documents," would refer to people to lawyers. He claimed it was under construction and not operating, but conceded people could use it, and when people have done so he referred them to lawyers. Although it advertised "Se habla espanol" (under a scales of justice symbol) he no longer had any Spanish-speaking employees. Even though the website had a 1997 copyright notice, he claimed it was just under development and had not been operating that long. When confronted in the second week of trial with hard copies of a different version of the website, he said he had been working on it for months, but put it online the previous Saturday. He claimed its function was to link people with attorneys in different specialties. The website did not have any attorneys "signed up at this point." However, it does list a 900 number.
Among the services offered on the website were "bankruptcy" services. Judge Whitney Rimel of the United States Bankruptcy Court for the Eastern District of California, Fresno Division, issued an order in 1999, compelling "Legal Aid Services" to disgorge money to certain debtors and pay sanctions, which Legal Aid Services failed to do. This order also sanctioned Moore for failing to refrain from using the word "`legal' or any similar term in any advertisements" pursuant to a federal statute regulating bankruptcy petition preparers. (See 11 U.S.C.A. § 110(f)(1).) Moore identified a bankruptcy court judgment he had agreed to recently before trial, finding he "`continued to prepare bankruptcy documents using the word "legal" in his business name and advertising'" after the prior order. He claimed LSNC "called the bankruptcy court and sic'd [sic, sicced?] them on us[.]" Moore admitted his voice on his company's voice mail system referred to doing bankruptcies, but he claimed the messages were old and the system was different now.
*753 Moore first claimed he had been using his business card since about 1994 or 1995, but when Brockey's counsel pointed out exhibit Q listed Moore's website, Moore claimed the card had been changed more recently.
Moore denied requiring employees to use aliases. In deposition he could not remember the names of any employees in 1998, claiming he had "a lot of volunteers."
Moore testified his business was not the "Legal Aid" or "Legal Services" office or "Lawyers Referral Service" referred to in Judicial Council forms.
Moore claimed when customers called, a price was agreed upon, the customers were faxed his written agreement, signed it, then the services were performed. He conceded the forms in evidence for the plaintiffs indicated payment had already been made, but denied that that meant money was collected before the agreement was sent or services provided. He did not save any documents relating to customers until "recently," when Elledge advised him to do so.
Moore testified he operated no other businesses, except that several years in the past he had used a business name of Certified Building Maintenance, or CBM. When recalled later in trial he testified he had no "position" in a company called Belmont Business Corporation, which operated out of the same Modesto building as his business. However, he later conceded he accepted rent checks on behalf of that company. He also testified "Beckwith is kind of a service company that I do research with," but later conceded paychecks for his Legal Aid employees currently have the name Beckwith on them.
The jury was instructed on the following deemed admissions: Moore was not registered or bonded under the UDAA, Moore employed no attorneys, and no attorney was responsible for his work. In deposition he testified he destroyed all records, but "we'll start [keeping them] when we leave here [meaning, after the deposition is over.]"
After the jury began deliberating, the parties put on limited additional evidence regarding injunctive relief. In argument, Brockey predicated liability primarily on the UDAA and SBA (which were also before the jury), but also mentioned the UCL and CRA; the court wanted to await the jury's verdicts to try to avoid inconsistent rulings. We observe that it is generally proper for a trial court to await a jury's verdict before ruling on overlapping issues being tried to the court. (See, e.g., Hughes v. Dunlap (1891) 91 Cal. 385, 388-390, 27 P. 642; Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1244, 280 Cal.Rptr. 568.)
Moore was recalled and admitted he was not registered under the UDAA and had not posted the required bond. He claimed he sold "Legal Aid" to attorney Elledge "Yesterday." He conceded it was an oral agreement "at this point" but was vague on details. He claimed Premiere Marketing "has no relationship to Legal Aid" and he was retaining that business. However, in his deposition Moore had stated he was the owner of "Legal Aid Services" and a marketing company called "Premiere Marketing" was the same thing.
After the verdicts were returned the trial court announced it would issue an injunction because "Moore has really preyed . . . on a vulnerable section of the population by leading people to believe he was Legal Aid, that he was Legal Services, the law service, the law office for the poor. He took advantage of that and had a scheme to continue that belief with people of limited income, dealing with a group of the population that was not likely to challenge his actions because of the relatively low dollar amount of the loss in each case, but dealing in a high volume with respect to the number of clients." The trial court *754 did not specify which statutory violation or violations supported the injunction.
Then the parties briefed the scope of the injunction. Brockey sought an injunction based on all of the violations of law proven at the jury trial and court trial. The opposition asserted that Brockey's failure to provide consumer survey evidence on the misleading nature, vel non, of the advertisements precluded injunctive relief. It also asserted Moore had transferred his business to Elledge, and that in any event the injunction was overbroad. Attached to the opposition was Elledge's declaration, claiming he had "acquired the typing service known as LEGAL AID SERVICE-LEGAL AID from Walter Moore of Modesto, CA." He then hedged and said "I am in the process of exercising complete management and control" of the business. In reply, Brockey emphasized that the trial evidence showed Moore's business practices were deceptive.
Moore does not faithfully recite the facts supporting the verdict and the injunction in his briefs. Almost none of the above facts are mentioned. Failure to set forth the material evidence on an issue waives a claim of insufficiency of the evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362.) Moreover, what facts are mentioned are skewed in Moore's favor. For example, Moore asserts that the agreement form disclosed that he offered typing services only and not legal services. However, Moore omits to state that this agreement form was sent to clients after they had paid the required fees for an unlawful detainer response, and that Moore and his employees, using aliases, routinely induced callers to send money for what was portrayed as legal assistance.
As another example, Moore asserts that the clients were provided with unlawful detainer answers, instructions to file the answers and the statement that further help or legal advice required consultation with an attorney. Moore omits mention of the evidence that he or his employees typed the answers without instructions from the clients, and the fact the responses chosen by them failed to raise any cognizable affirmative defenses. Thus, to the extent Moore implies by his brief that he faithfully provided the services set forth in the agreement (which, as stated above, did not truly reflect the bargain struck by the clients and Moore), the brief misleads.
We deem all of Moore's evidentiary arguments waived. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881, 92 Cal.Rptr. 162, 479 P.2d 362.)
DISCUSSION
I.
The judgment recites that the jury found Moore practiced law without a license, violated the UDAA and the CRA and acted with fraud, oppression or malice. The annexed injunction prohibits Moore in part from using the names "Legal Aid Services" or "Legal Aid" or "Legal Services" "because these three names signify a non-profit law office providing free legal services to low-income persons and families;" using the term "legal" except as a paralegal; and using "local" telephone numbers which forward to his Modesto business. The injunction also requires Moore to change his website, tell customers he is not an attorney, place newspaper advertisements regarding this lawsuit and so forth.
The first argument heading in Moore's opening brief asserts "The evidence was insufficient as a matter of law to support the judgment for violations of the [UCL]." He reiterates his claims in an argument about the denial of his directed verdict motion. Brockey replied by correctly pointing out there were several different *755 unlawful practices proven which could support the UCL claim. In the reply brief Moore claims Brockey's brief is mostly irrelevant because Moore only attacked the false advertising theory under Business and Professions Code section 17500. Moore misperceives the import of Brockey's briefing.
The UCL defines "unfair competition" as any "unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising. . . ." (Bus. & Prof.Code, § 17200.) It borrows standards of conduct from other statutes, and a plaintiff need only show the violation of any law. (See Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 519, 63 Cal.Rptr.2d 118.) Another statute specifically makes unlawful advertising services by "untrue or misleading" statements. (Bus. & Prof.Code, § 17500.) A violation of the false advertising law is a violation of the UCL. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 210, 197 Cal. Rptr. 783, 673 P.2d 660.)
Violation of the SBA, CRA and UDAA, as found by the jury, and not contested on appeal, demonstrates that Moore has engaged in a prolonged pattern of unfair business practices, which supports the injunction as issued under the UCL. Part of the instructions on the UDAA theory based liability on the making of "false or misleading statements" (see Bus. & Prof., § 6411, subd. (a)), and part of the instructions on the CRA theory based liability on misrepresentation of the origin, source, affiliation and quality of services advertised (Civ.Code, § 1770, subd. (a)). Thus, the jury's findings of liability on those theories overlapped with the trial court's finding as to false advertising, regarding the use of "Legal Aid" and similar deceptive phrases by Moore. Therefore, we decline to address Moore's claims regarding false advertising under the UCL because even if we agreed with him the judgment issuing the injunction would be proper based on the unchallenged verdicts on the UDAA and CRA theories. Wholly apart from advertising, the fact Moore was found by the jury to have given legal advice, rather than acting as a clerical typing service, could support an injunction preventing him from continuing to hold himself out as a source for "Legal Aid" or "Legal Services" and the like. (See People v. Landlords Professional Services (1989) 215 Cal. App.3d 1599, 1603-1604, 1608-1610, 264 Cal.Rptr. 548.)
In the reply brief Moore suggests that if he can eliminate the false advertising prong the case should be remanded for further proceedings, but he does not state what those proceedings would be. For example, he does not point to any portion of the injunction which depends wholly on the false advertising claim, and we will not make such arguments for him. (People v. Gidney (1937) 10 Cal.2d 138, 142-143, 73 P.2d 1186.)
Moreover, Moore's attack on the misleading advertising prong is based on an unfair summary of the evidence, as stated above. Brockey had to show Moore's business practice is such "that `members of the public are likely to be deceived.'" (Bank of the West v. Superior Court. (1992) 2 Cal.4th 1254, 1266-1267, 10 Cal.Rptr.2d 538, 833 P.2d 545 (Bank of the West).) "By their breadth the statutes 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.) Tellingly, a *756 plaintiff need not prove that anybody was misled (id. at p. 332, 74 Cal.Rptr.2d 55), although here people were misled.
Moore contends Brockey had to prove "via extrinsic evidence" that his mis-statements would likely deceive a reasonable person (not merely a vulnerable person) and that what he terms "anecdotal" evidence, that is, testimony by people that they were in fact misled, is insufficient. He fails to cite a single California case requiring use of survey evidence in unfair business practices cases, only lower federal court cases which are neither binding nor persuasive, to the extent they hold that direct evidence that many people were misled can never show that a reasonable consumer would likely be misled. (See, e.g., Haskell v. Time, Inc. (E.D.Cal.1997) 965 F.Supp. 1398, 1407 ["plaintiff must demonstrate by extrinsic evidence, such as consumer survey evidence, that the challenged statements tend to mislead consumers"].) Generally, those cases involve a very few persons claiming to be misled and do not hold that "anecdotal" evidence can never suffice. (See, e.g., Churchill Village LLC v. General Electric Co. (N.D.Cal. 2000) 169 F.Supp.2d 1119, 1131 [two of 300 recipients].) The Attorney General points out and Moore concedes that these cases have imported into the California UCL standards of proof derived from federal Lanham Act cases, where misleading, rather than false, statements must be shown to have deceived a "significant portion" of the recipients. (See, e.g., William H. Morris Co. v. Group W. Inc. (9th Cir.1995) 66 F.3d 255, relied on in part by Haskell and Churchill.) We are not persuaded that these cases accurately reflect California law.
Even Moore acknowledges that while evidence of actual confusion "may be used as evidence of the likelihood of confusion to the general public, a few isolated examples are generally insufficient" and the plaintiff in such cases must show "`a likelihood of confounding an appreciable number of reasonably prudent purchasers exercising ordinary care.'" But here Brockey proved more than "isolated examples" of people who were actually misled. In this case a number of consumers were actually deceived, and from the evidence about the enormity of Moore's business and the fact his employees were directed to lie to callers, the trier of fact could conclude Moore's activities were likely to mislead consumers. Further, Brockey had expert testimony that the impoverished in Shasta County equate "Legal Aid" with LSNC or a similar nonprofit law firm. From that fact, and the evidence of actual deception, the trier of fact could conclude deception was likely.
Moreover, we agree with the Attorney General that "the primary evidence in a false advertising case is the advertising itself." The United States Supreme Court has rejected a claim that survey evidence was required in the analogous context of the Federal Trade Commission's regulation of deceptive advertising. (Federal Trade Com. v. Colgate-Palmolive Co. (1965) 380 U.S. 374, 391-392 [, 85 S.Ct. 1035, 1046, 13 L.Ed.2d 904, 918] ["when the Commission finds deception it is also authorized, within the bounds of reason, to infer that the deception will constitute a material factor in a purchaser's decision to buy"]; see Resort Car Rental System, Inc. v. Federal Trade Com. (9th Cir.1975) 518 F.2d 962, 964 [no need to consider objections to consumer testimony because it "merely supported the inferences which can logically be drawn by scrutinizing the advertising alone"].)
In trade name disputes and cases construing California's prior unfair competition law (former Civil Code section 3369), the courts acknowledged that the "likelihood of confusion" between names was a factual question, but in some cases "the *757 comparison of the two names themselves may be adequate to establish the likelihood of confusion." (Ball v. American Trial Lawyers Assn. (1971) 14 Cal.App.3d 289, 308-309, 92 Cal.Rptr. 228; see Hair v. McGuire (1961) 188 Cal.App.2d 348, 353, 10 Cal.Rptr. 414 [if "a person of ordinary intelligence could reasonably be deceived or confused, that is all that is required"]; Sun-Maid Raisin Growers v. Mosesian (1927) 84 Cal.App. 485, 497, 258 P. 630.) In fraudulent misrepresentation cases, ignorant people are not denied recovery so long as they have acted reasonably within the limits of their knowledge; indeed, cheats search for easy marks. (See Seeger v. Odell (1941) 18 Cal.2d 409, 414-415, 115 P.2d 977.) There is no indication the current version of the UCL was meant to depart from these rules.
In our view, the way Moore words his telephone book listings is calculated to mislead and is likely to mislead consumers, as the jury (ruling on the SBA, UDAA and CRA claims) and the trial court (ruling on false advertising claims) found.
Moreover, where, as here, a statement is targeted at unsophisticated members of the public, it is appropriate to adjust the "reasonable consumer" standard accordingly. Moore targeted low income people in need of "legal services," a population that generally is less sophisticated than, say, readers of the San Francisco Daily Journal, a paper targeting lawyers and judges which also provides "legal services" advertisements. Moore relies on federal cases such as Freeman v. Time, Inc. (9th Cir.1995) 68 F.3d 285, but that decision undermines his theory. Freeman involved a plaintiff who claimed he was misled by a typical sweepstakes notification into thinking he was a winner, although the notification stated an entrant had to return a "winning" entry. The Ninth Circuit adopted a rule that the plaintiff in such cases cannot rely on a showing that only some members of the public are likely to be deceived but must show a reasonable consumer must be deceived. But Freeman added a significant qualification: "`[U]nless particularly gullible consumers are targeted, a reasonable person may expect others to behave reasonably as well.' [Citations.] In this case, the mailings were sent to millions of persons and there is no allegation that a particularly vulnerable group was targeted." (68 F.3d at p. 289.) The contrary is shown in this case.
At bottom the evidence shows Moore wanted to deceive the public and did deceive them. It is no great stretch indeed, no stretch at all to conclude he was likely to deceive them.
II. Judicial. Notice of "Legal Aid".
Moore contends the trial court erroneously took judicial notice of the meaning of the term "Legal Aid," claiming the trial court took it to mean "synonymous with free legal services to low income persons." Brockey did ask the trial court to judicially notice this broad meaning of "Legal Aid," but the trial court denied that motion. The trial court substantially narrowed the meaning it was willing to accept via judicial notice, and instructed the jury that the use of "Legal Aid or Legal Services," in Judicial Council forms refers "to a publicly funded nonprofit law corporation which provides free legal services to low income eligible clients."
Moore contends the trial court abused its discretion because the meaning of "Legal Aid" was in dispute. Moore proffers three points of dispute about the meaning of "Legal Aid," but none of these points, nor all three together, would help him in any way. The disputes are immaterial and therefore the trial court did not abuse its discretion.
First, Moore points out that there was testimony that LSNC was a private non-profit *758 corporation. But Moore's attorney elicited from Goldberg the fact that LSNC is "public[ly] funded." Second, Moore points to testimony that some people confuse LSNC (which uses the term "Legal Services") and "Legal Aid." Third, Moore objects that only one of the nonparty witnesses testified that she thought "Legal Aid" referred to free services. Moore fails to explain how any or all of these disputes were material in the context of this case.
In his prejudice argument, Moore mis-states the issue: "The trial court instructed the jury that it 'must accept' and consider as evidence the judicially noticed fact that `Legal Aid' means free legal services provided by a public non-profit corporation. [Citation.] In so doing, the trial court effectively denied Moore his right to a jury trial on a disputed, triable issue of fact."
The trial court did not instruct the jury about the meaning of "Legal Aid" for all purposes, only its meaning as used on Judicial Council forms. Moore testified that he was not the "Legal Aid" referred to by the forms and therefore we fail to see how the instruction caused prejudice. So far as the meaning of the forms was concerned, the matter was not in dispute.
We note that dictionaries and courts define "legal aid" to mean legal services for low income people. (Black's Law Diet. (5th ed.1979) p. 803, col. b; Webster's Third New Internat. Diet. (1966) p. 1290, col. b; In re Brokenbrough (Bankr. S.D.Ohio 1996) 197 B.R. 839 ["Legal Aid Services" confused people into thinking the for-profit business was the free local Legal Aid Society]; American Legal Aid, Inc. v. Legal Aid Services, Inc. (Wyo.1972) 503 P.2d 1201, 1202.) And we find telling the fact that Attorney Elledge declared that he planned to make a change in the business: "I have elected to eliminate the use of the name LEGAL AID, as that term is used in the Judicial Council forms and is generally associated with free legal assistance underwritten by sponsors of nonprofit law corporations and professional offices." We agree.
III. Breadth of the Injunction.
The UCL in part provides in part that where a person "has engaged" in unfair competition, "The court may make such orders . . . necessary to prevent the use . . . of any practice which constitutes unfair competition . . . or 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." (Bus. & Prof. Code, § 17203.) We have previously recognized that this provision allows trial courts great latitude in protecting the public and making the victims of unfair competition whole. (Hewlett v. Squaw Valley Ski Corp., supra, 54 Cal.App.4th at pp. 539-540, 63 Cal.Rptr.2d 118; see Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 180, 96 Cal.Rptr.2d 518, 999 P.2d 706; Bank of the West, supra, 2 Cal.4th at p. 1267, 10 Cal.Rptr.2d 538, 833 P.2d 545.)
Moore attacks the injunction on several meritless grounds. He acknowledges the abuse of discretion standard (California Service Station etc. Assn. v. Union Oil Co. (1991) 232 Cal.App.3d 44, 56-57, 283 Cal.Rptr. 279), but simply disagrees with the trial court's findings. We agree with Moore that an injunction must seek to prevent harm, not to punish the wrongdoer.
First, Moore states that he presented evidence he had transferred his business to a licensed attorney. However, the trial court was free to disbelieve that evidence. Moore's evidence on this point was that during trial in this matter he sold his interest to attorney Elledge, but this was pursuant to an uncompleted oral *759 agreement "at this point." The trial court stated this transaction "could be a sham" or "dodge." Even Elledge's declaration submitted in opposition to the injunction states he is "in the process" of acquiring the business. Elledge had some sort of preexisting employment relationship with Moore. The trial court was not obliged to accept that the transaction was genuine. Moreover, a trial court may issue an injunction where a person has committed a past unlawful practice. (See Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 570, 71 Cal.Rptr.2d 731, 950 P.2d 1086.)
The rest of the many claims raised suggest alternatives the trial court might have found to be effective, but this does not show the trial court abused its discretion. Moore also asserts, without significant amplification, that various provisions are "punitive." We will briefly address each of the points raised.
Moore suggests the trial court could have allowed him to use "Legal Aid" and similar names, provided he included a disclaimer when prospective clients called, to the effect that he was not the "Legal Aid." Such a provision would authorize the use of misleading statements in violation of the law, as the Attorney General points out. It would also be difficult, if not impossible, to monitor. How this would protect the public is not explained in Moore's brief.
In related claims Moore asserts the injunction is overbroad because it bars him from using "Legal Services" and "Legal Aid Services," and he claims these terms were not litigated. In fact, "Legal Services" appears on one of the Judicial Council forms which Moore testified did not refer to his business. "Legal Aid Services" also appears in the trial record, for example, in trial exhibit M, Brockey's demand letter (required by the CRA, see Civ.Code, § 1782) to Moore. In our view, the trial court could conclude "Legal Aid Services" carried the same likelihood of confusion as "Legal Aid" or "Legal Services." Moore similarly complaints that the prohibition on any use of the term "legal" and symbols of scales of justice are "punitive." He did not object to the prohibition on the use of scales in the trial court. Given the evidence of Moore's repeated and intentional efforts to mislead people into thinking he was a lawyer, the trial court could reasonably conclude these provisions were necessary to prevent further acts of consumer fraud. The record also shows that Judge Rimel fined Moore for using the term "legal" in violation of federal law and the record shows Moore continued to violate her orders.
Moore contends the provision requiring him to provide copies of the injunctions to any employees of any of his businesses is punitive because he might choose to open up a business which could not possibly be confused with legal services, e.g., a dry cleaning business. However, there was testimony Moore operated under various names and his evasions on this point no doubt convinced the trial court that this provision was necessary to deter him from opening a business akin to those he had been operating. If, indeed, Moore wishes to open a dry cleaning business, it is difficult to see how he can be harmed by giving his employees copies of this injunction. It would only deter employees of a business that might be covered by the injunction.
Moore complains that he must make compliance reports to Brockey's counsel. He offers no other monitor or method of ensuring compliance and the Attorney General cites other cases in which defendants were ordered to report on compliance. The trial court could conclude Moore was otherwise unlikely to comply with the injunction given his violations of state laws and Judge Rimel's orders.
*760 Moore complains about the requirement that he advertise the injunction in various newspapers (in the communities where he operated the call-forwarded numbers in the yellow pages), and report to Brockey's counsel the names of all persons who responded to the advertisements. Again, this is not a punitive condition, as Moore baldly asserts; it is a necessary mechanism to achieve full disgorgement of Moore's wrongful profits. (See Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 138 & fn. 18, 96 Cal.Rptr.2d 485, 999 P.2d 718.) Isaac testified the company received 60-200 calls per day and the trial court thought there might be "thousands" of victims to be located. Moore offers no alternative effective method. Because Moore destroyed business records, there does not seem to be any other practical way to find out the names of his other victims.
Moore does offer a narrower claim: Because the injunction requires his compliance advertisements to tell interested persons to contact LSNC, he complains the requirement that he also notify LSNC of respondents to the advertisement is duplicative. However, the trial court could conclude some defrauded consumers might contact Moore directly instead of LSNC, and the requirement that he report all names responding ensures LSNC will be able to contact such persons as necessary. Moore's claim that quarter-page advertisements are unduly large and expensive does not show an abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., DAVIS, J. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261726/ | 133 Cal.Rptr.2d 182 (2003)
107 Cal.App.4th 1030
SIERRA CLUB et al., Plaintiffs and Appellants,
v.
CALIFORNIA COASTAL COMMISSION, Defendant and Respondent;
Catellus Residential Group, Real Party in Interest and Respondent.
No. A100194.
Court of Appeal, First District, Division Five.
April 11, 2003.
As Modified on Denial of Rehearing May 9, 2003.
Review Granted July 23, 2003.
*185 Law Offices of Frank P. Angel, Frank P. Angel, Los Angeles, Curtis M. Horton, for appellants.
*186 Bill Lockyer, Attorney General, J. Matthew Patterson, Senior Assistant Attorney General, Jamee Jordan Patterson, Supervising Deputy Attorney General, Hayley Peterson, Deputy Attorney General, for respondent California Coastal Commission.
Latham & Watkins, Robert D. Crockett, Kathryn M. Davis, James R. Repking, Los Angeles, for real party in interest and respondent Catellus Residential Group.
Certified for Partial Publication.[*].
GEMELLO, J.
May the California Coastal Commission (Commission) consider the environmental impacts of development outside the coastal zone when approving a project that straddles the coastal zone boundary? We hold that it may not, and that the Commission acted correctly when it confined its analysis of a project to the environmental impacts of the portion lying inside the coastal zone.
At issue in this case is a 114-home housing project proposed to be built on a Los Angeles bluff near the Pacific Ocean. Because a portion of the project lies inside the coastal zone and under the jurisdiction of the Commission, the developer was required to seek a Commission coastal development permit. The Commission rejected an earlier version of the project, but approved the project after the developer made modifications to alleviate many of the Commission's concerns.
The Sierra Club disagreed with the Commission's decision and sought review by a petition for writ of mandate. The trial court denied relief. Having carefully reviewed the record, we agree with the trial court. The Commission's decision is supported by substantial evidence and was arrived at in compliance with both the California Coastal Act and California Environmental Quality Act. We further hold that the Commission is barred by statute from considering the impacts of those portions of a project outside the coastal zone; that the Commission can consider the condition of a wildlife habitat in determining whether it is an Environmentally Sensitive Habitat Area (ESHA); and that the promise of a developer to create an ESHA in the future does not subject that area to ESHA protections beforehand. We affirm.
Factual and Procedural Background
Respondent and real party in interest Catellus Residential Group (Catellus) owns a 44.69-acre parcel of property located in the Westchester-Playa del Rey area of Los Angeles. The property is located about a mile from the ocean. It consists of a broad, gently sloping bluff top that leads to moderate to steep slopes, which descend on the northerly and westerly boundaries to the property line. The bluff face, but not the bluff top, falls in the coastal zone and is therefore subject to the Commission's jurisdiction. (See Pub. Resources Code, § 30103.) The site is adjacent to Lincoln Boulevard (State Highway 1) on the east and an existing residential neighborhood to the south.
Another developer sought to develop the parcel in the early 1990's. In 1993, the City of Los Angeles (City) prepared an environmental impact report (EIR) in connection with that project, but the developer abandoned the project before obtaining any permits.
Catellus thereafter acquired the property. Initially, Catellus proposed a development with 119 single-family homes (the Project). Because a portion of the Project was located in the coastal zone, Catellus was obliged to obtain permits from both the City and the Commission. (See Pub. Resources Code, §§ 30600, subd. (a), 30601; Cal.Code Regs., tit. 14, § 13307.) Catellus applied for the required permits. *187 The City prepared a second EIR and issued a coastal development permit.
The Sierra Club appealed the City's decision to issue a coastal development permit to the Commission, which has jurisdiction to review such decisions. (Pub. Resources Code, § 30625, subd. (a).) In August 1999, the Commission reviewed the applications for City and Commission coastal development permits and rejected them. It cited concerns about excessive grading, landform alteration, and the impact on coastal views. One source of concern was Catellus's plan to fill Hastings Canyon, on the westernmost coastal edge of the property.
Catellus revised the Project. It reduced the number of homes to 114. It removed or buried retaining walls along the bluff face. It eliminated coastal zone filling of Hastings Canyon. It expanded the amount of revegetation of coastal scrub. It agreed to purchase 15 lots along the bluff face, adjacent to the property, and retire its development rights, thus limiting future development along the bluff face. The revised Project retained key aspects of the original Project, including construction of a public-access view park along the bluff rim and confinement of residential development to the bluff top, outside the coastal zone. Catellus then applied for new permits.
The City prepared a supplement to its second EIR and again concluded that the Project would not have significant environmental impacts. It issued a new coastal development permit on January 28, 2000. Once again, Sierra Club appealed to the Commission.
The Commission staff prepared a report addressing the appeal on the City permit and Catellus's renewed application for a Commission permit. It recommended approval of both permits, with one major condition: that the Project be modified to eliminate "Street A," a proposed road leading up the bluff face that would connect the Project to Lincoln Boulevard. Catellus had designed the Project so that 29 of the 114 homeowners could reach their property through existing city streets. However, the remaining 85 homeowners would travel to their property via Street A. Street A would be approximately 50 to 60 feet wide and 480 feet long. It would extend from Lincoln Boulevard, up through the bluff face, to the bluff top, where it would connect to a series of culde-sacs. To construct the road, Catellus proposed to grade approximately 54,000 cubic yards of soil. About half of Street A would be located in the coastal zone.
The Commission held a consolidated public hearing on the two permits on August 7, 2000. After hearing evidence in favor of and against the Project, the Commission voted seven to four to amend the staff Project description to eliminate the "No Street A" condition proposed by the Commission staff. It then voted nine to two to approve both permits for the Project. Because the commissioners rejected the staff recommendation, and implicitly, the staff report embodying that recommendation, the commissioners did not adopt written findings to explain their decision at the August 7 hearing. Instead, the staff prepared revised findings reflecting the Commission's actions. The Commission considered the proposed revised findings and approved them on December 11, 2000.
On October 6, 2000, appellants Sierra Club, Spirit of the Sage Council, and Ballona Ecosystem Education Project (collectively Sierra Club) filed a petition for writ of administrative mandate in San Francisco Superior Court challenging the Commission's decision to grant the permits and allow development. The petition named as *188 defendants the Coastal Commission, Catellus, and the City.[1]
The Sierra Club applied for a preliminary injunction, asking the court to enjoin Catellus from conducting any grading on the property pending resolution of its suit. The trial court denied the request. On appeal, we reversed. In an unpublished opinion, we concluded that the trial court abused its discretion in denying a preliminary injunction because the absence of written findings in the then existing trial court record made it impossible to evaluate the legality of the Commission's actions.
After the case returned to the trial court, the parties proceeded to a hearing on the merits. With the Commission's December 11, 2000, written findings now part of the record, the trial court denied the Sierra Club's petition on all grounds. It entered its statement of decision and judgment on July 23, 2002.
The Sierra Club timely appealed. We subsequently granted a writ of supersedeas staying the trial court's judgment until we had had an opportunity to rule on the merits of the appeal.
Discussion
I. Standard of Review
The Sierra Club challenges the Commission's actions through a petition for writ of mandate under Code of Civil Procedure section 1094.5. (See Pub. Resources Code, § 30801 [authorizing any "aggrieved person" to seek judicial review of Commission decisions].) Code of Civil Procedure section 1094.5 imposes a deferential standard of review; unless the Commission has exceeded its jurisdiction or denied a fair hearing, the trial court may only reverse if it finds a prejudicial abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (b).) "Abuse of discretion is established if the [Coastal Commission did not] proceed[ ] in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).) "Where it is claimed that the findings are not supported by the evidence ..., abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (Code Civ. Proc., § 1094.5, subd. (c).)
"The substantial evidence rule requires the trial court to start with the presumption that the record contains evidence to sustain every finding of fact. [Citation.] The burden is upon the appellant to show there is no substantial evidence whatsoever to support the findings. [Citation.] The trier of fact ... is the sole arbiter of all conflicts in the evidence, conflicting interpretations thereof, and conflicting inferences which reasonably may be drawn therefrom; it is the sole judge of the credibility of the witnesses [and] may disbelieve them even though they are uncontradicted if there is any rational ground for doing so...." (Pescosolido v. Smith (1983) 142 Cal.App.3d 964, 970-971, 191 Cal.Rptr. 415.) The court must consider all relevant evidence, including evidence that detracts from the decision. (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, West's Ann.Cal.Evid.Code § 610, 15 Cal.Rptr.2d 779 (Pygmy Forest).) Ultimately, however, "`[i]t is for the agency to weigh the preponderance of *189 conflicting evidence [citation]. Courts may reverse an agency's decision only if, based on the evidence before the agency, a reasonable person could not reach the conclusion reached by the agency.'" (Ibid., italics omitted.)
Our function on appeal is the same as that of the trial court. We review the administrative decision to determine whether it is supported by substantial evidence. (City of San Diego v. California Coastal Com. (1981) 119 Cal.App.3d 228, 232, 174 Cal.Rptr. 5; Lewin v. St. Joseph Hospital of Orange (1978) 82 Cal.App.3d 368, 386, 146 Cal.Rptr. 892.) As to questions of law, we perform "essentially the same function" in reviewing administrative mandate proceedings as the trial court, and "the conclusions [of law] of the trial court are not conclusive on appeal." (Lewin v. St. Joseph Hospital of Orange, at p. 387,146 Cal.Rptr. 892.)
II. The Commission's Decision Complies with the Coastal Act
A. The Coastal Act
The California Coastal Act of 1976, Public Resources Code sections 30000-30950[2] (Coastal Act or Act), "was enacted by the Legislature as a comprehensive scheme to govern land use planning for the entire coastal zone of California. The Legislature found that `the California coastal zone is a distinct and valuable natural resource of vital and enduring interest to all the people'; that `the permanent protection of the state's natural and scenic resources is a paramount concern'; that `it is necessary to protect the ecological balance of the coastal zone' and that `existing developed uses, and future developments that are carefully planned and developed consistent with the policies of this division, are essential to the economic and social well-being of the people of this state....'" (Yost v. Thomas (1984) 36 Cal.3d 561, 565, 205 Cal.Rptr. 801, 685 P.2d 1152 (Yost), quoting § 30001, subds. (a)-(d).)
The Act creates a coordinated system of land use regulation for the entire coastal zone of the state. (See § 30103.) The Act's "cardinal requirement" (California Coastal Com. v. Quanta Investment Corp. (1980) 113 Cal.App.3d 579, 587-588, 170 Cal.Rptr. 263), and its central enforcement mechanism, is the requirement that any person who seeks to undertake a development within the coastal zone must first obtain a coastal development permit. (§ 30600, subd. (a).) The Act requires two sets of approvals. A developer must seek approval from the local government with jurisdiction over the area to be developed, subject to appeal to and review by the Commission, and must also seek a permit from the Commission itself. (§§ 30600-30601, 30625.)
In deciding whether to issue a permit or approve a permit already issued by the local government, the Commission must evaluate the proposed development for consistency with the policies of the Coastal Act. (§ 30200.) The Sierra Club contends that the Commission breached this duty in three ways: by ignoring inconsistencies between the Project and view preservation policies, by ignoring inconsistencies between the Project and habitat preservation policies, and by failing to issue written findings supporting its decision in the manner required by law. We consider each contention in turn.
*190 B. The Project Is Consistent with Coastal Act View Policies[**]
C. The Commission's Decision Complies with Coastal Policies Governing ESHA's
The Sierra Club argues that the record does not support the finding that the Project is consistent with section 30240, which calls for the protection of ESHAs. Section 30240 requires that ESHAs be protected against habitat disruption, and requires development in adjacent areas to be designed to prevent degradation of the habitat and compatible with continuance of the habitat area. We conclude that the Commission did not err.
1. Substantial Evidence Supports the Conclusion That the Project Will Not Significantly Affect Any ESHA
An ESHA is "any area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments." (§ 30107.5.) The Commission found that the Project area was not an ESHA. Substantial evidence supports that finding.
The Commission relied in part on the City's 1998 EIR, which analyzed in depth the plant and animal habitat resources in the area. The EIR concluded, "The project site generally contains very low habitat resource values and none of the sensitive species found in the adjacent Ballona Wetlands are dependent on resources found exclusively on the project site.... [T]he scattered patches of coastal sage scrub do not represent sufficient habitat to support the wildlife typically found in this habitat type.... Those mammals observed on-site are comprised of common and relatively disturbance-tolerant species and no sensitive species were observed or are expected." The EIR reviewed several surveys of the Project area conducted in 1989-90 and updated in 1997 and found no sensitive mammals, birds, reptiles, or invertebrates present. It concluded that the Project would not have significant environmental habitat impacts.
As the Sierra Club correctly points out, the EIR identifies one significant plant species on the siteDiegan sage scrub. To qualify as an ESHA, an area must contain habitat that is "rare or especially valuable." (§ 30107.5.) The Department of Fish and Game concluded 20 years ago that the habitat was not especially valuable, because development outside the coastal zone and outside the control of the Commission would make it impossible to manage the habitat as an ESHA. A 1989-90 field survey found limited habitat value because of low soil nutrient content, erosion and habitat disturbance. The City EIR confirmed that by 1997, only isolated stands of scrub were left, and they were disturbed by ongoing disking of the bluff top, outside the coastal zone. The Commission's biologist concluded that no ESHA existed because the sage scrub habitat on the site is scattered, severely degraded, and therefore of little value. A Catellus biologist agreed. Based on this evidence, the Commission could conclude that no ESHA existed.
The Sierra Club contends that the Commission could not consider the condition of the habitat in determining whether it was especially valuable, and thus an ESHA. We cannot reconcile this view with the plain language of section 30107.5 or with Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 83 Cal. Rptr.2d 850 (Bolsa Chica). Section *191 30107.5 and section 30240 are intended to ensure preservation of "rare or especially valuable habitat" from degradation. (§ 30107.5.) If habitat has been degraded already and is not viable, there is nothing left to protect, and preservation of unviable habitat will do little to promote the policies underlying the Coastal Act. Bolsa Chica recognizes this point explicitly: "We do not doubt that in deciding whether a particular area is an ESHA within the meaning of section 30107.5, [the] Commission may consider, among other matters, its viability." (Bolsa Chica, supra, 71 Cal. App.4th at p. 508, 83 Cal.Rptr.2d 850.) The Department of Fish and Game concluded in 1984 that the sage scrub habitat on the bluff face, positioned as it was near existing and probable development, would not be viable. Reevaluating the habitat in 2000, the Commission could consider the evidence showing that the existing habitat was not viable and of little value and find that the habitat was not an ESHA.
The Sierra Club disregards the recommendations of the Commission and Catellus biologists and the survey contained in the EIR and instead points to other evidence in the record that it contends shows the Project area is an ESHA, relying primarily on its expert, Dr. Travis Longcore. The Sierra Club's evidence on this point establishes only that reasonable minds might differ. For purposes of our review, the existence of contrary or conflicting evidence, or inferences therefrom, does not preclude our conclusion that, in light of the whole record, other evidence supports the findings that the Commission did adopt. (Pygmy Forest, supra, 12 Cal. App.4th at p. 610, 15 Cal.Rptr.2d 779.)
2. ESHA Protections Do Not Apply to Areas Which Are Not Now ESHAs
The Sierra Club contends further that the Project is inconsistent with the Coastal Act's habitat protection requirements because Catellus's revegetation of the bluff face will create an ESHA in the future. The Sierra Club argues that the Coastal Act's language and underlying intent require planned future ESHAs to be subject to ESHA protections in the present. This is an issue of first impression. We conclude that both the language and intent of the Coastal Act dictate the opposite conclusion: ESHA protections do not apply unless an area is currently an ESHA.
Under section 30240, "[environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas." (§ 30240, subd. (a).) Under the plain meaning of this provision, environmental protections flow from recognition that an area is currently an ESHA. Nothing in the statute suggests that these protections should apply before an area becomes an ESHA, or should continue to apply if it is no longer an ESHA.
Accepting the Sierra Club's invitation to consider the underlying purposes of the Coastal Act, we reach the same conclusion. Catellus's restoration of habitat along the bluff face is an environmental benefit, and is consistent with the Coastal Act's goal of protecting coastal environmental resources. (§ 30240.) It creates valuable habitat where none now exists. If we were to adopt the Sierra Club's interpretation, we would create disincentives for any future developer to engage in habitat restoration as part of a development. We decline to interpret section 30240 in this manner.
Consequently, nothing in the Commission's approval of the Project is inconsistent with these protections. The bluff face is not now an ESHA. The Commission can *192 authorize development along the bluff face without violating section 30240, subdivision (a). Catellus may construct Street A, and then restore the surrounding areas. If its restoration results in creation of an ESHA, only then will the protections of section 30240 apply.
3. The Commission Does Not Have Jurisdiction to Consider the Impact of Development Outside the Coastal Zone
Finally, the Sierra Club argues that the Commission failed to consider the impact of the Project on adjacent ESHAs. We conclude that the Commission gave sufficient consideration to the impact of those portions of the Project subject to its jurisdiction.
Section 30240, subdivision (b) provides: "Development in areas adjacent to environmentally sensitive habitat areas ... shall be sited and designed to prevent impacts which would significantly degrade those areas, and shall be compatible with the continuance of those habitat ... areas." The Project is adjacent to the Ballona wetlands, an ESHA inside the coastal zone. The EIR and Commission staff considered the impact of the development inside the coastal zone, Street A, on the Ballona wetlands and determined that that development would not be incompatible with and would not significantly degrade the wetlands. The Commission considered these reports and concluded that approval of development in the coastal zone was consistent with section 30240, subdivision (b). The reports constitute substantial evidence sufficient to support the Commission's decision.
However, the Sierra Club contends that the Commission erred as a matter of law by failing to consider the impact of the portion of the Project outside the coastal zone on the Ballona wetlands. According to the Sierra Club, because development inside the coastal zone (Street A) will support development outside the coastal zone (housing atop the bluff), the Commission has jurisdictionand, indeed, is statutorily obligatedto consider and reject the development inside the coastal zone because that portion of the project outside the coastal zone impacts an ESHA.
The Sierra Club's argument raises a previously unresolved issue. When a project straddles the coastal zone border, does the Commission have jurisdiction to evaluate the impacts emanating from the portion of the project outside the coastal zone before issuing a coastal development permit? For the reasons that follow, we hold that it does not. The Commission may not consider the environmental impacts of development outside the coastal zone when deciding whether to approve development inside the coastal zone.
As both sides agree, resolution of this issue hinges on the construction of a pair of statutes, section 30200 and section 30604, subdivision (d). Section 30200 provides in relevant part, "All public agencies carrying out or supporting activities outside the coastal zone that could have a direct impact on resources within the coastal zone shall consider the effect of such actions on coastal zone resources in order to assure that [the policies of the Coastal Act] are achieved." According to the Sierra Club, the portion of the Project inside the coastal zone will "support" the portion of the Project outside the coastal zone; therefore, the Commission must base its permit decision on the effect of out-of-zone portions of the Project. In other words, the Sierra Club argues that notwithstanding the fact that only a portion of Street A is within the coastal zone, the Commission must consider the impact of the entire expanse of Street A and the housing development because that portion *193 of Street A that is within the coastal zone supports or enables the Project.
However, section 30604, subdivision (d) provides: "No development or any portion thereof which is outside the coastal zone shall be subject to the coastal development permit requirements of this division, nor shall anything in this division authorize the denial of a coastal permit by the commission on the grounds the proposed development within the coastal zone will have an adverse environmental effect outside the coastal zone." According to the Commission, under section 30604, subdivision (d), the portion of the Project outside the coastal zone is exempt from Commission regulatory authority, including any authority to consider that portion's adverse impacts inside the coastal zone.
In interpreting section 30604, subdivision (d), the legislative history is instructive. Until 1978, section 30604, subdivision (d) read as follows: "Nothing in this division shall authorize denial of a coastal development permit on grounds that a portion of the proposed development not within the coastal zone will have adverse environmental impacts outside the coastal zone; provided however, that the portion of the proposed development within the coastal zone shall meet the requirements of this chapter." This former version of section 30604, subdivision (d) addressed only the two simplest scenarios. Under former section 30604, subdivision (d), impacts outside the zone from development outside the zone could not be considered, while impacts inside the zone from development inside the zone had to be considered. As for the two more complicated scenariosimpacts inside the zone from development outside the zone, and impacts outside the zone from development inside the zoneformer section 30604, subdivision (d) was silent or at best ambiguous.
In 1978, the Legislature addressed this ambiguity and amended section 30604, subdivision (d) to clarify the scope of the Commission's jurisdiction over development that raised either of these two more complicated scenarios. The second clause of section 30604, subdivision (d) now expressly addresses impacts outside the zone from development inside the zone: "[Nothing] in this division [shall] authorize the denial of a coastal permit by the commission on the grounds the proposed development within the coastal zone will have an adverse environmental effect outside the coastal zone." Thus, the Legislature elected not to extend jurisdiction over such effects to the Commission. In turn, the first clause of section 30604, subdivision (d) addresses development outside the coastal zone: "No development or any portion thereof which is outside the coastal zone shall be subject to the coastal development permit requirements of this division...." For these portions of a development, the Commission has no jurisdiction to require permits.
The legislative history illuminates the intent behind the 1978 amendment. The Senate Natural Resources and Wildlife Committee summary of Senate Bill No. 1873, which amended section 30604, subdivision (d), explained that the amendment was intended to resolve doubts over treatment of parcels straddling the coastal zone boundary. It cited an Attorney General opinion letter that concluded that if the coastal zone bisected a parcel, the Commission could look at the entire parcel in making its permitting decision.[4] The proposed *194 amendment rejected that position. (Sen. Com. on Natural Resources and Wildlife, Analysis of Sen. Bill No. 1873 (1977-1978 Reg. Sess.) as introduced March 22, 1978, p. 3.) As the Assembly Resources, Land Use and Energy Committee summary similarly explained, the measure was needed to "clarify that when a development project is partially within and partially without the coastal zone, only that portion of the project within the coastal zone is subject to commission jurisdiction ...." (Assem. Com. on Resources, Land Use and Energy, Analysis of Sen. Bill No. 1873 (1977-1978 Reg. Sess.) as amended August 7, 1978, p. 3; see also California Coastal Commission, Enrolled Bill Rep. on Sen. Bill No. 1873 (1977-1978 Reg. Sess.) Sept. 13, 1978, p. 2 [amendment "makes clear the Coastal Commissions have no jurisdiction over portions of projects lying outside the coastal zone"].)
The history confirms that the Legislature intended to reject the notion that Commission jurisdiction over part of a project could be leveraged into jurisdiction over the entire project. If the Commission has no jurisdiction over the portion of a project outside the coastal zone, it follows that the Commission has no jurisdiction to evaluate that portion of the project to determine whether its effects are consistent with Coastal Act policies. Furthermore, if the Commission cannot make findings that the portion of a project outside the coastal zone is inconsistent with Coastal Act policies, it cannot use any such findings as a basis for denying a permit for the portion of the project inside the coastal zone. Thus, we conclude that the first clause of section 30604, subdivision (d) prevents the Commission from denying in-zone permits based on environmental impacts originating outside the coastal zone. In this case, the Commission cannot deny the permit for that portion of Street A within the coastal zone based on the environmental effects of the 114 houses outside the zone.
The Sierra Club argues that the first clause of section 30604, subdivision (d) only limits the Commission's permitting jurisdiction, and does not preclude the Commission from considering the effects of development outside the coastal zone. The Sierra Club further contends that the Commission is required to consider these effects under section 30200, because its permit approval of Street A supports the building of homes along the bluff top, outside the coastal zone, and the Commission should refuse a permit for Street A if those homes would have adverse environmental impacts. (See § 30200 ["All public agencies carrying out or supporting activities outside the coastal zone that could have a direct impact on resources within the coastal zone shall consider the effect of such actions on coastal zone resources in order to assure that [the policies of the Coastal Act] are achieved."].)
The argument does not withstand scrutiny because it founders on a logical inconsistency. If, on the one hand, the construction of Street A is unrelated to the building of homes on the bluff top, then the construction of Street A cannot be said to support development outside the coastal zone under section 30200. There would be no nexus between the decision to deny a permit for Street A and the goal of reducing environmental impacts from an entirely unrelated portion of the Project. If, on the other hand, the building of Street A is essential to the construction of homes on the bluff top, such that without Street A some smaller number of homes would have to be built, then the Commission would be able to ensure a reduced development on the bluff top, outside the coastal zone, by denying a permit for Street A. But this is precisely what the 1978 amendments to *195 section 30604, subdivision (d) sought to prevent when they placed all portions of projects outside the coastal zone beyond the reach of Commission jurisdiction. We decline to interpret section 30604, subdivision (d) and section 30200 so as to allow the Commission to accomplish through the back door what the Legislature has told it it may not accomplish through the front door.[5]
The Sierra Club argues that such an interpretation of section 30604, subdivision (d) would work an impermissible implied repeal of section 30200. "`[T]he law shuns repeals by implication ....' [Citation.] ... Thus, to avoid repeals by implication `we are bound to harmonize ... provisions' that are claimed to stand in conflict." (Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 249-250, 279 Cal.Rptr. 325, 806 P.2d 1360.) However, this argument hinges on a misapplication of the doctrine disfavoring implied repeals. The doctrine provides that "`where two statutes treat the same subject, one being special and the other general, unless they are irreconcilably inconsistent, the latter, although latest in date, will not be held to have repealed the former, but the special act will prevail in its application to the subject matter as far as coming within its particular provisions....'" (Wolfe v. Dublin Unified School Dist. (1997) 56 Cal.App.4th 126, 135, 65 Cal.Rptr.2d 280.) It applies when a later general statute follows an earlier specific statute. Here, however, the Legislature passed a later specific statute, the amended version of section 30604, subdivision (d), two years after an earlier general statute, section 30200.
Instead, we apply the following canons of construction in reaching our interpretation. A more recent provision is typically more persuasive than an older one. (See Schmidt v. Superior Court (1989) 48 Cal.3d 370, 383, 256 Cal.Rptr. 750, 769 P.2d 932; Schmidt v. Southern Cal. Rapid Transit Dist. (1993) 14 Cal. App.4th 23, 27, 17 Cal.Rptr.2d 340.) Section 30604, subdivision (d) is the more recent provision. We give effect to a specific statute relating to a particular subject in preference to a general statute. (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 992, 73 Cal.Rptr.2d 682, 953 P.2d 858.) Section 30604, subdivision (d) deals specifically with the geographic scope of the Commission's jurisdiction in issuing permits for projects that straddle the coastal zone; section 30200 deals generally with any agency's actions, and does not define the phrases "supporting activities," which on its face may or may not extend to the issuance of permits inside the coastal zone. Whenever possible we seek "to achieve harmony between conflicting laws [citation] and avoid an interpretation which would require that one statute be ignored." (Schmidt v. Southern Cal. Rapid Transit Dist, supra, 14 Cal.App.4th at p. 27, 17 Cal.Rptr.2d 340; see Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1086, 90 Cal.Rptr.2d 334, 988 P.2d 67["[O]ur duty is to harmonize [statutes] if reasonably possible"].) We cannot adopt the Sierra Club's interpretation of section 30200 without largely ignoring section 30604, subdivision (d). The reverse does not hold true; if we interpret section 30604, subdivision (d) as governing the Commission's jurisdiction, section 30200 *196 still controls the responsibility of other agencies (such as the City) to consider the impact of their actions (such as approval of development on the bluff top) on coastal resources.
The Sierra Club also turns to the federal Coastal Zone Management Act (CZMA), in support of its interpretation of section 30604, subdivision (d). (16 U.S.C. §§ 1451-1465.) Under the CZMA, an entity conducting an activity that affects coastal zone resources must seek a federal permit, and must include in its application a certification that its activity complies with state coastal zone policies. (16 U.S.C. § 1456, subd. (C)(3)(A).) The state's coastal agency must notify the federal permitting agency (here, the Army Corps of Engineers) whether it concurs in the certification. (Ibid.) Catellus sought and obtained such a permit here. According to the Sierra Club, the CZMA expands the Commission's jurisdiction and authorizes it to review all aspects of the Project, whether inside or outside the coastal zone.
We need not address the thorny federalism questions raised by the Sierra Club's contention. The Sierra Club has not challenged the Army Corps of Engineers' decision to issue Catellus a permit, nor has it challenged the Commission's role in the issuance of that permit. The only issue before us is whether the Commission acted properly in issuing state development permits. With respect to those permits, we believe the Legislature expressed its intent when it amended section 30604, subdivision (d) in 1978. The Sierra Club cites two cases that involve the courts' obligation to reconcile multiple state statutes addressing a single subject, but those cases have no bearing when a state statute and a federal statute, each addressing a different permitting decision, are at issue. (See DeVita v. County of Napa (1995) 9 Cal.4th 763, 778, 38 Cal.Rptr.2d 699, 889 P.2d 1019 [reconciling Election Code and Government Code provisions]; People v. Andrade (2002) 100 Cal.App.4th 351, 357, 121 Cal.Rptr.2d 923 [harmonizing Penal Code sections].) The provisions of the CZMA, a federal law, offer us no reason to arrive at a different interpretation of section 30604, subdivision (d).
Our holding that the Commission is barred from considering environmental impacts emanating from outside the coastal zone will not result in those impacts being ignored, nor will it leave the environment unprotected. The Legislature has seen fit to spread the responsibility for coastal protection between state and local agencies. (See § 30004.) Local government still has a vital role: "[t]o achieve maximum responsiveness to local conditions, accountability and public accessibility, it is necessary to rely heavily on local government and local land use planning procedures and enforcement." (§ 30004, subd. (a).) Consideration of environmental impacts originating outside the coastal zone is the responsibility of the local agency with authority over their point of originhere, the City. It is not the responsibility of the Commission.
The Commission's conclusion that the portions of the Project inside the coastal zone are consistent with the environmental policies of the Coastal Act is supported by substantial evidence. In confining its analysis to these portions of the Project, the Commission respected the boundaries on its power set out for it by the Legislature. The trial court properly denied the Sierra Club's petition for a writ of mandate on this basis.
D. The Commission Was Permitted to Adopt Formal Written Findings After Its Approval of the Project
Before the August 7, 2000, hearing on the Project, the Commission's staff prepared *197 a detailed report addressing the Project and its consistency with the Coastal Act and California Environmental Quality Act (CEQA). The staff report recommended approval of the Project, subject to elimination of Street A, and included findings supporting its recommendation.
The Commission adopted the staff recommendations and approved the Project, with one notable change; it approved the Project with Street A. Because the draft findings did not address the consistency of this version of the Project with the Coastal Act and CEQA, the Commission directed its staff to prepare revised findings. At a December 11, 2000, meeting, the Commission approved these revised findings.
The Sierra Club contends that this procedure was improper. It argues that the Coastal Act prohibits the Commission from approving a project first and issuing revised written findings later. In our previous decision, we expressly reserved opinion on whether it was proper for the Coastal Commission to adopt written findings after it had issued a permit. We now conclude that post-hearing revised written findings are lawful under the circumstances presented here.
The Coastal Act requires that Commission decisions be supported by findings. (§ 30604, subds.(a)-(c).) Code of Civil Procedure section 1094.5, the basis for the Sierra Club's petition, imposes a similar requirement. "[I]mplicit in section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order." (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515, 113 Cal.Rptr. 836, 522 P.2d 12 (Topanga).) Section 1094.5 thus requires an agency to reveal the route it took from evidence to action. (Ibid.) We agree with the Sierra Club's contention that the reasoning from evidence to action must precede the decision to act; post hoc rationalizations arrived at only after an agency has made up its mind are of no benefit to a court attempting to evaluate an agency's action under section 1094.5, and they do not satisfy Topanga's requirement that the agency reveal the analytical route actually taken.
However, it is one thing to say that the agency's reasoning must precede its decision. It is quite another to say, as the Sierra Club argues, that the written findings which manifest the agency's reasoning must precede the decision. There is no such requirement in the Coastal Act or in Code of Civil Procedure section 1094.5. By analogy, it is commonplace for trial courts to first indicate their views on a matter at a hearing and only later adopt a written order or set of findings spelling out their decision. This does not mean that the written order consists only of post hoc rationalizations; instead, it means that the process of documenting the reasoning leading up to a decision may follow the actual rendering of that decision. The Sierra Club offers no statutory authority to support the argument that the Legislature intended to preclude agencies such as the Commission from proceeding in a similar fashion and announcing decisions prior to the preparation and approval of formal findings.
Regulations adopted under the Coastal Act authorize the procedure followed by the Commission in this case. California Code of Regulations, title 14, section 13096, subdivision (a) provides: "All decisions of the commission relating to permit applications shall be accompanied by written conclusions about the consistency of the application with [the Public Resources Code] and findings of fact and reasoning supporting the decision." The regulations *198 recognize that decisions of the commission will sometimes be "different than those proposed by the staff in the staff recommendation ...." (Cal.Code Regs., tit. 14, § 13090, subd. (d).) When that occurs, the prevailing commissioners must "state the basis for their action in sufficient detail to allow staff to prepare a revised report with proposed revised findings that reflect the action of the commission." (Id., § 13096, subd. (b).) The commissioners must then approve the revised findings at a public hearing. "The public hearing shall solely address whether the proposed revised findings reflect the action of the commission." (Id, § 13096, subd. (c).) We see no inconsistency between the procedure permitted by these regulations and any statutory requirements; notably, neither Public Resources Code section 30604 nor Code of Civil Procedure section 1094.5 specifies when the required findings must be made.
Our conclusion is consistent with that of the Second District, which recently upheld the issuance of postdecision revised findings. (La Costa Beach Homeowners' Assn. v. California Coastal Com. (2002) 101 Cal. App.4th 804, 819, 124 Cal.Rptr.2d 618 (La Costa).) In La Costa, three homeowners sought approval of a plan to demolish the existing homes on their seaside lots and construct new residences. The Commission approved their permits, including an oral modification to certain conditions imposed on the permits. Because of this modification, the Commission staff issued revised proposed findings six weeks after the approval hearing. These revised findings reflected the actions actually taken by the Commission at the approval hearing and included an expanded justification for the approval. (Id. at p. 812 & fn. 5, 124 Cal.Rptr.2d 618.) The Commission adopted the revised findings two months after the approval hearing. (Id. at p. 813, 124 Cal. Rptr.2d 618.)
Neighbors petitioned to overturn the Commission's actions. They argued that the posthearing revised findings were "post hoc rationalizations of a decision that was not otherwise supported." (La Costa, supra, 101 Cal.App.4th at p. 819, 124 Cal. Rptr.2d 618.) The Second District disagreed. It upheld the post-approval revised findings as simply "reflect[ing] in writing the rationale that the Commissioners and staff articulated on the record at the [approval] hearing." (Ibid.) Implicit in La Costa is the recognition that the Commission mayindeed, mustissue revised findings when the decision it reaches departs in one or more particulars from the recommendation supplied by staff. We agree with that conclusion.
The Sierra Club expresses concern that the formal findings were adopted after litigation had ensued. This posed no obstacle in La Costa, where findings were likewise adopted after a petition had been filed, and it poses no obstacle here. We decline to adopt a rule that would preclude an agency from spelling out its reasoning once a petition for a writ of mandate has been filed. We also decline to adopt a rule specifying just how promptly written findings must be made. It is always easier to be certain that an agency's stated reasoning is bona fide when findings are issued before a decision is reached, and the longer an agency waits to explain its decision, the more one might question whether the approved findings reflect the actual reasoning. On the other hand, the Commission's role is not to serve as a rubber stamp for its staffs recommendations. If the Commission affords a meaningful hearing to the parties before it and reaches conclusions significantly different from those proposed by staff, a longer revision period may be necessary. Ultimately, procedural objections to whether findings are sufficient must be *199 decided on a case-by-case basis, according to the standard spelled out by Topanga: Has the agency revealed its actual, pre-decision reasoning in sufficient detail to allow judicial review? If so, then from a procedural standpoint, the agency's findings are sufficient.
This rule does not mean that post-approval findings will always be acceptable. An agency must reason first, and reach its decision second. Written findings may come before or after, so long as they reflect the reasoning actually engaged in before the decision has been reached. In Bam, Inc. v. Board of Police Comrs. (1992) 7 Cal.App.4th 1343, 9 Cal.Rptr.2d 738 (Bam), for example, an agency-appointed hearing examiner prepared detailed factual findings concerning an adult motion picture arcade's operations and recommended that the agency deny a pending application to suspend the arcade's license. After a hearing, the agency rejected the examiner's recommendation with "nary a word of explanation." (Id. at p. 1348, 9 Cal.Rptr.2d 738.) Revised findings were apparently prepared, but never adopted. (Id. at p. 1349, fn. 4, 9 Cal.Rptr.2d 738.) The court of appeal properly directed the trial court to issue a writ of mandate vacating the license suspension and requiring the agency to issue findings before it made a new decision. It did so because the record left it "at a loss to understand why the Board did what it did." (Id. at p. 1346, 9 Cal.Rptr.2d 738.)
This case resembles La Costa, not Bam. The record reveals why the Commission acted as it did, and the revised findings adopted in December 2000 reflect the Commission's actual reasoning, rather than a post hoc rationalization. For all subjects other than Street A, the revised findings mirror the proposed findings prepared before the August 7, 2000, hearing. With respect to Street A, those commissioners voting to allow Street A explained their reasoning at the August 7 hearing, citing its limited visibility and the corresponding Project benefits, including the prevention of future bluff-face development. The revised findings on Street A track these reasons. Consequently, the record reveals the analytical route the Commission took in reaching its conclusions, in accord with Topanga.
III. The Commission's Decision Complies with CEQA[***]
Disposition
The judgment is affirmed. The stay issued October 10, 2002, is dissolved.
We concur: STEVENS, ACTING P.J., and SIMONS, J.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II.B and all its subparts and part III.
[1] The City did not appear in this action. However, appellant Spirit of the Sage Council also sued the City in a separate action in Los Angeles Superior Court, challenging its approval of the Project. The City prevailed in the trial court in that action. The appeal in Coalition of Concerned Communities v. City of Los Angeles, B149092, is pending in the Second District.
[2] Unless otherwise indicated, all further section references are to the Public Resources Code.
[**] See footnote *, ante.
[4] The informal opinion letter addressed the question we face: "To what extent may the coastal commissions assert jurisdiction over developments that take place on parcels of land that lie partly inside and partly outside the inland coastal zone boundary?" (Cal. Atty. Gen., Indexed Letter, No. SO IL 77/20, August 26, 1977, p. 2.) The opinion letter concluded in part, "It is submitted that the Legislature intended to authorize the commission to deny permits on the basis that the portion of a development outside the coastal zone would have adverse environmental impacts inside the coastal zone." (Id. at p. 6.) This is precisely the position the Sierra Club now urges upon us.
[5] Nor, we should note, has the Commission asked us to do so. At oral argument, counsel for the Commission candidly acknowledged that the Commission is usually more than willing to seek to expand its jurisdiction; this case represents the rare instance in which it is not seeking to do so, in recognition of legislatively imposed limits on that jurisdiction.
[***] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261766/ | 132 Cal.Rptr.2d 207 (2003)
107 Cal.App.4th 673
AMALGAMATED TRANSIT UNION, LOCAL 1277, Plaintiff and Appellant,
v.
LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Defendant and Respondent.
No. B153994.
Court of Appeal, Second District, Division Two.
March 28, 2003.
Rehearing Denied April 17, 2003.
Review Denied June 25, 2003.[*]
*210 Neyhart, Anderson, Freitas, Flynn & Grosboll, William J. Flynn, San Francisco, Linda Lu Castronovo, Oakland, for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Brian P. Walter, Los Angeles, Kevin R. Dale, for Defendant and Respondent.
BOREN, P.J.
An employee who eventually recovered fully from an industrial injury sought to return to her job as a mechanic. The employee's union filed a grievance under the collective bargaining agreement requesting the employee be returned to work and seeking back pay for her. But even after she was capable of working without any restrictions or limitations, she was for a time not permitted by her employer to return to work.
Appellant Amalgamated Transit Union Local 1277 (the Union) appeals from the trial court's denial of a petition to compel the employer, respondent Los Angeles County Metropolitan Transit Authority (the MTA), to arbitrate pursuant to their collective bargaining agreement. We find that the Workers' Compensation Act is not an exclusive remedy that would preclude arbitration, that the dispute is covered by the arbitration provision in the collective bargaining agreement, and that arbitrator is to resolve the issue of attorney fees.
ACTUAL AND PROCEDURAL SUMMARY
Nadine Sutherland has been employed by the MTA as a bus mechanic since 1985. In December of 1995, Sutherland was working at her job and holding a tool when she injured a finger on her left hand, her dominant hand. She recovered from the injury to her finger, but then developed tendonitis. Thereafter, Sutherland's radial collateral ligament was partially torn, and she was treated with a series of cortisone injections. In February of 1997, she had some loss of strength in her grip, but was deemed fully capable of performing her duties as a mechanic. She was not considered a qualified injured worker.
Further problems ensued with Sutherland's left arm. She was diagnosed as having radial tunnel syndrome. In January of 1998, Sutherland had surgery. The surgery, which resulted in a six-inch scar on her on her forearm, was successful. Approximately three months later, she returned to her job without any restrictions. But her symptoms returned, and she stopped working for 10 days at a time in September of 1998 and February of 1999. Sutherland was treated with a corticosteroid injection into the radial tunnel and with an anti-inflammatory medication. During a two-year-long disability leave that began on May 30, 1999, Sutherland's condition improved.
In the interim, Sutherland saw several doctors regarding her workers' compensation claim. In August of 1999, Dr. Mark *211 Mandel, the agreed medical examiner for Sutherland's workers' compensation case, noted that Sutherland's job as a mechanic required her to lift and move items weighing up to 50 pounds, although she occasionally lifted heavier items. Dr. Mandel found that Sutherland "can do occasional lifting up to 75 lbs." but would need assistance in lifting items heavier than that.
However, Dr. Mandel concluded that in light of the industrial injury Sutherland had suffered, her job would have to be modified for her to continue working as a mechanic. Dr. Mandel determined that "[i]f modification is not possible, then she is indeed to be considered a qualified injured worker." The MTA determined that it could not provide the job modifications proposed by Dr. Mandel and deemed her a qualified injured worker.
In September of 1999, Dr. Brent Miller, Sutherland's primary treating physician, issued a progress report. He recommended amending Sutherland's work status to require no repetitive strenuous gripping or grasping with the left hand and a weight lifting restriction of 25 pounds. Dr. Miller found that this would preclude Sutherland from "returning to her usual and customary job as a heavy duty bus mechanic," and he recommended vocational rehabilitation.
In December of 1999, Sutherland through her Union filed a grievance. The grievance alleged that she wanted to go back to work but that the MTA acted in bad faith. Sutherland referred to Dr. Mandel's observation that mechanics are required to lift items up to 50 pounds, and that Sutherland could lift items up to 75 pounds. She thus requested back pay from August 11, 1999, the date of Dr. Mandel's report, and requested to be allowed to return to work.[1]
Several days later, the MTA denied Sutherland's grievance. The MTA's denial of the grievance stated: "We are not able to modify your job to the degree indicated on the Agreed Medical Examiner's Report. Therefore based on the Agreed Medical Examiner's Report you have been deemed a Qualified Injured Worker. You are eligible to receive Vocational Rehab." The MTA's denial was based on its determination that Sutherland's complaint was "not a grievance because there has been no contract violation [and that the matter] is a workers comp issue."
Approximately six months later, on June 1, 2000, after a second-step hearing on Sutherland's grievance, the MTA again denied the grievance. The MTA defined the issue as whether Sutherland had been "denied the opportunity to work." The MTA noted that the Union's position was that since Dr. Mandel, the agreed medical examiner, had found 10 months earlier that Sutherland would only need assistance in lifting objects weighing more than 75 pounds, she would be able to return to work as a mechanic if the MTA would accommodate this restriction. The MTA observed that Dr. Mandel had also suggested additional work restrictions for Sutherland and a modification of her job with a "lateral shift" within the transit authority structure to a less hand-intensive job. However, the MTA denied the grievance at the second step on the basis that *212 "the final decision on her ability to return to her pre-injury occupation will be adjudicated by the Worker's Compensation Appeals Board."
On June 7, 2000, the Union requested that the MTA arbitrate the grievance.[2] The MTA refused to arbitrate Sutherland's request for back pay and to return to work.
On June 14, 2000, Sutherland applied for a disability retirement from the MTA. At the request of the MTA in August of 2000, Dr. J. Yogaratnam evaluated Sutherland, who was still on a total disability medical leave. Sutherland did not at that time consider herself to have any current medical problem and stated that she "would like to go back to work." Dr. Yogaratnam's examination revealed no evidence of any medical deficiency, and he concluded that Sutherland "may return to her regular work duties without restriction." The MTA then denied Sutherland's request for a disability retirement.
In September of 2000, the MTA sent the Workers' Compensation Appeals Board (WCAB) a copy of Dr. Yogaratnam's report, which found Sutherland capable of returning to her job without any restrictions. The WCAB then ordered Dr. Mandel to re-examine Sutherland.
On November 13, 2000, Dr. Mandel reexamined Sutherland and issued to the WCAB an agreed medical examiner's final rating report. Dr. Mandel suggested only as "a prophylactic restriction" a modified position as a mechanic, permitting her to "return to work as long as she obtained some assistance in lifting items weighing more than 75 lbs.," and finding that she did not need to be retrained. According to Dr. Mandel, Sutherland "does have sufficient function that she can return to work as a Mechanic A [her classification at the MTA]."
Dr. Mandel also noted in his November 2000 report that approximately three months earlier Dr. Yogaratnam had similarly determined that Sutherland "could return to her regular job duties without restrictions." Dr. Mandel concluded as follows: "I am not going to give her an actual restriction, but I am going to phrase it as a prophylactic restriction that is not of sufficient magnitude that it is going to impact upon her ability to safely perform her job.... The patient, therefore, should be returned to her job duties as a Mechanic A, and this will obviate the need for retraining."
According to the MTA's risk management claims manager, the MTA then decided to take Dr. Mandel's deposition to "clarify" statements in his report and to explain certain unspecified contradictions between his August 1999 report and his November 2000 report. Apparently, some delay ensued because of Dr. Mandel's schedule, and an MTA attorney finally took his deposition on April 17, 2001.
*213 Meanwhile, on April 10, 2001, the Union filed a petition to compel arbitration. At a hearing on the matter, the trial court remarked that nothing in the collective bargaining agreements "requires the MTA to arbitrate the issue of an employee's ability to return to work if the employee has a pending workers' comp claim and an agreed medical examiner has stated that the employee needs modification, vocational rehabilitation or restriction. Such an agreement would not make any sense." The trial court also opined that since the MTA was abiding by the statements of the medical examiners, the Union had not demonstrated a viable discrimination claim under Labor Code section 132a (a claim, however, later settled before the WCAB and resolved in Sutherland's favor).
On August 20, 2001, the trial court denied the Union's petition to compel arbitration and for an award of attorney fees, and then denied the Union's alternative request to amend the complaint to state a claim for breach of contract. After the MTA prevailed, it moved for attorney fees and costs as provided in the 2000 Agreement, but thereafter withdrew its request.
On May 9, 2001, the MTA permitted Sutherland to return to work as a mechanic. At the time Sutherland returned to work from her disability leave, her case before the WCAB was still pending.
After the appeal in the present case was filed, all Sutherland's workers' compensation claims were resolved. On December 12, 2002, Sutherland was awarded a $5,000 settlement as to the underlying disability claim and $35,000 for a Labor Code section 132a discrimination claim as to back pay or lost wages. The settlement specified that the amount awarded for back pay or lost wages was to be credited to the MTA in the event of any recovery in the present case.
DISCUSSION
I. Workers' Compensation not an exclusive remedy here
According to the MTA, Sutherland's grievance seeking her return to work related directly to her workers' compensation case, and her grievance was merely an attempt to circumvent the findings of the agreed medical examiner in the workers' compensation proceeding. However, contrary to the MTA's contention, Sutherland's pending workers' compensation claim does not defeat her effort to arbitrate the present claim.
The Workers' Compensation Act (Lab.Code, § 3200 et seq.) generally provides an exclusive remedy for injuries incurred in the course of a person's employment. (Lab.Code, §§ 3600, 3602, subd. (a).) Where the exclusive remedy rule applies (see Shoemaker v. Myers (1990) 52 Cal.3d 1, 13-17, 276 Cal.Rptr. 303, 801 P.2d 1054), it precludes "an action at law." (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96, 151 Cal.Rptr. 347, 587 P.2d 1160.) The statutory language establishing workers' compensation as an exclusive remedy against an employer provides that an employee's industrial injury precludes an employee from bringing "an action at law for damages against the employer." (Lab. Code, § 3602, subd. (a).) The present case, however, involves "[a] proceeding to compel arbitration [that] is in essence a suit in equity to compel specific performance of a contract." (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 479, 121 Cal.Rptr. 477, 535 P.2d 341.) The Union's equitable petition to compel arbitration thus does not fall within the statutory language, which prohibits only actions at law for damages.
The situation is akin to that in Hicks v. Allegheny East Conference Ass'n (D.C. 1998) 712 A.2d 1021, where a teacher who *214 received workers' compensation benefits for an injury resulting from an altercation with a student was not precluded from filing a suit challenging the school's sanction of probation placed upon her for the incident. The teacher sought on appeal only injunctive relief to enforce the grievance procedures contained in her employment contract. Her suit was a suit in equity. As in the present case, the exclusivity provision in the workers' compensation statute applied only to suits at law for damages. (Id, at p. 1022.)
Additionally, Sutherland's workers' compensation claim entailed a Labor Code section 132a discrimination claim, which ultimately was settled in her favor, and such a claim is not subject to the exclusive remedy rule. In City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 77 Cal. Rptr.2d 445, 959 P.2d 752, our Supreme Court held that a Labor Code section 132a claim did not provide the exclusive remedy for employment discrimination based on disability arising from an industrial injury. The Court explained that Labor Code sections 3600 and 3602, which set forth the exclusivity of the workers' compensation remedy as against an employer, apply only to liability for compensation provided in division 4 of the Labor Code, while section 132a is in division 1 of the code. (City of Moorpark v. Superior Court, supra, at pp. 1154-1155, 77 Cal. Rptr.2d 445, 959 P.2d 752.)
"Thus, the plain language of the exclusive remedy provisions of the workers' compensation law apparently limits those provisions to division 4 remedies. Remedies that the Legislature placed in other divisions of the Labor Code are simply not subject to the workers' compensation exclusive remedy provisions." (City of Moorpark v. Superior Court, supra, 18 Cal.4th at p. 1155, 77 Cal.Rptr.2d 445, 959 P.2d 752; see also Currie v. Workers' Comp. Appeals Bd. (2001) 24 Cal.4th 1109, 1113, 104 Cal.Rptr.2d 392, 17 P.3d 749.) Therefore, independent of any other reasons, because Sutherland had a Labor Code section 132a workers' compensation discrimination claim, she is not subject to the exclusive remedy rule.
Moreover, the present arbitration claim is the flip side of a workers' compensation claim and distinguishable from it. Sutherland's arbitration claim does not seek "compensation" or concern any related "right or liability" (Lab.Code, § 5300) for an "industrial personal injury." (Shoemaker v. Myers, supra, 52 Cal.3d at p. 16, 276 Cal.Rptr. 303, 801 P.2d 1054.) Rather, she seeks her salary for when she was allegedly no longer suffering the disabling effects of an industrial injury and was able to work, but was denied the right to work guaranteed in the collective bargaining agreement. Sutherland thus did not attempt to arbitrate injury compensation issues that were pending before the WCAB, and the Union acknowledges that there cannot be a double recovery of back pay.
Finally, in addition to the arbitration claim for back pay for the period when she was able but not permitted to work, Sutherland also demanded to be returned to work.[3] Indeed, the grievance as defined by the MTA in its letter dated June 1, 2000, was whether "the grievant [has] been denied the opportunity to return to work." That issue, as framed by the MTA, may reasonably be construed by an arbitrator to include not just a demand for back pay for when Sutherland should have been *215 working, but also a demand that she actually be returned to work. However, a return to work is not one of the workers' compensation benefits available by statute (Lab.Code, §§ 5300, 4550-4855) and covered by division 4 of the Labor Code to which the exclusive remedy rule would apply. (See Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 817, 102 Cal.Rptr.2d 562, 14 P.3d 234.) Sutherland's return to work was thus a remedy unavailable in this workers' compensation context, further undermining the notion of the exclusivity of workers' compensation as a remedy here.
Accordingly, workers' compensation is not an exclusive remedy in the present situation and does not bar arbitration of Sutherland's claim.
II. General principles of arbitration
A petition to compel arbitration is resolved in a summary proceeding with the trial court sitting as trier of fact and weighing declarations, documentary evidence and any oral testimony. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972, 64 Cal.Rptr.2d 843, 938 P.2d 903.) Pursuant to Code of Civil Procedure section 1281.2, unless the petitioner has waived arbitration, grounds exist for revocation of the agreement, or a party to the arbitration agreement is also a party to a pending matter with a third party and there is a possibility of conflicting rulings on a common issue, the trial court "shall order" the parties to arbitrate the controversy "if it determines that an agreement to arbitrate the controversy exists."
Unless the parties have clearly and unmistakably provided otherwise, the preliminary question of whether parties to a collective bargaining agreement have agreed to arbitrate a particular dispute is decided by the court, not the arbitrator. (United Public Employees v. City and County of San Francisco (1997) 53 Cal. App.4th 1021, 1026, 62 Cal.Rptr.2d 440.) Thus, the parties generally are not required to "`arbitrate the arbitrability question.'" (Litton Financial Printing Div. v. NLRB (1991) 501 U.S. 190, 208-209, 111 S.Ct. 2215, 115 L.Ed.2d 177, quoting AT & T Technologies v. Communications Workers (1986) 475 U.S. 643, 651,106 S.Ct. 1415, 89 L.Ed.2d 648.)
In determining whether a matter is subject to arbitration, courts apply the presumption in favor of arbitration (Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 971, 64 Cal.Rptr.2d 843, 938 P.2d 903) and generally invoke ordinary rules of contract interpretation. (Maggio v. Windward Capital Management Co. (2000) 80 Cal.App.4th 1210, 1214-1215, 96 Cal.Rptr.2d 168.) "`Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute.'" (Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 652, 35 Cal.Rptr.2d 800.) "However, there is no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate." (United Public Employees v. City and County of San Francisco, supra, 53 Cal.App.4th at p. 1026, 62 Cal.Rptr.2d 440.)
The right to arbitration ultimately depends upon the terms of the collective bargaining agreement, and a petition to compel arbitration is essentially a suit in equity seeking specific performance of that agreement. (United Public Employees v. City and County of San Francisco, supra, at p. 1026, 62 Cal.Rptr.2d 440.) An order denying a petition to compel arbitration is appealable. (Code Civ. Proc, § 1294.)
*216 `"Whether an arbitration agreement applies to a controversy is a question of law to which the appellate court applies its independent judgment where no conflicting extrinsic evidence in aid of interpretation was introduced in the trial court.' [¶] ... Where the trial court's decision on arbitrability is based upon resolution of disputed facts, we review the decision for substantial evidence. [Citation.]" (NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 71, 100 Cal. Rptr.2d 683.)
Here, there is no disputed extrinsic evidence regarding the proper interpretation of the arbitration clause. We thus are not bound by the trial court's construction of the agreement. Rather, we review the matter de novo and make an independent determination of whether the agreement to arbitrate exists and applies to the present circumstances. (See Marcus & Millichap Real Estate Investment Brokerage Co. v. Hock Investment Co. (1998) 68 Cal.App.4th 83, 89, 80 Cal.Rptr.2d 147; Powers v. Dickson, Carlson & Campillo (1997) 54 Cal.App.4th 1102, 1111, 63 Cal. Rptr.2d 261.)
III. The arbitration clause in the collective bargaining agreements
A. Application of the terms of the agreements
Both the 1997 and 2000 Agreements provide that all employees "who are available and work their assignments, shall be guaranteed" a full week of work. Both agreements also indicate that the MTA may discipline an employee "for proper cause." And both the 1997 and 2000 Agreements provide that if a "grievance or dispute" regarding "the interpretation or application of any terms of this Agreement" is not satisfactorily settled, the Union may demand "that it be submitted to arbitration" and the Union and the MTA "shall arbitrate such grievances or disputes."
In the present case, the grievance is on its face governed by the arbitration clause. The broad arbitration clause covers by its terms a "grievance or dispute" regarding "the interpretation or application of any terms" of the collective bargaining agreement. The issue in dispute here was whether the MTA's failure to return Sutherland to work breached the contract provisions noted above that guaranteed an "available" employee a full week of work and ensured that the employee would not be disciplined without "proper cause."
Indeed, after the second-step hearing on Sutherland's grievance, the MTA itself defined the grievance as whether "the grievant [has] been denied the opportunity to work." Since under the 1997 Agreement the issues submitted to arbitration were limited to those set forth and defined by the MTA, whether Sutherland was improperly "denied the opportunity to work" because she was, within the meaning of the provisions of the collective bargaining agreement, "available" but not given work and/or thus disciplined without "proper cause" were matters for the arbitrator to resolve.
B. The merits of Sutherland's claims are to be determined by arbitration
"[A]ll disputes as to the meaning, interpretation and application of any clause of the collective bargaining agreement, even those that prima facie appear to be without merit, are the subject of arbitration." (Posner v. Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 184, 14 Cal.Rptr. 297, 363 P.2d 313.) The trial court's role is "confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract." *217 (Id. at p. 175,14 Cal.Rptr. 297, 363 P.2d 313.) The arbitrator decides any arbitrable claim, "even if it appears to the court to be frivolous." (AT & T Technologies v. Communications Workers, supra, 475 U.S. at pp. 649-650, 106 S.Ct. 1415.)
"[T]he union's claim that the employer has violated the collective-bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator. `The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious.'" (AT & T Technologies v. Communications Workers, supra, 475 U.S. at p. 650, 106 S.Ct. 1415.)
It appears that the trial court may have improperly focused on the merits of Sutherland's claim. As the trial court remarked before denying the petition to compel arbitration, it "would not make any sense" for the collective bargaining agreement to require "the MTA to arbitrate the issue of an employee's ability to return to work if the employee has a pending workers' comp claim and an agreed medical examiner has stated that the employee needs modification, vocational rehabilitation or restriction." However, whether Sutherland was "available" (art. 6, § A of both Agreements) for work even with a job modification or restriction, which the Union argues would not affect her normal job requirements, is a matter for the arbitrator to determine.
Moreover, medical problems, as here, often are not static but subject to improvement. Therefore, even if Sutherland were under any analysis deemed not "available" for work at the time of the agreed medical examiner's report, it may well be argued before the arbitrator that she was denied the opportunity to work when she was thereafter fully recovered and "available" for work. Specifically, after Dr. Mandel's August 1999 agreed medical examiner's report, the significance and meaning of which the parties debate, Dr. Yogaratnam's August 2000 report found no evidence of any medical disability and deemed Sutherland capable of returning "to her regular work duties without restriction." Other medical evaluations and workers' compensation matters ensued, but the MTA did not return Sutherland to work until May 9, 2001. We, of course, express no opinion as to whether a claim for back pay during this hiatus in Sutherland's return to work, from August of 2000 to May of 2001, has any arbitrable merit.
The MTA erroneously urges that Sutherland cannot seek to arbitrate events that occurred after the request to arbitrate and thus cannot rely on facts after the initial report of Dr. Mandel, the agreed medical examiner. The MTA thus seeks to preclude any reliance on Dr. Yogaratnam's report in August of 2000 and the agreed medical examiner's subsequent report in November of 2000.
First, although the MTA urges that the agreed medical examiner's opinion is the only medical advice that is valid in a WCAB proceeding,[4] the proceeding here was an arbitration petition under the collective bargaining agreement and not a WCAB proceeding. Thus, Dr. Yogaratnam's *218 report regarding Sutherland's recovery is relevant. Second, nothing in the collective bargaining agreement precludes the arbitrator from considering subsequent events as a medical situation progresses. The untenable alternative would be to require Sutherland to have filed a grievance and then a petition to compel arbitration every time a new medical report was issued.
Accordingly, the merits of Sutherland's claims must be determined by the arbitrator.
C. The trial court properly denied the Union's motion to amend the petition to include a cause of action for breach of contract
After the trial court gave the parties its tentative ruling denying the Union's motion to compel arbitration, the Union sought to amend its petition to a complaint for breach of contract. The trial court stated that it was reviewing a special proceeding to compel arbitration (Code Civ. Proc, § 1281.2), ruled that it had no authority to add a breach of contract claim, and suggested that the Union file a separate civil complaint. The MTA has cited no authority, and we have found none, which creates any procedural bar to the trial court's broad discretion to permit the amendment of pleadings (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 938-939, 101 Cal.Rptr. 568, 496 P.2d 480) and thus to eliminate the multiplicity of lawsuits (Los Angeles Police Protective League v. City of Los Angeles (1985) 163 Cal.App.3d 1141, 1149, 209 Cal.Rptr. 890).
However, an amendment to allege a breach of contract here would have been inappropriate because the matter is covered by the broad terms of the collective bargaining agreements. As provided in Article 20, Section A of both the 1997 and 2000 Agreements, arbitration shall resolve any "grievance or dispute with respect to the interpretation or application of any terms of this Agreement." Since this is not a situation where the parties have agreed to arbitrate some issues and not others (see Parker v. Twentieth Century-Fox Film Corp. (1981) 118 Cal.App.3d 895, 906, 173 Cal.Rptr. 639), a contract cause of action is inappropriate.
IV. Attorney fees
The Union's motion to compel arbitration also sought reasonable attorney fees. The 2000 Agreement provided for attorney fees payable by the party that wrongfully refuses to arbitrate. The 1997 Agreement had no attorney fees provision. Therefore, the question is whether the 2000 Agreement, which became effective July 1, 2000, applies. The initial grievance was filed in December of 1999, but the MTA formally denied requests to arbitrate on February 22, 2001, and April 2, 2001. The present lawsuit was filed on April 10, 2001.
The MTA asserts that the provision for attorney fees in the 2000 Agreement is inapplicable because the grievance arose during the 1997 Agreement, which did not provide for attorney fees. On the other hand, the Union relies on the triggering language in the 2000 Agreement that provides for attorney fees to the prevailing party "[w]henever either party refuses arbitrate" and "a court action follows," all of which occurred during the 2000 Agreement. However, neither collective bargaining agreement specifies how to deal with any situation that spans more than one agreement, and neither collective bargaining agreement defines, for example, any cutoff dates in terms of either the filing of the grievance, the request to arbitrate, or the petition to compel arbitration.
We conclude that as to attorney fees, as well as any other matters possibly covered *219 by the 2000 Agreement, it is the task of the arbitrator to interpret and decide the interrelationship of the clauses in the two agreements. The broadly worded arbitration clause is identical in Article 20, Section A, of both agreements and, as previously noted, covers without any limitation any "grievance or dispute with respect to the interpretation or application of any terms" in the agreements.
Moreover, having the arbitrator interpret and decide the interrelationship of the two collective bargaining agreements is consistent with the fundamental nature of such agreements. "`"[A] collective bargaining agreement is not an ordinary contract" (John Wiley & Sons v. Livingston (1963)[(1964)] 376 U.S. 543, 550 [84 S.Ct. 909, 11 L.Ed.2d 898] ... [)] and is not governed by the common law concepts that control private contracts. (Carpenters 46 Northern Cal. Counties Conf. Bd. v. Valentine (1982) 131 Cal.App.3d 534 [182 Cal.Rptr. 500]....) "[It is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate." (Steelworkers v. Warrior & Gulf Co. (1959) [(1960)] 363 U.S. 574, 578 [80 S.Ct. 1347, 4 L.Ed.2d 1409]....)' [Citation.]" (Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal. App.4th 672, 684, 78 Cal.Rptr.2d 225.)
Because the parties to a collective bargaining agreement cannot anticipate every problem and situation that may arise, the role of the arbitrator is particularly significant. "[The labor arbitrator] does not merely provide an alternative means of resolving disputes, nor is he chosen simply for his expertise in a specific field or his ability to give definitive answers with greater efficiency and speed than the courts. [Citation.] Unlike the commercial contract, which is designed to be a comprehensive distillation of the parties' bargain, the collective bargaining agreement is a skeletal, interstitial document. [Citation.] The labor arbitrator is the person the parties designate to fill in the gaps; for the vast array of circumstances they have not considered or reduced to writing, the arbitrator will state the parties' bargain. He is `the parties' officially designated "reader" of the contract ... their joint alter ego for the purpose of striking whatever supplementary bargain is necessary' to handle matters omitted from the agreement." (Stead Motors v. Automotive Machinists Lodge 1173 (9th Cir.1989) 886 F.2d 1200, 1205 (en banc), cert. den. (1990) 495 U.S. 946, 110 S.Ct. 2205, 109 L.Ed.2d 531; see also United Broth, of Carpenters #1780 v. Desert Palace (9th Cir.1996) 94 F.3d 1308, 1311.)
Accordingly, it is the task of the arbitrator to interpret and decide the interrelationship of the two collective bargaining agreements and determine if the attorney fees provision in the 2000 Agreement is applicable.
DISPOSITION
The judgment denying the petition to compel arbitration is reversed, and the parties are ordered to arbitrate their dispute. The Union is entitled to costs on appeal.
We concur: DOI TODD and ASHMANN-GERST, JJ.
NOTES
[*] George, C.J., did not participate therein. Baxter, J., dissented.
[1] The collective bargaining agreement between the MTA and the Union, effective from July 1, 1997, to June 30, 2000 (the 1997 Agreement), and the subsequent agreement effective July 1, 2000 (the 2000 Agreement), both provide, in Article 6, Section A, as follows: "All employees covered by this Agreement, who are available and work their assignments, shall be guaranteed eight (8) hours per day, and forty (40) hours per week, except as provided elsewhere in this Agreement." Other sections of both agreements also indicate that the MTA may discipline an employee only "for proper cause."
[2] In both the 1997 and 2000 Agreements, Article 20, Section A, provides: "If a grievance or dispute with respect to the interpretation or application of any terms of this Agreement is not satisfactorily settled, the Union may demand in writing that it be submitted to arbitration ... and the [MTA] and the Union shall arbitrate such grievances or disputes."
In the 1997 Agreement, Article 20, Section B, provides: "Unless the parties otherwise agree in writing, the issues to be submitted to the [Arbitration] Board shall be limited to those set forth and defined in the decision by the [MTA]. The Board's authority shall be limited to the determination of the issue or issues thus set forth. ..." (Italics added.) However, in the 2000 Agreement, Article 20, Section B, provides as follows: "[Each party shall submit] a statement of the issue(s) to be arbitrated and the proposed remedy, if any.... In cases where the parties have not agreed on the issue(s), the neutral arbitrator will frame the issue to be decided. ..." (Italics added.)
[3] We note that the parties use the term "reinstatement," when referring to Sutherland's return to work. However, reinstatement more properly applies to a situation where the employee has been discharged (see Lab. Code, § 132a, subd. (1)), which is not the situation here.
[4] Labor Code section 4061, subdivision (n) provides, in pertinent part, that "reports offered by the treating physician or physicians who treated the employee for the injury and comprehensive medical evaluations prepared by a qualified medical evaluator ... shall be admissible." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263244/ | 27 F.Supp. 413 (1939)
TULLGREN
v.
JASPER et al.
No. 6408.
District Court, D. Maryland.
May 1, 1939.
*414 Edgar T. Fell, Stanley E. Hartman, Fell & Hartman, and Harry J. Dingle, all of Baltimore, Md., for plaintiff.
Clarence W. Miles, Seymour O'Brien, and Miles & O'Brien, all of Baltimore, Md., for defendant Jasper.
Walter L. Clark, Roszel C. Thomsen, and Robert E. Coughlan, Jr., all of Baltimore, Md., for defendant Hoffmeister and Maryland Casualty Co., third-party defendant.
Harry O. Levin and C. Morton Goldstein, both of Baltimore, Md., for defendant Association of Independent Taxi Operators, Inc., third-party plaintiff.
CHESNUT, District Judge.
The motion before the court presents a question of third-party practice with respect to making an automobile casualty insurer a third-party defendant. It arises in the following way:
It is alleged in the complaint that the plaintiff was a passenger in a taxicab driven by (a) the defendant, Eli Goldstein, and (b) owned by the defendant, Charles Jasper, and (c) being operated under the control and for the use and benefit of the defendant, The Association of Independent Taxi Operators, Inc., which was in collision with an automobile truck operated by (x) the defendant, Otis D. Wood, and owned by (y) the defendant, Edward A. Hoffmeister of "C"; in consequence of which the plaintiff was injured due to alleged negligence of the defendant drivers of the two vehicles who were *415 acting at the time as servants and agents of the respective owners.
In the course of the pleadings the defendant, The Association of Independent Taxi Operators, Inc., has filed a third-party complaint against the Maryland Casualty Company in which the latter is described as follows:
"a Maryland Corporation engaged in the business of insuring against the liability imposed by law arising out of the ownership, maintenance and use of motor vehicles and before the happening of the accident, had issued to Edward A. Hoffmeister of "C" its policy of insurance covering the operation of the automobile involved in the accident owned by said Edward A. Hoffmeister of "C", which policy was in effect on September 28, 1937, when the collision occurred and which automobile caused or contributed to the injuries claimed to have been suffered by the plaintiff; that under the terms of said policy, said Edward A. Hoffmeister of "C", may bring an action against the Maryland Casualty Company in the event the said Maryland Casualty Company fails to pay any judgment rendered against him; and in the event of a joint judgment against Edward A. Hoffmeister of "C", Charles Jasper and/or The Association of Independent Taxi Operators, Incorporated, said Edward A. Hoffmeister of "C", and/or the Maryland Casualty Company are liable for the payment of a proportionate amount of any joint judgment recovered."
The Maryland Casualty Company, so impleaded, has moved to dismiss the third-party complaint against it for the reasons (1) that said complaint fails to state a claim upon which relief can be granted; (2) that it is not a proper party and cannot be brought in under Rule 14, 28 U.S. C.A. following section 723c; (3) the court is without jurisdiction in that the defendants, Hoffmeister, Wood and The Association of Independent Taxi Operators, Inc., and the Maryland Casualty Company are all citizens of the State of Maryland and there is therefore no diversity of citizenship between them.
Rule 14 provides in part as follows:
"When Defendant May Bring in Third Party. Before the service of his answer a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against him. [Italics supplied] * * * The third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff, as well as of his own to the plaintiff or to the third-party plaintiff. * * *"
It will be noted that the Maryland Casualty Company (the third-party defendant in this instance) has no relationship either ex contractu or ex delicto with the defendant, The Association of Independent Taxi Operators, Inc. The Maryland Casualty Company is alleged to be the insurer not of The Association of Independent Taxi Operators, Inc., but of E. A. Hoffmeister of "C", and the latter has not sought to implead the Maryland Casualty Company as its insurer. A person not made a party to the action by the plaintiff may be impleaded by a defendant only where the former "is or may be" liable to the said defendant or to the plaintiff. It seems reasonably clear that the Maryland Casualty Company, sought to be impleaded by the defendant, The Association of Independent Taxi Operators, Inc., is not liable to the latter; and therefore the Maryland Casualty Company may be properly impleaded only, if at all, on the theory that it "is or may be" liable to the plaintiff.
The possible liability of the Maryland Casualty Company to the plaintiff is alleged in the cross-complaint and is evidently based on the Maryland statutory provision in the Code, Art. 48A, § 54, being an Act of Assembly of 1924, Ch. 204, which enacts
"that if an execution upon any final judgment against the assured is returned unsatisfied, in whole or in part, in an action brought by the injured or by another person claiming by, through, or under the injured, then an action may be maintained by the injured, or by such other person against the company under the terms of the policy for the amount of any judgment recovered in such action, not exceeding the amount of the policy, and every such policy shall be construed to so provide, anything in such policy to the contrary notwithstanding."
The cross-complaint also alleged that in the event of a joint judgment against the defendant Hoffmeister as owner of the truck, and one or more of the defendants responsible for the operation of the taxicab, then "said Edward A. Hoffmeister of "C", *416 and/or the Maryland Casualty Company are liable for the payment of a proportionate amount of any joint judgment recovered." This allegation is evidently based on the Maryland Act of 1927, Ch. 539, now codified in the 1935 Supp. to the Maryland Code as Article 50, § 12A, providing for contribution between joint feasors where there is a joint judgment against them and payment made by one in excess of his pro rata share.
Several objections are made to the inclusion of the Maryland Casualty Company as a third-party defendant in the case. One ground is that, in jury trials, it is prejudicial to the defendant to permit the jury to have information that the defendant is insured. International Co. v. Clark, 147 Md. 34, 42, 127 A. 647; Stewart & Co. v. Newby, 4 Cir., 266 F. 287, 295. While there have been many judicial decisions to this effect, beginning many years ago when automobile insurance was much less customary, it may be doubted whether now, in view of the fact that automobile liability insurance is so general, the rule should be so rigidly applied; at least where the practice, as in the federal courts, permits definite legal instructions to the jury with respect to the legal effect of insurance in these negligence cases.
A more persuasive argument for the dismissal of the insurer is that it is not directly but only secondarily liable to the plaintiff, in the event of the non-payment of a judgment against the defendant insured. But even this consideration, I think, is not conclusive on the point because there may be cases in which a liability insurer could properly be brought in as a third-party defendant by the insured. In the ordinary case this is not at all likely to occur because, as is well known, the insurer, where there is no question of its liability under the policy to the insured, defends the suit for the insured by the insurer's counsel; that is to say, the insurer is in control of the litigation and its counsel would ordinarily decline to make the insurer a party. But in case the insurer denies liability and refuses to defend the action in accordance with its policy, I see no logical reason to deny to the insured, who is the defendant in a suit, the right to bring in the insurer as a third-party defendant, where under the terms of its policy it will be liable over to the insured defendant and where the judgment against the defendant will establish the liability of the insurer.[1] Of course in such case the defendant insurer is entitled to a hearing and trial of any defenses that it may set up against its liability and it is probable that the court would order a separate trial of its controversy with its insured under Rule 42(b).[2] The primary object of Rule 14 is to avoid circuity of action and thus to finally dispose in one litigation of an entire subject matter arising from a particular set of facts.
Another objection made by the Maryland Casualty Company is of very great general importance. It says that the court has no general federal jurisdiction of the controversy between it and the Association of Independent Taxi Operators, Inc., because both are Maryland corporations, and there is therefore no diversity of citizenship between them. The point is of great importance in the application of Rule 14. We must steadily bear in mind in applying the rules that they relate to procedural matters only and do not affect substantive rights; and Rule 82 expressly provides:
"These rules shall not be construed to extend or limit the jurisdiction of the district courts of the United States or the venue of actions therein."
The objection here is not based on improper venue, but on the alleged absence of diverse citizenship. It is obvious that if the objection is good the scope of application of the rule will be greatly restricted as to third-party practice, where the general *417 jurisdiction of the court is based alone on diverse citizenship. Under this class of federal jurisdiction the more usual type of case is where a non-resident plaintiff sues a resident defendant in the district court. If the defendant has a right of action over against a third-party as indemnitor or joint tort feasor, it is likely that the third-party will be a citizen of the same State as that of the defendant. And in cases where the third-party may be a citizen of another State, it is not often the case that he can effectively be served with process under the federal statutes.
The answer to the question seems to depend upon the consideration whether the third-party practice in a particular case is an ancillary proceeding incidental to the main suit, or whether it is to be more properly regarded as a separate and independent new suit. If the former view prevails, then the jurisdiction is not wanting because the ancillary jurisdiction of the federal courts is well established as an essential attribute of their jurisdiction. See Compton v. Jesup, 6 Cir., 68 F. 263, by Taft when Circuit Judge; Alexander v. Hillman, 296 U.S. 222, 239, 56 S.Ct. 204, 80 L.Ed. 192; Rose, Federal Jurisdiction and Procedure, Ch. 14. It is true that the ancillary jurisdiction of the federal courts in the sense that the term is here used is most frequently based on the possession by the court of a res, and the necessity of doing complete justice in its final disposition among all parties interested; or in supplementary proceedings necessary to make effective the orders, judgments and decrees of the court. The type of suit we are here dealing with is, of course, not a suit in rem but in personam; but it is by no means certain that the nature of ancillary jurisdiction must be limited to a case where the court has possession of a res, or a supplementary proceeding to enforce a valid judgment. We are here dealing with procedural matters only, and there is very substantial ground for the view that as the general jurisdiction of the court properly attached under constitutional and statutory provisions to the suit between the original plaintiff and the original defendant, it should proceed to do final and complete justice as between all parties affected by or liable on account of the same set of facts.
There are federal decisions rendered prior to the promulgation of the new rules which have some tendency to support the view that jurisdiction does not exist where there is not diversity of citizenship between the original defendant and the third-party defendant. These cases dealt with third-party practice arising under various state statutes applied by the federal courts under the Conformity statute, 28 U.S.C.A. § 724, now superseded by the new rules. It will be found, however, on examination of the cases that most, if not all, of them dealt with situations where the cross-complaint of the original defendant against the third-party defendant injected a new and distinctly different cause of action than that involved in the main suit between the plaintiff and the original defendant. See Galveston, etc., Ry. Co. v. Hall, 5 Cir., 70 F. 2d 608; Osthaus v. Button, 3 Cir., 70 F.2d 392; Franklin v. Meredith Co., 2 Cir., 64 F.2d 109, 111; Wilson v. United American Lines, D.C., 21 F.2d 872; Sperry v. Keeler Transp. Line, D.C., 28 F.2d 897. On the other hand the only decisions so far noted under the new rules have taken the view that in a case such as the present, the third-party practice should be considered ancillary to the main suit and therefore not open to the general jurisdictional objection. Judge McClintic in the Southern District of West Virginia so held in the case of Joe Crum v. Appalachian Elec. Power Co. et al., 27 F.Supp. 138; and a similar decision was made by Judge Schoonmaker, in the Western District of Pennsylvania, March 23, 1939, in the case of Bossard v. McGwinn, 27 F.Supp. 412. In the former case Judge McClintic points out that
"On examination of official form 22, it seems to me that the Committee (that formulating the rules) and the Supreme Court adopted this view, since the form for a third-party complaint, unlike the forms for original complaints, omits any allegation of jurisdiction."[3]
*418 It is to be observed that the alleged absence of general jurisdiction in this situation stands on a different basis from that of absence of venue jurisdiction. The former is dependent upon a judicial determination as to whether the third-party practice is ancillary to the main suit; while the latter depends directly upon the federal statutes as to venue, which in most cases provide that no defendant can be sued in a district of which he is not an inhabitant. This is a personal privilege which may be waived, but when insisted upon is good, even though the defendant may happen to be present and served with process in the district where the suit is pending, except of course as provided by statute in the case where the jurisdiction of the court is based only on diverse citizenship. See King v. Shepherd, D.C., 26 F.Supp. 357. It is however, not necessary to decide this important question in this particular case, because I have reached the conclusion on other grounds, that the motion to dismiss the Maryland Casualty Company must be granted.
As already pointed out, the Maryland Casualty Company is here sought to be impleaded not by the plaintiff nor by any defendant which has a direct relationship to it; but by an original defendant with which it has no relationship whatever. I have not noted in any of the discussions under Rule 14 with regard to third-party practice any suggestion even that an insurer of one joint defendant to an original action could be impleaded by another joint defendant who has no interest under the insurance policy. On the contrary the wording of the rule would seem impliedly if not expressly to exclude the procedure here attempted. The rule provides:
"The third-party defendant may assert any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff, as well as of his own to the plaintiff or to the third-party plaintiff."
This seems to imply some direct relationship either ex delicto or ex contractu between the original defendant and the third-party defendant. But such a relationship does not appear to exist in this case. While it is true the Maryland Casualty Company may hereafter become liable to the plaintiff, it is not apparent that the plaintiff could itself have properly joined the Maryland Casualty Company as an original defendant because its liability, if any, to the plaintiff arises only after judgment obtained by the plaintiff against the defendant which remains unsatisfied. Nor does the point as to possible contribution between the original defendants relied on by the third-party plaintiff in this case justify the impleading of the Maryland Casualty Company as a third-party defendant. It is well known that insurance is a personal contract. If there should be a joint judgment in this case against the Association of Independent Taxi Operators, Inc., and Hoffmeister, there would be the right of contribution existing between them under the Maryland statutes; and if Hoffmeister paid less than his share of the judgment, the Association of Independent Taxi Operators, Inc., on paying more than its share, could have the judgment entered proportionately to its use against Hoffmeister. But the Maryland statutes do not go further than this; and do not give any right to the Association of Independent Taxi Operators, Inc., against the Maryland Casualty Company as Hoffmeister's insurer. The liability of the insurer as extended by the statute is limited to the payment of the amount due under the policy to the party injured by the negligence of the insured or to one claiming under him. And it is not alleged in the pleading that the policy itself extends the liability of the insurer in favor of a party not named by the policy, who may be a joint tort feasor with the insured. And finally it may be observed that leave to bring in a third-party defendant is not mandatory but in the sound discretion of the court. The object of the rule in all cases is to accomplish ultimate justice for all concerned with economy in litigation but without prejudice to the rights of another. In my opinion no useful purpose would be subserved by continuing the Maryland Casualty Company as a party in this case.
For these reasons the motion to dismiss the Maryland Casualty Company as a third-party defendant in this case is hereby granted.
NOTES
[1] The terms and conditions of the particular policy or any relevant statute may importantly affect the question. See Appleman Automobile Liability Ins. pp. 304 et seq. In this case the Maryland statute conditions the liability of the insurer to pay, upon a prior unsatisfied execution on a final judgment against the insured; and counsel for the insurer here states the policy contains the socalled "no action" clause, that is, no suit against the company until after final judgment against or agreement of the insured as to liability.
[2] This question as to whether the insurer could be brought in as a third-party defendant was much discussed in the Cleveland Institute on the Rules. See pages 250 et seq. The only reported case that I have noted where an insurer was brought in as a third-party defendant is the case of King v. Shepherd, D. C.W.D.Ark., 26 F.Supp. 357; but was there dismissed on account of improper venue.
[3] See also Moore's Federal Practice, under the new federal rules, Vol. 1, p. 782; Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure (1936) 45 Yale L.J. 393, 417 et seq.; and the discussion of the subject at the Washington and New York Institute on Rules, pp. 60 and 340, 341. From the latter reference it appears that the chairman of the Supreme Court Advisory Comm. former Attorney General Mitchell, was of the opinion that the jurisdiction would not exist where there was no diversity of citizenship between the original defendant and the impleaded third-party defendant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322700/ | 676 S.E.2d 386 (2009)
SIMON
v.
GRADY HEALTH SYSTEM et al.
No. A08A1845.
Court of Appeals of Georgia.
March 13, 2009.
Reconsideration Denied March 27, 2009.
Steven D. Simon, pro se.
James C. West III, for appellees.
PHIPPS, Judge.
Steven Simon brought this action against Grady Health System and others (collectively referred to as Grady). Simon in part complains that Grady failed to properly provide him with medical treatment after he was transported to the detention center at Grady instead of the city jail following his arrest. Additionally, Simon charges Grady with battery, kidnapping, and false imprisonment for performing treatment without his consent.
By order entered in 2004, the trial court granted Grady's motion to dismiss Simon's *387 complaint insofar as it charged Grady with medical malpractice, due to Simon's failure to attach an expert affidavit to the complaint as required by OCGA § 9-11-9.1. By order entered in 2005, the trial court granted Grady's motion for summary judgment as to the remainder of Simon's complaint. In the 2005 order, the court found it undisputed that upon his admission to Grady, Simon was diagnosed with a serious and life threatening condition requiring emergency treatment; and that Grady doctors, after determining that Simon was suffering from a mental impairment rendering him incapable of making rational decisions regarding his health, properly executed the appropriate certification to provide emergency treatment to him. Accordingly, the court determined that Simon had impliedly consented to his medical treatment under OCGA § 31-9-3 and that, under OCGA § 37-3-163(e), Grady is immune from civil or criminal liability.
This is Simon's pro se appeal of the 2005 order. Appellate courts are for the correction of errors of law made by trial courts.[1] From Simon's appellate brief, we discern essentially only one appellate claim of trial error, i.e., that the trial court erred in awarding summary judgment to Grady because its certification that he appeared mentally ill and in need of involuntary emergency medical treatment was invalid and defective. The record, however, shows that a certification complying with OCGA §§ 37-3-41(a) and 37-3-163(e) was properly executed. Based on our review of the record, we therefore conclude that the trial court did not err in its grant of Grady's motion for summary judgment.[2]
Judgment affirmed.
JOHNSON, P.J., and BARNES, J., concur.
NOTES
[1] Grant v. State, 289 Ga.App. 230, 236(5), 656 S.E.2d 873 (2008).
[2] See generally Young v. Faulkner, 251 Ga.App. 847, 848, 555 S.E.2d 221 (2001). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322713/ | 676 S.E.2d 229 (2009)
STEWART et al.
v.
TRICORD, LLC et al.
Charlie Mountain Water, LLC
v.
Stewart et al.
Nos. A08A1682, A08A2281.
Court of Appeals of Georgia.
February 19, 2009.
Reconsideration Denied March 23, 2009.
*231 Dugald Stewart, pro se.
Raymond Giornelli, pro se.
Bruce Adams, pro se.
Little & Crumly, Jonathan D. Crumly, Atlanta, for appellees.
BARNES, Judge.
These appeals involve a long-running rancorous dispute between property owners and the now-former owners of the system supplying water to those properties. In Case No. A08A1682, Dugald Stewart, Bruce Adams, and Raymond Giornelli appeal the trial court's decision not to award them attorney fees. In Case No. A08A2281, Charlie Mountain Water, LLC, appeals the trial court's order finding it in contempt and ordering it to pay a fine of $14,600. We affirm the trial court's denial of attorney fees and finding of contempt, but reverse the imposition of the fine.
Stewart, Adams, and Giornelli ("plaintiffs") sued Charlie Mountain Water ("CMW") and related entities seeking both a declaratory judgment that they did not have to sign a service agreement to obtain water and a temporary order restraining CMW from shutting off their water, and alleging fraud. The defendants denied liability, and eventually the trial court appointed a special master to hear the issues. At a hearing before the special master on June 21, 2006, the parties reached a written agreement, and the trial court signed a consent order on July 27, 2006, adopting the terms of the agreement. The order was filed on September 1, 2006.
On September 25, 2006, the plaintiffs filed a motion for contempt, asserting that the defendants had failed to abide by the terms of the agreement and seeking attorney fees for the contempt action. The plaintiffs contended *232 that CMW had improperly amended its rules and regulations, refused to accept payment, would not participate in dispute resolution, and disconnected their water supply. On October 4, 2006, the plaintiffs filed a new civil action titled "Petition for Temporary Restraining Order/Injunctive Relief and Petition for Contempt Filed in the Alternative," raising the same contempt grounds and seeking a temporary restraining order directing CMW to reconnect their water and enjoining them from disconnecting it again.
On October 16, 2006, the trial court issued an order in the second civil action directing CMW to turn on the water for each plaintiff, and directing that the fees plaintiffs had paid into the court registry be paid to CMW, "subject to the rights of the plaintiffs to challenge the reasonableness of the restated rules and regulations ... as provided by the Court's order" signed on July 27 and filed on September 1, 2006. CMW filed a cross-motion for contempt on October 27, 2006 in the first civil action and sought attorney fees under OCGA § 9-15-14, arguing that the plaintiffs misrepresented facts in their contempt motions and otherwise breached the agreement.
The two civil actions were consolidated, and on January 9, 2007, the trial court found CMW to be in contempt of the consent order by disconnecting the plaintiffs' water and by failing to participate in dispute resolution while attempting to change the system's rules and regulations. Although the water had been reconnected, the trial court ordered CMW to pay a $250 fine to the clerk of court for disconnecting it in the first place and ordering it to pay $100 per day beginning January 12, 2007, for every day it failed to comply with the dispute resolution procedure set out in the consent order.
On January 15, 2007, CMW appealed the trial court's order of contempt, and the trial court granted the company's application for supersedeas on January 22, 2007. This court docketed the appeal on May 18, 2007, then on July 18, 2007 we granted CMW's motion to withdraw the appeal. Upon remittitur, CMW moved for a protective order relieving it from complying with the trial court's January 9, 2007 contempt order and from participating in upcoming court-ordered mediation, first because the trial court granted supersedeas during the appeal and second because it sold the water system on July 27, 2007. CMW noted that it had "complied with its duty to engage in an informal dispute resolution conference with the plaintiffs as required by the Contempt Order" by conducting a meeting on June 1, 2007, before it withdrew its appeal.
The trial court stayed the mediation and the plaintiffs moved for a hearing on their motion to hold CMW in contempt and award attorney fees. The trial court held a hearing on February 7, 2008, and issued an order on February 28, 2008, noting that it had previously found CMW in contempt but that CMW had failed to comply with its obligation to engage in an informal settlement conference until June 1, 2007. The trial court held that, because the company did not engage in dispute resolution from January 12, 2007 until June 1, 2007, it owed $14,600, but because it no longer held an interest in the system, it was relieved from further obligations under the consent order. It also denied both parties' requests for attorney fees.
1. In Case No. A08A1682, the plaintiffs, appearing pro se, argue that the trial court should have awarded them attorney fees, having found CMW in contempt twice. They argue that the trial court abused its discretion, because under OCGA § 9-15-14(b), CMW unnecessarily expanded the proceedings, and under OCGA § 13-6-11, CMW acted in bad faith, was stubbornly litigious, and caused them unnecessary trouble and expense.
"No authority exists to award attorney fees merely because the action is for contempt," although fees may be awarded in a civil contempt action pursuant to some express authority. Norred v. Moore, 263 Ga.App. 516, 518(2)(a), 588 S.E.2d 301 (2003). In this case, while the plaintiffs argue that OCGA §§ 9-15-14 and 13-6-11 provide authority for an attorney fee award, neither their motion nor their petition for contempt filed in the trial court cited either statute, but only sought fees pursuant to the contempt.
*233 A trial court may award fees on its own motion under OCGA § 9-15-14(b) if it finds that a party brought or defended an action lacking substantial justification, which was interposed for delay or harassment, or which unnecessarily expanded the proceeding. "A prevailing party is not perforce entitled to an award of attorney fees under this statutory subsection" and a trial court need not make findings of fact in denying an award. (Citation and punctuation omitted.) Bellah v. Peterson, 259 Ga.App. 182(1), (2), 576 S.E.2d 585 (2003) (considering denial of award under OCGA § 9-15-14(a)). An award under OCGA § 9-15-14(b) "is entirely within the discretion of the trial court after considering all the facts and law." (Citation and punctuation omitted.) MARTA v. Doe, 292 Ga.App. 532, 540(5), 664 S.E.2d 893 (2008); Doe v. HGI Realty, 254 Ga.App. 181, 183, 561 S.E.2d 450 (2002).
In this case, a review of the record reveals that the history of this litigation to date has been lengthy and acrimonious, generating at least three complaints. Each side has accused the other of numerous bad acts, and the hostile tone continues in both sides' appellate briefs. The trial court considered numerous motions and pleadings and held more than three hearings, considering and rejecting both sides' requests for attorney fees in the final hearing. In light of the extensive record in both appeals, which includes a total of 14 volumes, we do not find that the trial court abused its discretion in failing to award fees on its own motion. See Harrison v. CGU Ins. Co., 269 Ga.App. 549, 555, 604 S.E.2d 615 (2004).
2. In Case No. A08A2281, CMW first contends that the trial court erred "by confirming in the Final Order its finding that CMW was in contempt of the Consent Order." In its January 9, 2007 order, the trial court found that CMW violated the consent order by disconnecting service "and by failing to participate in the Dispute Resolution procedure during its attempt to change the Rules and Regulations," which included its attempt to raise the annual water fee. The court ordered CMW to pay a fine of $250 for turning off the water and $100 per day for each day it did not comply with the dispute resolution procedure. On February 28, 2008, the trial court found that CMW did not participate in dispute resolution until June 1, 2007. It concluded that CMW had failed to purge its previous contempt and ordered the company to pay a fine as provided in the January 2007 order.
CMW argues that in the January 2007 contempt order, the trial court misconstrued the terms of the consent order, which incorporated by reference the terms of a previous agreement. Basically, CMW argues that it did not violate the terms of the consent order because it was entitled to terminate service if its customers did not pay their bills within 30 days. It also argues that it attempted to engage in dispute resolution as required by the consent order, contrary to the trial court's findings.
(a) The standard of review from a finding of contempt varies depending on whether the punishment for the contempt is civil or criminal. A criminal contempt citation imposes unconditional punishment for prior contempt, "to preserve the court's authority and to punish disobedience of its orders." Hopkins v. Hopkins, 244 Ga. 66, 67(1), 257 S.E.2d 900 (1979). We will affirm a criminal contempt conviction if, 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. In re Waitz, 255 Ga.App. 841, 842, 567 S.E.2d 87 (2002). Civil contempt, on the other hand, is conditional punishment intended to coerce the contemnor to comply with the court order. Hopkins v. Hopkins, supra, 244 Ga. at 67, 257 S.E.2d 900. In civil contempt appeals, "[i]f there is any evidence from which the trial court could have concluded that its order had been violated, this court is without power to disturb the judgment." (Punctuation omitted.) Parland v. Millennium Constr. Svcs., 276 Ga.App. 590, 591(1), 623 S.E.2d 670 (2005).
In this case, the $250 fine for cutting off the plaintiffs' water supply was criminal, as it punished CMW for its past actions. The daily fine for failing to participate in dispute resolution was civil, as it was designed to coerce CMW into attending a meeting.
*234 (b) CMW argues that the trial court erred in assessing a fine of $250 for cutting off the plaintiffs' water, contending that it had the authority to do so when the plaintiffs did not pay their water bill. The previous homeowners association agreement incorporated by reference into the consent order gave CMW the right to shut off the water if anyone did not pay the annual fee or failed to abide by the rules and regulations. But the consent order also specifically provides that customers will be given 30 days to review any changes to the rules and regulations, "including changes to rate schedules, fees and usage rules," and comment on or challenge the changes through a dispute resolution process. The order provides that after 30 days "the bills will be sent along with the Rules and Regulations and the customers will agree to be bound thereby" unless they institute a formal challenge. It makes no sense to allow a specific means for challenging rate changes in the consent order but still apply a previous agreement permitting CMW to shut off the water if a customer does not abide by the rules. And regardless of whether CMW did or did not actually change the rules, a review of the record establishes that the plaintiffs attempted to pay several times but CMW rejected their checks for varying reasons. Having reviewed the record in its entirety, we conclude that a rational trier of fact could have found the essential elements of the criminal contempt beyond a reasonable doubt. The trial court did not err in assessing this fine against CMW.
(c) Regarding the fine of $100 per day, CMW argues that the trial court's grant of supersedeas during the company's appeal protected it from accruing the fine for not meeting with the plaintiffs. The trial court's supersedeas order provided, "Defendant Charlie Mountain Water, LLC, having filed an application for supersedeas of [the contempt] order and having fully complied with all provisions as to appeal, SUPERSEDEAS is hereby GRANTED."
Under OCGA § 15-6-9, the superior court is authorized to grant supersedeas, which "deprives the trial court of jurisdiction to take further proceedings towards the enforcement of the judgment superseded." Tyree v. Jackson, 226 Ga. 642, 177 S.E.2d 159 (1970). It "suspends all further proceedings in the suit in which the judgment superseded is rendered.... Under this rule, the supersedeas, during its pendency, prevents any steps to enforce or carry into effect the judgment." (Citation and punctuation omitted.) Abney v. Harris, 208 Ga. 184, 187(4), 65 S.E.2d 905 (1951). While the appeal of the previous contempt order was pending, "[t]he trial court was without jurisdiction to consider further the question of the defendant's contempt." Lake v. Hamilton Bank of Dalton, 150 Ga.App. 123, 125, 257 S.E.2d 31 (1979); accord Blake v. Spears, 254 Ga.App. 21, 26(6), 561 S.E.2d 173 (2002).
Once the appeal ends, the supersedeas ends. By that time, however, CMW had taken the action the trial court wanted it to, which was to meet with the plaintiffs. Because the supersedeas stayed the application of the contempt order during the appeal, the trial court erred in assessing a $14,600 fine against CMW.
(d) CMW's argument that the amount fined was incorrect is rendered moot by the preceding holding.
Judgment affirmed in part and reversed in part.
JOHNSON, P.J., and PHIPPS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322701/ | 676 S.E.2d 456 (2009)
ETOWAH ENVIRONMENTAL GROUP et al.
v.
ADVANCED DISPOSAL SERVICES, INC. et al.
No. A08A1660.
Court of Appeals of Georgia.
March 27, 2009.
*457 McGuire Woods, David John Forestner, H. Wayne Phears, Atlanta, for appellants.
Balch & Bingham, Michael J. Bowers, T. Joshua R. Archer, Atlanta, Malissa Anne Kaufold-Wiggins, Hitch & Webb, Scott Evans Hitch, Roswell, for appellees.
BARNES, Judge.
Etowah Environmental Group, Glennon C. Grogan, James H. Grogan, David G. Grogan, Ginger Grogan Power, Christopher N. Grogan, (the last three individually and as trustee of the irrevocable trust of James H. Grogan for the benefit of themselves) (hereinafter "Etowah") appeal from the trial court's order compelling arbitration pursuant to a contract between Etowah and Advanced Disposal Services, Incorporated, Federal Road, LLC, Gerald Allen, Michael Cosman, Charles Gray, and Walter Hall (hereinafter "ADS"). The trial court determined that all of Etowah's claims were subject to arbitration, and Etowah contends that the trial court erroneously considered the intent of the parties instead of the language of the contract, and also ignored the actual terms of the operating agreement. Following our review, we affirm.
"[T]he standard of review from the grant of a motion to compel arbitration is whether the trial court was correct as a matter of law. In addition, the construction of a contract is a question of law for the court that is subject to de novo review." (Citations omitted.) Moore & Moore Plumbing v. Tri-South Contractors, 256 Ga.App. 58, 60-61(1), 567 S.E.2d 697 (2002).
The record shows that in August 2001, ADS and Etowah formed the company Federal Road to operate solid waste disposal facilities, including the Eagle Point Landfill in Forsyth County. Under the Operating Agreement, ADS owned a 75 percent interest in Federal Road, and Etowah owned the remaining 25 percent interest. The Agreement specified that Federal Road might eventually merge into ADS upon ADS's election or by majority vote. In the event of a merger, Etowah's and ADS's shares in Federal Road would be exchanged for units in ADS of an equivalent value. The Agreement also contained the following clause related to the appraisal process:
10.9 Unit Exchange
. . .
(b) (ii) If the Unit Value is not determined pursuant to paragraph (i) above then the Unit Value of Units in the LLC [Federal Road] and the Unit Value of Units in the Holding Company [ADS] shall be determined by the appraiser selected in accordance with this paragraph 10.9(b). The Members of the LLC [Federal Road] and *458 the Holding Company [ADS] shall each select an appraiser and these two appraisers shall select a third appraiser (the "Appraiser").. . . The third appraiser would then calculate the value of each company's shares in Federal Road and the value of each share of ADS.
. . .
In June 2006, ADS informed Etowah that it was merging Federal Road into ADS, and, on June 30, 2006, adopted a Plan of Merger which incorporated certain provisions of the Agreement, including the manner in which the shares would be valued. The Merger Plan was signed by the presidents of ADS and Federal Road. It provided that, regarding the valuation of the Federal Road units,
ADS and Etowah shall each select an appraiser within thirty (30) days of the date hereof and these two appraisers shall select a third appraiser ("the Appraiser") within ten (10) days. If Etowah fails or refuses to select an appraiser within the thirty (30) day period described above, the ADS shall select both appraisers who shall then select the Appraiser within the ten (10) day period described above.
The merger was completed in September 2006, and documents to that effect were filed with the Delaware Secretary of State. The valuation process commenced shortly thereafter, and Federal Road and ADS each selected an appraiser, who together selected a third appraiser. The appraisal was completed in May 2007, despite Etowah's objections to the appraisal process. It asserted that, as a minority shareholder in ADS, it was entitled to more information, and that, pursuant to the Merger Agreement, it should be allowed to select one of the appraisers. In response to that objection, ADS submitted that the Merger Plan "was erroneous" in stating that Etowah could choose an appraiser. It said, "This statement is contrary to the Operating Agreement," and "to the extent that the Merger [Plan] is inconsistent with the Operating Agreement, ADS has followed the Operating Agreement."
Following the valuation, Etowah filed a complaint alleging that ADS improperly valued its interest in Federal Road and ADS under the Operating Agreement, claiming conversion, fraud, breach of contract, civil conspiracy, breach of fiduciary duty, violation of Georgia securities laws, and intentional infliction of emotional distress. ADS filed a motion to compel arbitration and to dismiss Etowah's complaint, and Etowah filed a motion for stay of arbitration. Etowah amended its complaint alleging virtually the same claims, adding that ADS breached the Merger Plan, rather than the Operating Agreement and asserting its other claims as a violation of the Merger Plan.
The trial court granted ADS's motion to compel arbitration and denied Etowah's motion for a stay. The trial court found, in relevant part, that "all of [Etowah's] claims touch on the valid arbitration agreement between the parties and could not have been brought in the absence of the Operating Agreement." Thus, the court concluded, Etowah's claims must be arbitrated.
The Operating Agreement contained the following provision regarding arbitration:
All disputes arising hereunder shall be settled by arbitration. The arbitrators shall be selected and the arbitration shall be conducted pursuant to the rules of the American Arbitration Association. The determination rendered by the arbitrators shall be conclusive and binding upon the parties hereto; provided, however, that any such determination shall be accompanied by a written opinion of the arbitrators giving the reasons for the determination. This provision for arbitration shall be specifically enforceable by the parties and the decision of the arbitrators in accordance herewith shall be final and binding and there shall be no right of appeal therefrom.
And the Merger Plan provided:
10.10 Consent to Merger. [E]ach member hereby irrevocably consents to the merger or consolidation by any legal means of the LLC with the Holding Company (or its successors) upon (i) the election of the Holding Company (or its successors); and (ii) the adoption of a plan of merger or other consolidation by Majority Vote. . . .
1. Etowah first claims that the trial court erred when it considered the intent of the parties instead of the restrictive language *459 of the Operating Agreement and compelled arbitration of Etowah's claims related to the merger. The essential issue on appeal is whether the language in the arbitration clause of the Operating Agreement that "[a]ll disputes arising hereunder shall be settled by arbitration," encompasses all disputes involving the merger of Federal Road, including Etowah's so-called "statutory and common law claims."
The Operating Agreement provides that Delaware law controls. Delaware courts have held that when determining arbitrability, courts are limited to ascertaining whether the dispute is one that falls within the scope of the arbitration clause of the contract. SBC Interactive v. Corporate Media Partners, 714 A.2d 758, 761 (Del.1998). In SBC Interactive, the Delaware Supreme Court noted that courts may not consider any merits of the claim sought to be arbitrated and also explained that any doubts as to arbitrability are to be resolved in favor of arbitration. Id.; Parfi Holding AB v. Mirror Image Internet, 817 A.2d 149, 155-156 (Del. 2002); see also Krut v. Whitecap Housing Group, 268 Ga.App. 436, 442(2)(c), 602 S.E.2d 201 (2004). The court is faced with two issues when arbitrability is contested: (1) it must determine whether an arbitration clause is broad or narrow in scope, and (2) the court must apply the arbitration provision to the claim to determine whether the claim falls within its ambit. Parfi, supra at 155.
Moreover, "[w]hen deciding whether the parties agreed to arbitrate a certain matter . . . courts generally should apply ordinary state-law principles that govern the formation of contracts." McLaughlin v. McCann, 942 A.2d 616, 627 (Del.Ch.2008).
In interpreting contract language, clear and unambiguous terms are interpreted according to their ordinary and usual meaning. Absent some ambiguity, Delaware courts will not distort or twist contract language under the guise of construing it.
(Citations omitted.) Allied Capital Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1030 (Del.Ch.2006).
Here, the issue that ADS seeks to arbitrate is essentially the valuation of shares involved in the merger with Federal Road. In its amended complaint, Etowah removed all references to the Operating Agreement and alleged conversion because ADS "appropriated Etowah's ownership interest in Federal Road" and "exercised dominion over the property inconsistent with Etowah's rights under the law"; fraud because ADS "misrepresented their intent in the Plan of Merger"; breach of the Merger Agreement; civil conspiracy to further a scheme to breach the fiduciary duties it was owed, violations of securities purchase or sale law, and intentional infliction of emotional distress by creating financial distress.
In Gregory v. Electro-Mechanical Corp., 83 F.3d 382 (11th Cir.1996), the Court was asked to determine whether the counts alleged in a complaint, including a count for fraudulent inducement, fell within a contract provision requiring arbitration of "any dispute. . . which may arise hereunder." Id. at 383. After considering the structure of the complaint and its factual allegations, the Eleventh Circuit concluded that, regardless of the plaintiffs' characterization of the claims, they all arose under the agreement and thus were encompassed by the arbitration provision. Id. at 384-385.
Likewise, the trial court here correctly determined that the arbitration provision in the Operating Agreement applies to claims arising from the Merger Plan. Delaware Courts consider several factors in making this kind of determination, including (1) whether the arbitration clause is broad in nature, (2) whether the counts in the complaints are at least "related to" the Operating Agreement even if they did not directly "arise from" it, (3) whether the Operating Agreement expressly incorporated the Merger Agreement, and (4) whether not arbitrating some of the claims would lead to a great deal of judicial inefficiency. Detroit Medical Center v. Provider Healthnet Services, 269 F. Supp. 2d 487 (2003).
In this case, both the Operating Agreement and the Merger Agreement have clauses related to how the shares will be valued. The Operating Agreement in section 10.10 *460 specifically states that Etowah irrevocably consents to a merger (1) upon the election of ADS and (2) the adoption of a "plan of merger" by majority vote which provides an equity interest of equal value in ADS in exchange for the Federal Road shares. The Merger Plan also specifies that Federal Road and ADS are merging pursuant to section 10.10 of the Operating Agreement.
Regarding Etowah's argument that the claims arise from common and statutory law, if the tort claims "touch on the obligations" created in the parties' contract, those claims are subject to arbitration. Parfi, supra, 817 A.2d at 156. "Where a broad arbitration clause is in effect, even the question of whether the controversy relates to the agreement containing the clause is subject to arbitration." (Punctuation omitted.) Wise v. Tidal Constr. Co., 261 Ga.App. 670, 673(1), 583 S.E.2d 466 (2003). Here, the tort claims clearly "touch on" the parties' contractual obligations in the Operating Agreement, in which the relationship between ADS, Etowah, and Federal Road was defined. The Operating Agreement clearly stated that Etowah irrevocably consented to the merger under its terms and, as noted, the Merger Plan specifically stated that ADS and Federal Road were merging pursuant to section 10.10 of the Operating Agreement. As to the breach of fiduciary duty claim, the source of ADS's fiduciary duties was the Operating Agreement. Etowah was not a party to the Merger Plan; accordingly, any fiduciary duties owed to it by necessity arose from the Operating Agreement. "A party may not avoid a contractual arbitration clause merely by casting its complaint in tort." Id.
Thus, the trial court did not err in finding the language applying the arbitration requirement to "all disputes arising hereunder" broad enough to cover this dispute.
2. We find no merit to Etowah's contention that the arbitration clause in the Agreement is not enforceable because the first sentence, "All disputes arising hereunder shall be settled by arbitration," is underlined, thus making it an unenforceable heading rather than an enforceable contract provision. It argues that section 16.8 of the Agreement stipulates that headings are for reference purposes only and have no effect on the meaning of the Agreement's provisions.
Contrary to Etowah's argument otherwise, the heading of 16.12 is clearly "Arbitration." The fact that the first sentence of the clause is underlined in a fashion similar to the headings does not modify its purpose. Similarly, in section 5.5 headed "Capital Accounts Generally," a portion of subsection (b) is underlined as follows: "No member shall be entitled to withdraw any part of its Capital Account, or to receive any distribution from the LLC except as specifically provided in this Agreement." This clause is clearly a provision of the contract and the fact that it is underlined does not change its status. Similarly, the arbitration clause is clearly a contract provision.
It is a well-established rule of contract interpretation that "the construction which will uphold a contract in whole and in every part is to be preferred." Homelife Communities Group v. Rosebud Park, LLC, 280 Ga.App. 120, 122, 633 S.E.2d 423 (2006). It is likewise "well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless." Id.
Accordingly, the trial court did not err in ordering Etowah to submit to arbitration.
Judgment affirmed.
JOHNSON, P.J., and PHIPPS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322714/ | 676 S.E.2d 460 (2009)
LOPEZ et al.
v.
EL PALMAR TAXI, INC.
No. A08A1624.
Court of Appeals of Georgia.
March 27, 2009.
*462 Hulsey, Oliver & Mahar, Jason Arnold Dean, Jessica Moore Mallanda, Gainesville, for Appellants.
Hamilton, Westby, Antonowich & Anderson, Joseph Trotter Brasher, Nall & Miller, Michael David Hostetter, Atlanta, for Appellee.
PHIPPS, Judge.
Maria Lopez, individually and on behalf of her minor children, sued El Palmar Taxi, Inc. for negligence, seeking to recover for injuries she and her children sustained while riding in a taxi displaying the El Palmar logo. Following discovery, El Palmar moved for summary judgment, claiming that the taxi driver, Mario Julaju, was an independent contractor and that it was not responsible for his actions. The trial court granted El Palmar's motion on that basis, and Lopez appeals. We agree with the trial court that El Palmar's liability cannot be established under the theory that Julaju was El Palmar's employee. Lopez also opposed the summary judgment motion based on an apparent agency between El Palmar and Julaju. Because El Palmar's liability might be established under that theory, summary judgment was inappropriate on Lopez's negligence claim. Thus, we reverse.
To prevail on summary judgment, the moving party must show that no genuine issue of material fact exists and that the undisputed facts, viewed in the light most favorable to the nonmoving party, require judgment as a matter of law.[1] We review the grant of summary judgment de novo.[2]
The evidence pertinent to this appeal showed that Julaju drove a taxi on a part-time basis, usually only on Sundays and sometimes on Mondays. He worked an unrelated job on the remaining days of the week. When Julaju applied to work as a taxi driver, El Palmar gave him an independent contractor agreement to sign. He read it and printed his name where he was instructed. Julaju was also given certain rules to follow dress neatly, do not allow smoking in the car, do not allow passengers in front unless absolutely necessary and ask the passengers to wear their seat belts. All cars driven for El Palmar had to be white and display the El Palmar logo. An El Palmar representative testified that these rules, including the car color and required logo, were imposed by the City of Gainesville. Julaju testified that he did not know what rules the city imposed, other than a requirement that he obtain a taxi license. Julaju obtained his taxi license from the city by filling out an application and giving it and the applicable fee to El Palmar.
Julaju testified that when he was driving a taxi, he did not have a set schedule and could work when he wanted and for as long as he wanted. While working, he drove either a car provided by El Palmar or a car owned by another taxi driver. To obtain a fare from El Palmar, Julaju would call the office to let them know he was working and then wait for them to give him an address to pick someone up. While he was waiting, Julaju was free to look for his own fares. He was supposed to let El Palmar know if he did this, but Julaju testified that many times drivers did not do so because they wanted to keep their place in line for a fare from El Palmar. He was not required to take any fare offered by El Palmar, but would lose his place in line if he refused.
Julaju testified that if he borrowed a car from El Palmar, he split his fares with the company.[3] If he drove another taxi owner's car, he split his fares with the owner and the owner paid El Palmar the fee to be on the dispatch list. Car owners were required to maintain their own cars and drivers were *463 responsible for the gas. To insure the cars, El Palmar collected premiums from the car owners and sent them to the insurance company.
On the morning of August 9, 2004, Julaju informed El Palmar that he was available to work. El Palmar provided his first fare picking up Lopez and her children. While Julaju was driving them to their destination, his taxi collided with a truck. Julaju was driving a car owned by another taxi driver, not El Palmar. El Palmar's insurance did not cover the injuries Julaju sustained in the collision.
Lopez claims that she hired El Palmar to transport her and her children and that its negligence caused the collision that resulted in their injuries. She argues that the trial court erred in granting El Palmar's motion for summary judgment because: (1) El Palmar admitted in its initial answer that Lopez had hired it to transport her and her children; and (2) genuine issues of material fact remain regarding whether Julaju was an El Palmar employee.
1. In the complaint, Lopez alleged that she, accompanied by her children, hired El Palmar to transport them safely to their destination. In its initial answer, El Palmar admitted this allegation. In its amended answer, El Palmar denied this allegation and stated that Lopez had hired an independent contractor for transportation, not El Palmar. Lopez argues that El Palmar's initial admission creates a genuine issue of material fact regarding Julaju's employment status that precludes summary judgment.
Lopez relies on OCGA § 24-3-30, which provides that either party may avail itself of allegations or admissions made in the pleadings of the other party, and Strozier v. Simmons U.S.A. Corp.[4] In Strozier, the defendants admitted that the plaintiff was employed by one company in their answers and a statement of material facts accompanying a motion for summary judgment. They later amended their answers to state that they were joint venturers and employers of plaintiff. The court held that the admissions, even if withdrawn by the amended answers, were still evidence refuting the assertion of a joint enterprise.[5] And relying on the contradictory testimony rule set forth in Prophecy Corp. v. Charles Rossignol, Inc.,[6] the Strozier court noted that the defendants, "having admitted to the contrary, could not establish as a matter of law that the admission was untrue, but only could raise an issue of fact for a jury to determine."[7]
To the extent that El Palmar's initial answer contained an admission that Julaju was its employee, such admission was "withdrawn by timely amendment, allowing positive evidence of the contrary to overcome it as an admission."[8] In Jennings, this court recognized that the Prophecy rule does not apply in cases like this one because the pleadings were not verified or otherwise given under oath, "which is necessary for such evidentiary rule to apply."[9]
2. Lopez contends that even if El Palmar's admission does not preclude summary judgment, genuine issues of material fact remain regarding Julaju's employment status.
As a general rule, an employer is not responsible for torts committed by its employee when the employee exercises an independent business and is not subject to the immediate direction and control of the employer.[10] To determine whether the relationship *464 of the parties is that of employer and servant or that of employer and independent contractor, the primary test is whether the employer retains the right to control the time, manner and method of executing the work.[11] "Where the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control."[12]
Here, Julaju executed an agreement with Rebollar Mateo, Inc. d/b/a El Palmar Taxi that he would work for El Palmar as an independent contractor.[13] The only restrictions the contract imposed on him were to comply with all federal, state and local laws requiring business permits, certificates and licenses and to refrain from operating under the company's name in any jurisdiction where the vehicle could not legally be operated.
The evidence does not show that El Palmar assumed control over the time, manner or method of Julaju's work. He was free to work when and for as long as he wanted, he was not required to accept fares from El Palmar, he could obtain his own fares and he could work anywhere the taxi could legally be operated.[14] The fact that the cars he drove displayed the El Palmar logo and the fact that he received calls from El Palmar are not sufficient to create an employer-employee relationship.[15]
This court has also held that "[t]o prove that a taxicab driver was operating a vehicle in the course of the employer's business and within the scope of the driver's employment, the plaintiff must show . . . that the employer owned the vehicle. . . ."[16] Although Julaju testified that he sometimes drove cars that he believed were owned by El Palmar, the car he drove the day of the collision was not owned by El Palmar.[17] Thus, El Palmar cannot be held liable for Julaju's negligence under the theory that Julaju was El Palmar's employee.[18]
3. Lopez contends that El Palmar should be held liable for any negligence by Julaju because it held its drivers out to the public as employees by advertising in the local telephone book and by using business cards bearing the company name, not the driver's names. The trial court did not address this contention, which was raised below in general terms in opposition to El Palmar's motion for summary judgment.
Under the doctrine of apparent or ostensible agency, "`[o]ne who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.'"[19] In Richmond County Hosp. Auth. v. Brown,[20] the *465 Supreme Court of Georgia considered this example from a comment to Restatement of the Law, Agency, § 267:
Suppose a cab company holds itself out to the public as a safe, efficient supplier of transportation causing the public, including plaintiff-passenger, to justifiably believe the drivers are its employees. But suppose there is a secret arrangement unknown to the public and this passenger which renders the drivers independent contractors in their relationship to the cab company. If a taxi driver in a single collision negligently injures a passenger and a pedestrian on the street, the passenger may successfully pursue a claim against the cab company on apparent agency principles.[21]
Although the Richmond County case applied the doctrine of apparent or ostensible agency to a hospital/doctor arrangement, the doctrine has been considered in a taxicab company/passenger arrangement.[22]
While apparent agency cannot be based upon an assumption or mere belief that an agency relationship exists,[23] "[a] claim of agency may be proved, as any other fact, by circumstantial evidence . . . . The fact of agency may be established by proof of circumstances, apparent relations, and the conduct of the parties."[24]
El Palmar does not dispute that it advertised its taxi services in the local telephone book. El Palmar also had business cards bearing the company name that were made available to the drivers to give to passengers. Further, El Palmar admitted that Lopez "called El Palmar Taxi seeking a taxi to pick her up" and that a taxi displaying its own El Palmar logo picked up Lopez and her children.[25]
Viewing the undisputed facts in the light most favorable to Lopez as the nonmoving party, we conclude that the existing record does not show that El Palmar was entitled to summary judgment on Lopez's negligence claim under the theory that Julaju was an apparent agent of El Palmar.[26]
Judgment reversed.
JOHNSON, P.J., and BARNES, J., concur.
NOTES
[1] McLeod v. Blase, 290 Ga.App. 337, 659 S.E.2d 727 (2008).
[2] Id.
[3] An El Palmar representative testified that it did not provide cars to drivers who did not have one; they were required to borrow a car from a taxicab owner. The representative also testified that El Palmar received only a set daily fee and did not split fares with the drivers.
[4] 192 Ga.App. 601, 385 S.E.2d 677 (1989).
[5] Id. at 603, 385 S.E.2d 677.
[6] 256 Ga. 27, 343 S.E.2d 680 (1986) (where testimony of a party-witness is contradictory, testimony will not be construed against the party-witness if a reasonable explanation is offered for the contradiction; the burden is on the party giving testimony to offer a reasonable explanation, and the trial court determines as matter of law whether this has been done).
[7] Strozier, supra.
[8] Jennings v. Psychiatric Health Svcs., 258 Ga. App. 111, 112, 573 S.E.2d 115 (2002).
[9] Id. at 113, 573 S.E.2d 115 (citation omitted).
[10] OCGA § 51-2-4.
[11] American Assn. of Cab Cos. v. Parham, 291 Ga.App. 33, 35(1), 661 S.E.2d 161 (2008); Cotton States Mut. Ins. Co. v. Kinzalow, 280 Ga.App. 397, 399-400, 634 S.E.2d 172 (2006).
[12] Kinzalow, supra at 400, 634 S.E.2d 172 (citation and punctuation omitted).
[13] Mateo Rebollar, Sr., was the owner of El Palmar Taxi.
[14] See Metro Taxi v. Brackett, 273 Ga.App. 122, 614 S.E.2d 232 (2005) (no employer-employee relationship shown where driver had permit to drive taxi, driver's only obligation was to pay daily fee to drive car, driver was not required to accept calls from company, and company exercised no control over where drivers operated).
[15] See Red Top Cab Co. v. Hyder, 130 Ga.App. 870, 871, 204 S.E.2d 814 (1974) (fact that company relayed messages when someone called for a taxi was not sufficient to show driver was company's agent); Clark v. Atlanta Veterans Transp., 113 Ga.App. 531, 532, 148 S.E.2d 921 (1966) (proof that cab was lettered "Checker Cab" was not sufficient to show agency).
[16] Parham, supra (citation omitted).
[17] See generally Moss v. Central of Ga. R. Co., 135 Ga.App. 904, 906, 219 S.E.2d 593 (1975) (one may be both a servant and an independent contractor with respect to his employer; question is whether person was servant or independent contractor at time of injury).
[18] See Metro Taxi, supra at 123, 614 S.E.2d 232.
[19] Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 508, 361 S.E.2d 164 (1987) (citing Restatement of the Law, Agency, § 267).
[20] Supra.
[21] Id. at 509, 361 S.E.2d 164.
[22] See Cooper v. Olivent, 271 Ga.App. 563, 565(2), 610 S.E.2d 106 (2005) (noting that, under Richmond County, taxicab passenger can pursue apparent agency claim against cab company where company represents that its driver is an employee when the driver is actually an independent contractor); Loudermilk Enterprises v. Hurtig, 214 Ga.App. 746, 449 S.E.2d 141 (1994) (evidence was insufficient to support claim that an implied or apparent agency existed between owner of company and its taxicab drivers where plaintiff was not passenger in taxicab, but driver of another vehicle involved in collision caused by taxicab driver) (physical precedent); Id. at 751-752, 449 S.E.2d 141 (apparent agency relationship between taxicab owner and its driver may give rise to tort liability) (Johnson, J., concurring specially).
[23] Bennett v. Miller, 188 Ga.App. 72, 74, 371 S.E.2d 903 (1988).
[24] Arrington & Blount Ford v. Jinks, 154 Ga.App. 785, 786-787(1), 270 S.E.2d 27 (1980) (citations and punctuation omitted).
[25] See Loudermilk Enterprises, supra at 752, 449 S.E.2d 141 (Johnson, J., concurring specially) ("In many instances, passengers undoubtedly choose to ride in cabs apparently owned and operated by established companies because they assume such cabs are safer and more reliable than cabs wholly owned and operated by individual drivers.").
[26] See generally Watson v. Howard Johnson Franchise Systems, 216 Ga.App. 237, 453 S.E.2d 758 (1995). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322744/ | 676 S.E.2d 204 (2009)
DIVERSE POWER, INC.
v.
JACKSON et al.
No. S09A0393.
Supreme Court of Georgia.
April 28, 2009.
*205 Sutherland, Asbill & Brennan, James A. Orr, William R. Wildman, Benjamin C. Morgan, Brian D. Burgoon, Atlanta, for appellant.
Thurbert E. Baker, Attorney General, William W. Banks, Jr., Senior Assistant Attorney General, Tiffany Y. Lucas, Assistant Attorney General; Troutman Sanders, William M. Droze, Robert P. Edwards, Jr., Jeffrey J. Hayward, Atlanta, for appellee.
MELTON, Justice.
Pursuant to Georgia's State Purchasing Act (OCGA § 50-5-50 et seq.), on August 8, 2006, the Georgia Department of Technical and Adult Education (DTAE) sent a Request for Proposal to Diverse Power, Inc., Georgia Power Company, and the City of West Point, to solicit competitive bids for electrical services for a training center. All three responded with bids, and on October 18, 2006, DTAE notified Diverse Power that it had awarded the electrical services contract to Georgia Power. Diverse Power, believing that it should have been awarded the contract over Georgia Power, notified DTAE on December 18, 2006 of its objection to the selection of Georgia Power. On December 27, 2006, DTAE informed Diverse Power that its objection to the award was untimely, because the objection did not comply with the requirements of the Department of Administrative Services' Georgia Vendor Manual (GVM). Specifically, the GVM required that a "protest by a bidder/offeror must be filed no later than ten (10) calendar days following the date of the Notice of Intent to Award." GVM § 3.8(1)(b)(i). Roughly one month later, Diverse Power sued DTAE, Ronald W. Jackson (DTAE's Commissioner), and Georgia Power, seeking to enjoin performance of the contract with Georgia Power and to have the contract awarded to Diverse Power. On April 9, 2008, the trial court dismissed the action, reasoning in part that Diverse Power had failed to utilize the administrative remedies available to it before seeking its requested equitable relief.
Following the Court of Appeals' denial of Diverse Power's Application for Discretionary Appeal, this Court granted Diverse Power's Petition for Writ of Certiorari to determine whether the doctrine of exhaustion of administrative remedies is applicable to contracts awarded under the GVM and Georgia's State Purchasing Act. For the reasons that follow, we hold that the doctrine is applicable here, and that Diverse Power was therefore required to exhaust its administrative remedies before pursuing equitable relief. Accordingly, we affirm the trial court's dismissal of Diverse Power's claims.
Diverse Power argues that it was not required to exhaust its available administrative remedies because the Legislature did not include an express exhaustion requirement in the State Purchasing Act. However, *206 the Legislature, through the State Purchasing Act, expressly gave the Department of Administrative Services the authority to "make all rules, regulations, and stipulations and to provide specifications to carry out the terms and provisions of [the State Purchasing Act] as may be necessary for the purposes of th[e Act]." OCGA § 50-5-54. See also Dept. of Transp. v. Del-Cook Timber Co., 248 Ga. 734, 737(3), 285 S.E.2d 913 (1982) ("it has long been recognized that the General Assembly is empowered to enact laws of general application and then delegate to administrative officers or agencies the authority to make rules and regulations necessary to effectuate such laws") (citations omitted). In this connection, the Legislature did not have to include an express exhaustion requirement in the State Purchasing Act, because the GVM itself sets forth the "rules, regulations, and stipulations," including mandatory protest procedures, that are necessary for carrying out the purposes of the Act. OCGA § 50-5-54. See also GVM § 3.8 ("This section describes the mandatory administrative procedure ... whereby bidders/offerors may challenge contract awards"). One of the express purposes of the State Purchasing Act is "[t]o provide for timely, effective, and efficient service to using agencies and to vendors doing business with the state." OCGA § 50-5-50(4). The GVM protest procedures help to fulfill this purpose by ensuring that any protests that might delay the implementation of contracts are handled expeditiously. See GVM § 3.8(1)(b)(i) ("protest by a bidder/offeror must be filed no later than ten (10) calendar days following the date of the Notice of Intent to Award"). Moreover, the GVM makes clear that the protest procedures contained therein "describe[] mandatory administrative procedure[s]" (id.), further underscoring the importance of compliance with its terms to ensure the expeditious resolution of protests that could delay necessary services.
Where, as here, an authorized and available administrative remedy exists,
[l]ong-standing Georgia law requires that a party aggrieved by a state agency's decision must raise all issues before that agency and exhaust available administrative remedies before seeking any judicial review of the agency's decision. As long as there is an effective and available administrative remedy, a party is required to pursue that remedy before seeking equitable relief in superior court.
(Footnotes omitted.) Cerulean Cos., Inc. v. Tiller, 271 Ga. 65, 66(1), 516 S.E.2d 522 (1999). Because Diverse Power was required to utilize the available administrative procedure here before seeking equitable relief, but failed to do so, the trial court properly dismissed Diverse Power's claims.[1]
Judgment affirmed.
All the Justices concur.
NOTES
[1] Based on the facts of this case, we find no merit to Diverse Power's contention that the ten-day period within which a bidder must file an initial protest is unreasonable. Regardless of whether or not the ten-day protest period could be considered unreasonable under other circumstances, here, the record makes clear that there was nothing about the ten-day protest window that prevented Diverse Power from complying with it after being notified of the electrical services contract being awarded to Georgia Power. Contrary to Diverse Power's claims, it was not required to obtain more information regarding any alleged wrongdoing by the Department of Administrative Services before filing an initial protest to the award to Georgia Power. Indeed, the GVM contemplates that an aggrieved bidder may not have all of the information that he or she needs to challenge an award at the time of filing the initial protest, as an aggrieved bidder may later supplement their protest with "[s]upporting exhibits, evidence, or documents [that were] not available within the filing time." GVM § 3.8(1)(b)(vii). By waiting two months before filing its initial protest, despite having no legitimate reason for failing to comply with the ten-day administrative filing requirement, Diverse Power ran the risk of "waiv[ing] with prejudice... any grounds it may have [had] for a protest." Id. We decline to address whether the ten-day rule for filing an initial protest could be unreasonable under facts different from those presented here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322741/ | STATE OF NORTH CAROLINA
v.
JOSEPH THOMAS EWART, Defendant.
No. COA08-681.
Court of Appeals of North Carolina .
Filed May 19, 2009.
This case not for publication
Attorney General Roy Cooper, by Assistant Attorney General Tenisha S. Jacobs, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for defendant-appellant.
GEER, Judge.
Defendant Joseph Thomas Ewart appeals his conviction of possession of marijuana on the premises of a penal institution or local confinement facility. Defendant primarily argues that the trial court abused its discretion by allowing the State to call defendant's cell mate as a witness despite the State's having failed to provide a witness statement prior to trial. We hold that the trial court did not abuse its discretion in declining to exclude this testimony in light of the information that was disclosed to defendant in advance of trial. Because we find defendant's remaining arguments unpersuasive, we uphold defendant's conviction.
Facts
The State's evidence tended to show the following facts. On 26 February 2007, defendant was being housed along with Richard Sciara in cell D-4, located in the "D-Pod" at the Haywood County Detention Center. At about 5:00 p.m., Officer Russell Bryson began his rounds to "make sure everybody was where they were supposed to be." When he entered D-Pod, Officer Bryson noticed the smell of marijuana and informed his superior, Sergeant Joey Trantham. The two officers searched the cells in D-Pod, including defendant's cell.
After nothing was found during the search, Officer Bryson announced that he would bring in drug-sniffing dogs if necessary to find the drugs. Soon afterward, someone "slipped" Officer Bryson a note, and Officer Bryson and Sergeant Trantham conducted a second search of the cells in D-Pod. When they entered defendant's cell, Sergeant Trantham noticed a smell like something was burning. Based on his experience, he believed it was "dope." Defendant and Mr. Sciara were both frisked and their cell was searched. In Mr. Sciara's laundry bag, Officer Bryson found a lighter and three "parcels" that contained a green substance, which looked and smelled like marijuana. They also found another lighter in defendant's sock.
Officer Bryson then called the Haywood County Sheriff's Department to inform them of what happened and took defendant to B-Pod for questioning. Defendant denied that the parcels belonged to him. While talking with defendant, Officer Bryson noticed the smell of marijuana on defendant's breath. Sergeant Trantham thought that defendant's breath smelled like either marijuana or tobacco.
When Mr. Sciara was questioned about the parcels, he told Officer Bryson that it was not his marijuana, that defendant had been smoking marijuana in their cell that day, and that defendant had tried, after the first search, in a "threatening way," to get Mr. Sciara to hide the marijuana in his body. Officer Bryson did not notice any smell of marijuana on Mr. Sciara's breath.
On 7 January 2008, defendant was indicted for possession of a controlled substance on the premises of the Haywood County Detention Center in violation of N.C. Gen. Stat. § 90-95(e)(9) (2007). At trial, in addition to both Officer Bryson and Sergeant Trantham's testifying, Deputy Dan Sherrill with the Haywood County Sheriff's Department also testified. He explained that he had responded to Officer Bryson's call to the Sheriff's Department. When he arrived, he collected the confiscated green material, bagged it, and put it into evidence. He testified without objection by defendant that based on his 12 years of law enforcement experience and specialized training in narcotics investigation, he had "no doubt" that the vegetable material in the parcels was marijuana.
Over defendant's objection, Mr. Sciara testified that defendant had been smoking marijuana in their cell on 26 February 2007. Mr. Sciara admitted that he "took maybe two or three puffs" that day. He also stated that after the initial search by Officer Bryson and Sergeant Trantham, defendant asked Mr. Sciara to hide the marijuana inside his person and threatened him if he did not help defendant.
Defendant did not present any evidence in his defense, and the jury convicted defendant of possessing marijuana on the premises of the Haywood County Detention Facility. The trial court sentenced defendant to a presumptive-range term of nine to 11 months imprisonment. Defendant timely appealed to this Court.
I
On appeal, defendant first argues that the trial court erred under Rule 602 of the Rules of Evidence in allowing Officer Bryson and Sergeant Trantham to testify over defendant's objection about matters not within their personal knowledge. Rule 602 prohibits a witness from "testify[ing] to a matter unless evidenceis introduced sufficient to support a finding that he has personal knowledge of the matter." N.C.R. Evid. 602. See also State v. Cole, 147 N.C. App. 637, 645, 556 S.E.2d 666, 671 (2001) ("The purpose of Rule 602 is to prevent a witness from testifying to a fact of which he has no direct personal knowledge."), appeal dismissed and cert. denied, 356 N.C. 169, 568 S.E.2d 619 (2002).
Specifically, defendant contends that because there was no foundation that Officer Bryson knew "the identity of the material" found in defendant's cell or knew "what marijuana smelled like," it was impermissible for Officer Bryson to testify that he found "marijuana" in defendant's cell and that "[defendant]'s breath smelled of marijuana." Defendant likewise argues that Sergeant Trantham lacked "personal knowledge of the identity of the material," and thus the trial court erred in allowing him to testify that when he entered defendant's cell, it smelled like "dope."
With respect to Officer Bryson's testimony that the material found in defendant's cell was marijuana, defendant has failed to demonstrate any prejudice resulting from the admission of this testimony in light of Deputy Sherrill's testimony that, based on his 12 years of law enforcement experience and narcotics training, he had "no doubt" that the vegetable material found in defendant's cell was marijuana. It is "well settled that the admission of testimony over objection ordinarily is harmless error when testimony of the same import is theretofore or thereafter introduced without objection." State v. Blount, 20 N.C. App. 448, 450, 201 S.E.2d 566, 568 (holding that any error in overruling objection to testimony that substance observed on table near defendant was heroin was harmless when testimony of the same import was introduced later without objection), cert. denied, 285 N.C. 86, 203 S.E.2d 59 (1974).
Similarly, defendant has failed to demonstrate prejudice from Sergeant Trantham's testimony that he smelled something like burning rags in D-pod, and "what I always figure in my ten years there when I smell it, it's usually dope." We need not decide whether Sergeant Trantham's reference to his years of experience at the detention facility provided a sufficient foundation because defendant did not object to testimony by Officer Bryson that when he entered D-pod, the "smell of marijuana would just about knock you down." This testimony was of the same import as Sergeant Trantham's more colloquial version and, therefore, rendered harmless any error as to the latter testimony.
Finally, defendant objected at trial to Officer Bryson's testimony that defendant's breath smelled of marijuana. Defendant did not, however, challenge Sergeant Trantham's testimony that he could smell "tobacco or marijuana or something on [defendant's] breath." In any event, as we have noted, Officer Bryson had previously testified, without objection, that he had smelled marijuana upon entering D-pod. The commentary to Rule 602 explains that the "[p]reliminary determination of personal knowledge need not be explicit but may be implied from the witness' testimony." N.C.R. Evid. 602, cmt. Moreover, "'personal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception.'" State v. Wright, 151 N.C. App. 493, 495, 566 S.E.2d 151, 153 (2002) (quoting N.C.R. Evid. 602, cmt.). We believe that Officer Bryson's personal knowledge of what smoked marijuana smells like can be inferred from the officer's testimony. The trial court, therefore, did not err in overruling defendant's objection.
II
Defendant next contends that the trial court committed prejudicial error by allowing Mr. Sciara to testify at trial when the State had not, prior to trial, provided defendant with any written statement summarizing the interview with Mr. Sciara in violation of N.C. Gen. Stat. § 15A-903(a) (2007). If, at any time during the proceedings, the trial court determines that the State has failed to comply with discovery provisions, then it may order discovery, grant a continuance or recess, exclude from admission evidence not disclosed, declare a mistrial, dismiss the charge, or enter other appropriate orders. N.C. Gen. Stat. § 15A-910(a) (2007). Prior to "finding any sanctions appropriate, the court shall consider both the materiality of the subject matter and the totality of the circumstances surrounding" the failure to comply with the discovery provisions. N.C. Gen. Stat. § 15A-910(b).
The trial court's decision regarding what sanction, if any, to impose is a matter within the trial court's discretion. State v. Weeks, 322 N.C. 152, 171, 367 S.E.2d 895, 906 (1988). A decision regarding discovery sanctions will not be overturned on appeal absent a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision. State v. Nolen, 144 N.C. App. 172, 184, 550 S.E.2d 783, 790, appeal dismissed and disc. review denied, 354 N.C. 368, 557 S.E.2d 531 (2001).
When Mr. Sciara was called to testify, defense counsel objected to him testifying at all on the ground that the State had failed to produce a witness statement. In response, the prosecutor acknowledged that no witness statement had been provided to defendant, explaining that, inadvertently, no witness statement had been drafted. The prosecutor argued, however, that an incident report provided to defense counsel had reported that Mr. Sciara told Officer Bryson that defendant had threatened Mr. Sciara after the initial search on 26 February 2007 if he did not help defendant hide the marijuana. The prosecutor contended that Mr. Sciarashould, at least, be permitted to testify regarding the threat. Defense counsel argued that even if Mr. Sciara were allowed to testify, he should not be allowed to "testi[fy] about marijuana being smoked in the room, because today is the first time I've heard that." The trial court overruled defense counsel's objection and allowed Mr. Sciara to testify without limitation.[1]
Assuming that there was a discovery violation, we cannot conclude that the trial court abused its discretion in allowing Mr. Sciara to testify. This Court, in State v. Zamora-Ramos, ___ N.C. App. ___, ___, 660 S.E.2d 151, 154 (2008) (quoting State v. Payne, 327 N.C. 194, 202, 394 S.E.2d 158, 162 (1990), cert. denied, 498 U.S. 1092, 112 L. Ed. 2d 1062, 111 S. Ct. 977 (1991)), reiterated: "'[T]he purpose of discovery under our statutes is to protect the defendant from unfair surprise by the introduction of evidence he cannot anticipate.'" In this case, the parties at trial focused on two aspects of Mr. Sciara's anticipated testimony: (1) his claim that defendant threatened him if he did not help hide the marijuana, and (2) his claim that defendant was smoking marijuana in their cell.
It is undisputed that defendant did receive notice through an incident report disclosed in discovery that Mr. Sciara had been interviewed and that he had mentioned the threat in that interview. Defendant thus could have anticipated that Mr. Sciara would testify that the marijuana belonged to defendant and that defendant had threatened him about hiding the marijuana. See State v. Jones, 151 N.C. App. 317, 325, 566 S.E.2d 112, 118 (2002) (holding that, although State's failure to disclose photographs was discovery violation, defendant had prior notice of photographs and thus was "not surprised by the introduction of the photographs at trial"; trial court's refusal to impose sanctions was reasonable in light of defendant's prior notice), appeal dismissed and disc. review denied, 356 N.C. 687, 578 S.E.2d 320, cert. denied, 540 U.S. 842, 157 L. Ed. 2d 76, 124 S. Ct. 111 (2003).
In addition, defendant knew that the officers believed that they had smelled marijuana burning when they entered defendant's pod and, further, that they had smelled marijuana on defendant's breath, but had not smelled marijuana on Mr. Sciara's breath. The officers had also found a lighter in defendant's sock. As a result, even without a statement from Mr. Sciara, defendant knew he needed to be prepared at trial to defend against the claim that he had been smoking marijuana in his and Mr. Sciara's cell. Because of this knowledge, the trial court could have reasonably determined that defendant could not have been surprised that Mr. Sciara would take the position that it was defendant who was smoking the marijuana. Defendant was able to defend against this testimony on cross-examination by walking through Mr. Sciara's criminal record, by stressing that he had also smoked the marijuana, and by pointing out that Mr. Sciara was not telling the truth when he asserted that he did not smoke marijuana in his cell.
Defendant does not, on appeal, identify anything further that he could have done in preparation for Mr. Sciara's testimony had he received a written summary of Mr. Sciara's interview. Instead, he argues that Mr. Sciara's testimony prejudiced him by providing direct evidence that defendant possessed marijuana. That direct evidence was, however, supplied when Mr. Sciara testified that defendant threatened Mr. Sciara if he did not help defendant by hiding the marijuana in Mr. Sciara's person. Yet, defendant acknowledges that he had received notice of that claim and was not, therefore, surprised by it.
Under these circumstances, we cannot conclude that the trial court abused its discretion when concluding that defendant was not sufficiently surprised to warrant exclusion of Mr. Sciara's testimony. See State v. Jaaber, 176 N.C. App. 752, 756-57, 627 S.E.2d 312, 314-15 (2006) (finding no abuse of discretion in trial court's denial of discovery sanctions where defendant was able to cross-examine witnesses for whom there were no witness statements and State presented other evidence of defendant's guilt). Accordingly, we overrule this assignment of error.
III
Defendant also assigns error to the trial court's denial of his motion to dismiss for insufficient evidence. In determining whether a motion to dismiss for insufficiency of the evidence should be granted, the trial court must decide "whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781, cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403, 123 S. Ct. 495 (2002).
In reviewing challenges to the sufficiency of the evidence, the evidence must be viewed in the light most advantageous to the State, giving the State the benefit of all reasonable inferences. State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993). Contradictions and discrepancies in the evidence do not warrant dismissal, but are for the jury to resolve. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
Defendant was charged with possessing marijuana on the premises of a penal institution or local confinement facility in violation of N.C. Gen. Stat. § 90-95(e)(9). Under the statute, the State is required to prove that the defendant (1) possessed, (2) a controlled substance, (3) on the premises of a penal institution or local confinement facility. N.C. Gen. Stat. § 90-95(e)(9) ("Any person who [possesses a controlled substance] on the premises of a penal institution or local confinement facility shall be guilty of a Class H felony."). Defendant only challenges the sufficiency of the evidence relating to the second element, arguing that "[t]he evidence presented that the material found in Mr. Sciara's personal property was `marijuana' was sufficient only to permit suspicion or conjecture."
Deputy Sherrill, however, testified on direct examination, without objection from defendant, that the substance in the discovered parcels was marijuana. He further stated on re-direct, again without objection, that based on his "training and experience," he had "no doubt" that the substance was marijuana. Unchallenged by defendant, this testimony was sufficient to permit the jury to reasonably conclude that the substance was marijuana. Consequently, the trial court properly denied defendant's motion to dismiss.
No Error.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
NOTES
[1] Defendant argues that the trial court mistakenly believed that there was no discovery violation because Mr. Sciara had not adopted any written statement. Our review of the transcript does not suggest that the trial court misapprehended the law. Rather, we believe that the trial court, in referencing a written statement, was simply discussing the issue in the same terms used by both the prosecutor and defense counsel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322751/ | 676 S.E.2d 907 (2009)
In the Matter of N.E.L., a minor child.
No. COA08-1573.
Court of Appeals of North Carolina.
June 2, 2009.
No brief, for Robeson County Department of Social Services, petitioner-appellee.
North Carolina Administrative Office of the Courts, by Associate Legal Counsel Pamela Newell Williams, Raleigh, for Guardian ad Litem.
Robin E. Strickland, Raleigh, for respondent-appellant mother.
JACKSON, Judge.
Respondent-mother ("respondent") appeals the termination of her parental rights to her son, N.E.L. For the reasons stated below, we vacate.
Robeson County DSS ("DSS") took custody of N.E.L. on 6 January 2005, when he was just three days old. His mother had had no prenatal care and had used drugs during her pregnancy. N.E.L. tested positive at birth for cocaine. On 10 May 2005, N.E.L. was adjudicated a neglected juvenile within the meaning of North Carolina General Statutes, section 7B-101(15).
DSS filed a petition to terminate respondent's parental rights on 1 December 2006. A summons was issued to respondent, but it was returned unserved on 6 December 2006. That original summons has no endorsement. *908 Neither a new summons nor an alias and pluries summons was issued. On 12 September 2007, respondent signed a document purporting to accept service of a summons and petition. No summons was issued to or served upon N.E.L., nor was any summons served upon a guardian ad litem on his behalf.
On 24 October 2007, the trial court held a hearing on the termination of respondent's parental rights. In its order filed 30 October 2007, the trial court made findings of fact and concluded as a matter of law that grounds existed to terminate respondent's parental rights and that it was in N.E.L.'s best interests to do so. Therefore, the trial court terminated respondent's parental rights. Respondent appeals.
Respondent first argues that the trial court lacked subject matter jurisdiction to terminate her parental rights because she was not served with a valid summons. We agree.
We often have stated that "`[t]he question of subject matter jurisdiction may be raised at any time, even in the Supreme Court.'" In re A.F.H-G, 189 N.C.App. 160, 160, 657 S.E.2d 738, 739 (2008) (quoting Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85-86 (1986)). We review matters of subject matter jurisdiction de novo. In re J.A.P., 189 N.C.App. 683, 685, 659 S.E.2d 14, 16 (2008).
Pursuant to North Carolina General Statutes, section 7B-1106(a), "upon the filing of the petition [to terminate parental rights], the court shall cause a summons to be issued." N.C. Gen.Stat. § 7B-1106(a) (2007). "The summons shall be directed to the [juvenile's parent] . . . who shall be named as [a] respondent[.]" N.C. Gen.Stat. § 7B-1106(a)(1) (2007).
Our Supreme Court recently rejected the notion, that "service of the summons on any particular party is necessary to invoke the trial court's subject matter jurisdiction." In re N.C.H., 363 N.C. 116, 116, ___ S.E.2d ___, ___ (2009) (citing In re J.T. (I), 363 N.C. 1, 4-5, 672 S.E.2d 17, 19 (2009) ("[T]he trial court's subject matter jurisdiction was properly invoked upon the issuance of a summons.") (emphasis added)). However, pursuant to Rule 4 of the North Carolina Rules of Civil Procedure, service of a summons "must be made within 60 days after the date of the issuance of summons." N.C. Gen.Stat. § 1A-1, Rule 4(c) (2007). "[A] summons that is not served within [this] period becomes dormant and cannot effect service over the defendant, but may be revived by either of [ ] two methods." County of Wayne ex rel. Williams v. Whitley, 72 N.C.App. 155, 158, 323 S.E.2d 458, 461 (1984).
Within ninety days of issuance, a plaintiff either may secure an endorsement upon the original summons for an extension of time within which to complete service of process or sue out an alias or pluries summons. N.C. Gen.Stat. § 1A-1, Rule 4(d)(1), (2) (2007). Additionally, a plaintiff make seek an extension of time pursuant to Rule 6 upon motion and a showing of excusable neglect. N.C. Gen.Stat. § 1A-1, Rule 6(b) (2004); Hollowell v. Carlisle, 115 N.C.App. 364, 444 S.E.2d 681 (1994); Dozier v. Crandall, 105 N.C.App. 74, 76-77, 411 S.E.2d 635, 637 (1992). "The consequence of not obtaining an endorsement, extension, or alias/pluries summons within ninety days after the issuance of the summons is the discontinuation of the action." In re A.B.D., 173 N.C.App. 77, 85, 617 S.E.2d 707, 713 (2005). The action is treated as if it had never been filed. Johnson v. City of Raleigh, 98 N.C.App. 147, 148-49, 389 S.E.2d 849, 851, disc. rev. denied, 327 N.C. 140, 394 S.E.2d 176 (1990). "[W]here an action has not been filed, a trial court necessarily lacks subject matter jurisdiction." In re A.B.D., 173 N.C.App. at 86, 617 S.E.2d at 713.
Here, respondent "accepted service" on 12 September 2007, 285 days after the summons was issued. At that time, it was as though no action had been filed because there was no endorsement, extension, or alias and pluries summons. Accordingly, any subject matter jurisdiction the court had pursuant to the issuance of a summons was discontinued and expired before respondent's parental rights were terminated. Therefore, *909 we must vacate the trial court's order terminating respondent's parental rights.
Because our review of this issue is dispositive, we need not address respondent's other argument with respect to the issuance and service of a summons upon N.E.L.
Vacated.
Judges WYNN and ROBERT N. HUNTER, JR. concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322749/ | 676 S.E.2d 388 (2009)
FULTON COUNTY
v.
LEGACY INVESTMENT GROUP, LLC.
Legacy Investment Group, LLC
v.
Fulton County.
Nos. A09A0371, A09A0372.
Court of Appeals of Georgia.
March 20, 2009.
*390 Steven E. Rosenberg, Atlanta, for appellant.
Balch & Bingham, J. Matthew Maguire, Jr., Atlanta, for appellee.
ELLINGTON, Judge.
A Fulton County jury returned a verdict against Fulton County in favor of Legacy Investment Group, LLC, on Legacy's claim for damages under 42 U.S.C. § 1983 for alleged violations of its equal protection rights in Fulton County's enforcement of a certain land use ordinance. In Case No. A09A0371, Fulton County appeals from the judgment entered on the jury's verdict, contending the trial court erred in denying its motion for a directed verdict on Legacy's claim for damages and for litigation expenses. In Case No. A09A0372, Legacy cross-appeals, arguing the trial court erred in denying as moot its petition for a declaratory judgment that the ordinance at issue is unconstitutional. As explained below, we affirm the jury's verdict appealed in Case No. A09A0371 and vacate the trial court's ruling appealed in Case No. A09A0372.
[O]n appeal from a trial court's ruling[] on [a] motion[] for directed verdict ..., we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts ... are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.
(Citation and punctuation omitted.) Fertility Technology Resources v. Lifetek Medical, 282 Ga.App. 148, 149, 637 S.E.2d 844 (2006).
Viewing the evidence in favor of the verdict, the record shows the following. For years, Legacy has been a large volume developer and builder of single-family houses in Fulton County. On April 28 and June 26, 2006, Fulton County cited Legacy with violating the Fulton County Soil Erosion and Sedimentation Control Ordinance of 2005, which is codified at Fulton County Code of *391 Ordinances Sections 26-35 through 26-48 ("the ordinance"). The ordinance requires such erosion prevention and sedimentation containment measures as silt fences or barriers, sediment retention basins or ponds, and mulching. By letter dated November 30, 2006, Nick Ammons, as the acting deputy director of the Fulton County Department of Environment and Community Development, notified Legacy that, as a result of the two violations in 2006, "Fulton County intends to enforce [Section] 26-40(b)(8) of the Fulton County Code pertaining to Land Disturbance Permit applications by Legacy." Section 26-40(b)(8) of the ordinance provides, "If a permit [applicant] has had two or more violations of previous permits, this article, or the Erosion and Sedimentation Act, as amended, within three years prior to the date of filing of the application under consideration, Fulton County shall deny the permit application." Ammons' letter went on to say, "[d]ue to [Legacy's] having two or more violations of previous permits, [Fulton County] shall deny land disturbance permit applications for a period of three years from the date of [Legacy's] permit violation of April 28, 2006. Applications received prior to April 28, 2009 shall be denied." Without a land disturbance permit, Legacy would be legally prohibited from building any house in Fulton County.
Legacy filed this action soon after receiving the debarment notice. In its complaint, Legacy sought a declaration that Section 26-40(b)(8) of the ordinance is void on its face and as applied, in that "it bans Legacy from doing business in Fulton County without first affording Legacy with notice and an opportunity to challenge the citations issued against it, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 1, Paragraph 1 of the Georgia Constitution of 1983" and in that it fails to define the term "violation" and conflicts with other provisions that concern the same subject matter. Legacy claimed that it was uncertain whether, pursuant to the allegedly void ordinance, Fulton County would deny its future applications for land disturbance permits, as the ordinance purports to require. Legacy alleged that it must spend hundreds of thousands of dollars on engineering and other site preparation work to be in a position to submit any particular permit application. As a result, Legacy claimed, to avoid jeopardizing its interests, it needed direction from the court regarding the enforceability of the ordinance.[1] Legacy also sought an injunction prohibiting enforcement of Section 26-40(b)(8) of the ordinance.
In addition to its claims for a declaratory judgment and an injunction, Legacy claimed that Fulton County singled it out for harsher treatment than other similarly situated individuals or entities, that is, permit applicants that have had two or more violations of previous permits. Legacy sought damages, under 42 U.S.C. § 1983[2] and state law, for the alleged "violation of Legacy's rights to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution and Article 1, Section 1, Paragraph 2 of the 1983 Constitution of Georgia." Finally, Legacy sought its attorney fees "[p]ursuant to 42 U.S.C. § 1988 and OCGA § 13-6-11."
The record shows that, on May 15, 2008, just before the trial began, Fulton County formally rescinded the November 30, 2006 notice of debarment. It then argued to the court that Count 1 of Legacy's complaint, seeking a declaratory judgment that the ordinance *392 was void, was moot. The trial court agreed and denied Legacy's request for a declaratory judgment. The trial court determined that the only claim for jury resolution was Legacy's claim for damages arising from the alleged equal protection violation, including attorney fees as a part of the damages pursuant to OCGA § 13-6-11. With the parties' consent, the trial court determined that Legacy's claim for attorney fees pursuant to 42 USC § 1988(b)[3] would be presented to the court for disposition after the verdict.
After the presentation of the evidence at trial, Legacy requested a total award of $203,363, comprised of $53,271 in engineering and environmental expenses for two projects it abandoned after receiving the November 30, 2006 debarment notice, and $150,091 in attorney fees incurred in bringing the instant action to trial. On Legacy's "claim for damages," the jury returned a verdict "in favor of [Legacy] in the amount of $180,850 against Fulton County."
Case No. A09A0371
1. Fulton County contends that Legacy's federal law claim for damages, in which Legacy alleged that Fulton County violated its right to equal protection under the United States Constitution, required proof that Fulton County deprived Legacy of a valid property right. Fulton County argues that a land developer can have no vested property interest in land disturbance permits that it may seek to obtain in the future. As a result, Fulton County contends that the trial court erred in denying its motion for a directed verdict on Legacy's equal protection claim.
Fulton County's argument is based on a faulty premise. The identification of a property interest is not a required element of an equal protection claim
because the text of the Fourteenth Amendment demonstrates that property and liberty interests are irrelevant to equal protection claims. Of the three clauses included in the second sentence of the Amendment's first sectionthe privileges and immunities clause, the due process clause, and the equal protection clauseonly the due process clause alludes to "property" and "liberty." See U.S. Const. amend. XIV, § 1.... In contrast, the applicability of the equal protection clause is not limited to only those instances in which property and liberty interests are implicated. Rather, to properly plead an equal protection claim, a plaintiff need only allege that[,] through state action, similarly situated persons have been treated disparately.
(Citations omitted.) Thigpen v. Bibb County, 223 F.3d 1231, 1236-1237(II)(A) (11th Cir. 2000). Here, Legacy complained that, although other developers were similarly situated in terms of violating permits, Fulton County intentionally and discriminatorily singled Legacy out for harsher treatment under the law. Because Legacy was not required to prove that Fulton County deprived it of a valid property right, Fulton County's argument lacks merit.
2. Fulton County contends that Ammons did not have final policymaking authority for Fulton County with regard to land disturbance permit applications. Specifically, Fulton County contends that Legacy had a meaningful opportunity to appeal the debarment notice pursuant to Section 26-47(a) of the ordinance. As a result, it contends, it cannot be held liable for any damages caused by Ammons' conduct in issuing the debarment notice. Based on this, Fulton County argues that the trial court erred in denying its motion for a directed verdict on Legacy's equal protection claim.
To recover damages under 42 U.S.C. § 1983, Legacy was required to prove that the county employee who issued the debarment notice had final policymaking authority for Fulton County with regard to land disturbance permit applications.[4] "[I]n *393 assessing whether a governmental decision maker is a final policy maker, we look to whether there is an actual opportunity for meaningful review." (Citation and punctuation omitted.) Holloman v. Harland, 370 F.3d at 1252, 1292(V)(B) (11th Cir. 2004). The ordinance at issue expressly provides for the review of certain other types of decisions (specifically, stop work orders, the suspension, revocation, or modification of already-issued permits, and conditional grants of permits).[5] A notice that Fulton County intends to deny future permit applications, however, does not come within the express terms of the appeal right. Fulton County, therefore, has not shown that Legacy had a right to appeal Ammons' prospective decision to deny Legacy's permit applications.[6]
Accordingly, the evidence authorized a finding that Ammons had final policymaking authority to deny Legacy's land disturbance permit applications for a period of three years. See Rookard v. Health & Hospitals Corp., 710 F.2d 41, 46 (2d Cir.1983) (reversing dismissal of employee's § 1983 claim where there was evidence that officials who transferred and later fired employee had exercised final policymaking authority). It follows that the trial court did not err in denying Fulton County's motion for a directed verdict on Legacy's federal equal protection claim.
3. Fulton County contends that there was no evidence that it waived its sovereign immunity with regard to Legacy's state law claim for damages, in which Legacy alleged that Fulton County violated its right to equal protection under the Georgia Constitution. As a result, Fulton County contends, the trial court erred in denying its motion for a directed verdict on Legacy's state claim. The record shows, however, that Legacy's state equal protection claim was not submitted to the jury. Regardless of whether Legacy withdrew the claim or whether the trial court tacitly granted Fulton County's motion for a directed verdict, this argument is moot.
4. Fulton County contends that Legacy could not prevail on any state law claim for damages, and, therefore, the evidence did not authorize the jury to award Legacy attorney fees under OCGA § 13-6-11.[7] As a result, Fulton County contends, the trial court erred in denying its motion for a directed verdict on Legacy's claim for fees under that Code section.
Fulton County's argument is based on a faulty premise. There is no requirement that a viable state law claim exist in *394 order for the jury to award litigation expenses pursuant to OCGA § 13-6-11. Rather, "OCGA § 13-6-11 constitutes a vehicle for the collection of attorney fees" even when only a federal law claim for damages is submitted to the finder of fact. Nissan Motor Acceptance Corp. v. Stovall Nissan, 224 Ga. App. 295, 300(4), 480 S.E.2d 322 (1997). Thus, the jury could award Legacy its attorney fees as an element of the damages it awarded on Legacy's federal equal protection claim, regardless of whether Legacy could prevail on any state law claim for damages. Fulton County has shown no error.
5. Fulton County contends that, before trial, Legacy agreed to submit the issue of its attorney fees to the court after the jury returned a verdict, rather than to the jury, and that it did not present evidence of its fees at trial. As a result, Fulton County contends, the trial court erred in submitting the issue of Legacy's attorney fees to the jury. Contrary to Fulton County's position, however, the record shows that Legacy agreed to submit its claim for fees pursuant to 42 U.S.C. § 1988(b) to the court after the verdict; the agreement did not pertain to Legacy's claim for fees under OCGA § 13-6-11. In addition, Legacy submitted evidence at trial that its attorney fees had reached $150,091 before trial, and the issue was submitted to the jury. This argument lacks merit.
Case No. A09A0372
6. Legacy contends that the issue of whether Fulton County's ordinance violates the due process protections of the United States and Georgia Constitutions was not rendered moot by Fulton County's withdrawal of the debarment notice issued to Legacy. As a result, Legacy contends, the trial court erred in failing to consider on the merits its petition for a declaratory judgment that the ordinance is unconstitutional. We agree.
Despite the fact that Fulton County has withdrawn the November 30, 2006 debarment notice, the ordinance remains on the books. As long as Legacy has two or more violations of previous permits or the ordinance within the three years preceding any future permit application, the ordinance provides that "Fulton County shall deny the permit application." While a petition seeking a declaration that a particular debarment notice was void would presumably be rendered moot by the withdrawal of the notice, Legacy did not seek a declaration that the November 30, 2006 debarment notice was void. Instead, Legacy sought a declaration that the ordinance itself is unconstitutional. This challenge to the overall enforceability of the ordinance, which is still the law, was not rendered moot by the withdrawal of the debarment notice. Accordingly, the trial court erred in failing to consider on the merits Legacy's petition for a declaratory judgment. We vacate the trial court's judgment to the extent it denied as moot Legacy's petition for a declaratory judgment and remand for further proceedings.
Judgment affirmed in part and vacated in part, and case remanded.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1] To support a petition for a declaratory judgment,
[t]he plaintiff must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest. A declaratory judgment may not be granted in the absence of a justiciable controversy.
(Citations and punctuation omitted.) Chattahoochee Bancorp v. Roberts, 203 Ga.App. 405, 406, 416 S.E.2d 875 (1992). See also OCGA § 9-4-2(a) (authorizing the superior courts "[i]n cases of actual controversy ... to declare rights and other legal relations of any interested party petitioning for such declaration").
[2] person who, under color of any statute, ordinance, regulation, custom, or usage of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law [or] suit in equity[.]
42 U.S.C. § 1983.
[3] In any action or proceeding to enforce a provision of 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[.]" 42 U.S.C. § 1988(b).
[4] municipal governing body may be held liable [under 42 U.S.C. § 1983] for acts or policies of individuals to whom it delegated final decisionmaking authority in a particular area. A member or employee of a governing body is a final policy maker only if his decisions have legal effect without further action by the governing body, and if the governing body lacks the power to reverse the member or employee's decision. To determine if someone is a final policy maker, [the courts] look not only to state and local positive law, but also custom and usage having the force of law.
(Citations and punctuation omitted.) Holloman v. Harland, 370 F.3d 1252, 1292(V)(B) (11th Cir. 2004).
[5] The ordinance provides as follows:
The issuance of a stop work order, as well as the suspension, revocation, modification, or grant with condition of a permit by Fulton County upon finding that the holder is not in compliance with the approved erosion and sediment control plan; or that the holder is in violation of permit conditions; or that the holder is in violation of this article shall entitle the person submitting the plan or holding the permit to a hearing before the Fulton County Board of Commissioners within 30 days after receipt by the director of written request for appeal.
Fulton County Code of Ordinances Section 26-47(a).
[6] We note that Fulton County's argument on appeal that Section 26-47(a) of the ordinance granted Legacy the right to appeal the debarment notice conflicts with Fulton County's own actions at the time. The record shows that, after receiving the debarment notice, Legacy attempted to appeal the notice pursuant to Section 26-47(a) and submitted a timely request for a hearing within 30 days before the Fulton County commissioners. Fulton County failed to provide Legacy the hearing or to otherwise review Ammons' decision.
[7] "The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them." OCGA § 13-6-11. See Brown v. Baker, 197 Ga.App. 466, 467(2), 398 S.E.2d 797 (1990) ("OCGA § 13-6-11 does not create an independent cause of action. That statute merely establishes the circumstances in which a plaintiff may recover the expenses of litigation as an additional element of his damages.") (citation omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322750/ | 382 S.C. 490 (2009)
676 S.E.2d 714
Edward C. CRIBB, Appellant,
v.
Dean SPATHOLT and Clark Callahan, in their individual capacities, and Boundary House, Inc., Respondents.
No. 4520.
Court of Appeals of South Carolina.
Heard January 6, 2009.
Decided March 24, 2009.
*494 Henrietta U. Golding and Amanda A. Bailey, both of Myrtle Beach, for Appellant.
Arthur E. Justice, Jr. and Reginald W. Belcher, of Florence, for Respondents.
LOCKEMY, J.
Edward C. Cribb appeals the circuit court's grant of Dean Spatholt, Clark Callahan, and Boundary House's Rule 12(b)(2), SCRCP, motion to dismiss for lack of personal jurisdiction. We reverse.
*495 FACTS/PROCEDURAL BACKGROUND
Spatholt and Callahan own and operate Boundary House (Boundary), a seafood restaurant. Boundary is a North Carolina company organized under North Carolina law with its principal place of business located at 1045 River Road, Calabash, North Carolina. Spatholt serves as Boundary's president and treasurer, while Callahan serves as vice-president and secretary. Both serve on Boundary's board of directors.
Prior to Boundary's opening, Spatholt and Callahan approached Edward and his son, Buddy Cribb, to assist with the business. According to Buddy's affidavit and complaint, Spatholt and Callahan first approached him in December of 2003, while he was working at the Carolina Roadhouse in Myrtle Beach, South Carolina. It appears Buddy merely spoke with Spatholt and Callahan about Boundary and did not enter into any type of contract with them in 2003. Later, Spatholt and Callahan approached Edward to assist with the planning and operation of Boundary. According to Edward, he met with Callahan at the Carolina Roadhouse in Myrtle Beach twice in January of 2004 to negotiate and discuss restaurant plans. Thereafter, Edward entered into a contract with Spatholt and Callahan to work as a consultant for Boundary. Under the terms of the contract, Spatholt and Callahan agreed to pay Edward $35,000 until Boundary opened and thereafter 5% of Boundary's gross pre-tax revenues. Additionally, Edward agreed to help recruit his son, Buddy, as Boundary's general manager.
In early 2004, Edward contacted Buddy from Myrtle Beach about the general manager position at Boundary. Around May 2005, Buddy met with Spatholt and Callahan and discussed the potential employment. Shortly thereafter, Spatholt and Callahan offered, and Buddy accepted, the general manager position.
On September 12, 2006, Edward Cribb sued Callahan and Spatholt in their individual capacities and Boundary. In his complaint, Edward maintained Spatholt unilaterally terminated him on August 14, 2006, and alleged the following causes of action: breach of contract, promissory estoppel, violation of the South Carolina Payment of Wages Act, and negligent misrepresentation. Buddy Cribb also filed suit. Collectively, *496 Boundary, Callahan, and Spatholt moved to dismiss both cases for lack of personal jurisdiction, pursuant to Rule 12(b)(2), SCRCP. In a preliminary order, the circuit court granted the motion to dismiss. In a final order, the circuit court dismissed the case with prejudice after finding South Carolina lacked specific and general jurisdiction over Boundary, as a business, and over Callahan and Spatholt, in their individual capacities.
As to general jurisdiction the circuit court held Boundary, Callahan, and Spatholt "maintained no continuous and systematic general business contacts with South Carolina that were so substantial and of such a nature to justify allowing [Edward] to proceed with these lawsuits in this [c]ourt." In regards to specific jurisdiction, the circuit court found Boundary, Callahan, and Spatholt "did not engage in any of the requisite conduct that the long arm statute references." Further, the circuit court found subjecting Boundary, Callahan, and Spatholt to litigation in South Carolina violated due process because 1) the litigation would be unfair and unreasonable to them; 2) South Carolina had no viable interest in adjudicating a dispute involving conduct of a restaurant operating solely in Brunswick County, North Carolina; and 3) Edward Cribb knew or reasonably should have known that Boundary operated exclusively in North Carolina; thus, requiring Edward to adjudicate the lawsuit there would not be unfair. Accordingly, the circuit court dismissed Edward Cribb's lawsuit with prejudice. This appeal follows.
ISSUE
Did the circuit court err in dismissing Edward Cribb's case after finding it lacked personal jurisdiction over Boundary as a business entity and Callahan and Spatholt individually?
STANDARD OF REVIEW
The question of personal jurisdiction over a nonresident defendant is one which must be resolved upon the facts of each particular case. State v. NV Sumatra Tobacco Trading, Co., 379 S.C. 81, 88, 666 S.E.2d 218, 221 (2008). The circuit court's decision should be affirmed unless unsupported by the evidence or influenced by an error of law. Cockrell v. Hillerich & Bradsby Co., 363 S.C. 485, 491, 611 S.E.2d 505, *497 508 (2005). "At the pretrial stage, the burden of proving personal jurisdiction over a nonresident is met by a prima facie showing of jurisdiction either in the complaint or in affidavits." Id. "When a nonresident defendant attacks the allegations of a complaint based on jurisdiction, the court is not confined to the allegations of the complaint but may resort to affidavits or other evidence to determine jurisdiction." Power Prods. & Servs. Co. v. Kozma, 379 S.C. 423, 430, 665 S.E.2d 660, 664 (Ct.App.2008).
PERSONAL JURISDICTION LAW
"The concept of jurisdiction refers to the authority of a court over a particular person (personal jurisdiction) or the authority of a court to entertain a particular action (subject matter jurisdiction), but the concept does not refer to the validity of the claim on which an action against a person is based." Boan v. Jacobs, 296 S.C. 419, 421, 373 S.E.2d 697, 698 (Ct.App.1988). In the present case, we are concerned with personal, rather than subject matter jurisdiction. Personal jurisdiction is exercised as "general jurisdiction" or "specific jurisdiction." Coggeshall v. Reprod. Endocrine Assocs. of Charlotte, 376 S.C. 12, 16, 655 S.E.2d 476, 478 (2007).
I. General Jurisdiction
Section 36-2-802 of the South Carolina Code (2003) governs general jurisdiction and states: "A court may exercise personal jurisdiction over a person domiciled in, organized under the laws of, doing business, or maintaining his or its principal place of business in, this State as to any cause of action." A court may assert general jurisdiction if the defendant has an "enduring relationship" with the forum state. Cockrell v. Hillerich & Bradsby Co., 363 S.C. 485, 495, 611 S.E.2d 505, 510 (2005). If an individual has an "enduring relationship" with the State, he may be sued here even if the cause of action did not arise in South Carolina. See id. ("General jurisdiction attaches even when the nonresident defendant's contacts with the forum state are not directly related to the cause of action . . . ."). To satisfy the "enduring relationship" requirement of general jurisdiction, the defendant's contacts must be "continuous and systematic" as well as "so substantial and of such a nature as to justify suit against *498 the defendant on causes of action arising from dealings entirely different from those activities." See id. (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 318, 66 S. Ct. 154, 90 L. Ed. 95 (1945)); Coggeshall, 376 S.C. at 17, 655 S.E.2d at 479 ("An enduring relationship is indicated by contacts that are substantial, continuous, and systematic."). Furthermore, the defendant's contacts with the forum must satisfy the due process clause. Cockrell, 363 S.C. at 495, 611 S.E.2d at 510.
II. Specific Jurisdiction
Courts may also have specific jurisdiction over a cause of action arising from a defendant's contacts with the state pursuant to the long-arm statute. State v. NV Sumatra Tobacco Trading, Co., 379 S.C. 81, 88, 666 S.E.2d 218, 222 (2008). Under the long arm statute, a court may exercise personal jurisdiction over an individual acting directly or through an agent for causes of action arising from the individual's:
(1) transacting any business in this State;
(2) contracting to supply services or things in the State;
(3) commission of a tortious act in whole or in part in this State;
(4) causing tortious injury or death in this State by an act or omission outside this State if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State;
(5) having an interest in, using, or possessing real property in this State;
(6) contracting to insure any person, property, or risk located within this State at the time of contracting;
(7) entry into a contract to be performed in whole or in part by either party in this State; or
(8) production, manufacture, or distribution of goods with the reasonable expectation that those goods are to be used or consumed in this State and are so used or consumed.
S.C.Code Ann. § 36-2-803 (Supp.2008). Traditionally, our courts have conducted a two-step analysis to determine whether specific jurisdiction is proper by 1) determining if the long arm statute applies and 2) determining whether the nonresident's *499 contacts in South Carolina are sufficient to satisfy due process requirements. Power Prods. & Servs. Co. v. Kozma, 379 S.C. 423, 431, 665 S.E.2d 660, 664 (Ct.App.2008). However, a more recent trend compresses the analysis into a due process assessment only. Id. at 431, 665 S.E.2d at 664-65; see also Cockrell, 363 S.C. at 491, 611 S.E.2d at 508 ("Because South Carolina treats its long-arm statute as coextensive with the due process clause, the sole question becomes whether the exercise of personal jurisdiction would violate due process.").
Due process requires a defendant possess minimum contacts with the forum state such that maintenance of suit does not offend traditional notions of fair play and substantial justice. Coggeshall, 376 S.C. at 16, 655 S.E.2d at 478. "Further, the due process requirement mandates the defendant possess sufficient minimum contacts with the forum state such that he could reasonably anticipate being haled into court there." Power Prods., 379 S.C. at 431-32, 665 S.E.2d at 665.
Courts apply a two-pronged analysis when determining whether a defendant possesses minimum contacts with the forum state such that maintenance of suit does not offend traditional notions of fair play and substantial justice. Id. at 432, 665 S.E.2d at 665. "The court must (1) find that the defendant has the requisite minimum contacts with the forum, without which, the court does not have the `power' to adjudicate the action and (2) find the exercise of jurisdiction is reasonable or fair." Id. To support a finding of due process, both prongs must be satisfied. Id.
To satisfy the power prong, the court must find the defendant directed his activities to residents of South Carolina and that the cause of action arises out of or relates to those activities. Moosally v. W.W. Norton & Co., Inc., 358 S.C. 320, 331-32, 594 S.E.2d 878, 884 (Ct.App.2004). The Moosally court stated:
It is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. The "purposeful availment" requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts. Whether the constitutional *500 requirement of minimum contacts has been met depends on the facts of each case.
358 S.C. at 332, 594 S.E.2d at 884-85 (internal citations omitted). Finally, under the fairness prong, the court must consider the following factors: (1) the duration of the defendant's activity in this State; (2) the character and circumstances of its acts; (3) the inconvenience to the parties; and (4) the State's interest in exercising jurisdiction. NV Sumatra Tobacco Trading, Co., 379 S.C. at 91, 666 S.E.2d at 223.
ARGUMENTS AND ANALYSIS
I. Personal Jurisdiction of Edward Cribb's Claims Against Boundary, and Callahan and Spatholt individually
Edward Cribb argues the circuit court erred in dismissing his suit for lack of personal jurisdiction over Boundary as a business entity, and Callahan and Spatholt individually. He maintains the long arm statute applies to Boundary, Callahan, and Spatholt based on the following activities: (1) transacting any business in this State; (2) causing tortious injury or death in this State by an act or omission outside this State if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State; and (3) entry into a contract to be performed in whole or in part by either party in this State.[1] Moreover, Edward argues Boundary House possessed the requisite minimum contacts to satisfy due process. Upon examination of Edward Cribb's contract with Boundary and Boundary's presence in the state, we believe Edward met his burden at this stage in the proceeding to defeat a 12(b)(2) motion to dismiss for lack of personal jurisdiction over Boundary, Callahan, and Spatholt.
A. Boundary as a Business Entity
Based on our courts' recent trend of compressing a personal jurisdiction analysis into a due process assessment only, our sole question is whether the exercise of personal jurisdiction *501 would violate due process. Cockrell v. Hillerich & Bradsby Co. 363 S.C. 485, 491, 611 S.E.2d 505, 508 (2005) ("Because South Carolina treats its long-arm statute as coextensive with the due process clause, the sole question becomes whether the exercise of personal jurisdiction would violate due process."); Power Prods., 379 S.C. 423, 665 S.E.2d 660 (where our court assessed only a due process analysis to determine whether specific jurisdiction was proper). Accordingly, we must determine whether Boundary possesses minimum contacts with South Carolina so as not to offend due process. Under the two-pronged analysis, we must determine whether Boundary (1) had the requisite minimum contacts with South Carolina, without which, the court does not have the "power" to adjudicate the action, and (2) find the exercise of jurisdiction is reasonable or fair.
In support of Edward's assertion that Boundary possesses minimum contacts with South Carolina, he argues in execution of his contract with Boundary he was to provide planning and operation services. Edward maintains Boundary directed its activities toward South Carolina by soliciting and contracting with him to assist with designing and operating Boundary. In his affidavit Edward specifically maintains he: met with Spatholt and Callahan to discuss plans for Boundary while in Myrtle Beach; recruited Buddy as Boundary's general manager at Callahan's request from Myrtle Beach; met with Callahan and Spatholt several times at architect William R. Halasz's offices in Myrtle Beach to discuss and review prospective drawings, design, and layout of Boundary; contacted a Myrtle Beach restaurant planner who drafted proposed plans for the layout of Boundary's kitchen; met with representatives from Jacobi-Lewis Company to discuss the layout of Boundary's kitchen and revised and made changes to the layout at the meeting; closed Aspen Grill and thereafter Boundary hired former employees from Aspen Grill. As such, Edward contends Boundary purposefully availed itself of the benefits of doing business in South Carolina so that it could reasonably anticipate being haled into court here.
Our courts have held entering into a contract or mere negotiations inside South Carolina without more is not enough to establish minimum contacts. Loyd & Ring's Wholesale Nursery, Inc. v. Long & Woodley Landscaping & Garden *502 Ctr., Inc., 315 S.C. 88, 92, 431 S.E.2d 632, 635 (Ct.App.1993) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478-79, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)). In Loyd, this court stated: "An individual's contract with an out-of-state party cannot alone establish sufficient minimum contact's in the other party's home forum." Id. Furthermore the court found: "The parties' prior negotiations, the consequences of their actions as contemplated by the parties, the terms of the contract, and the parties' actual course of dealings must be considered in evaluating whether a defendant purposefully established minimum contacts within the forum." Id.
Though Edward knew Callahan and Spatholt were planning on opening Boundary in Calabash, North Carolina, in performing his duties under his contract, Edward met with contacts in Myrtle Beach, South Carolina. In fact, Boundary admits it hired some service providers from Horry County to assist with planning the construction of the Restaurant in Calabash, North Carolina. Therefore, it appears Boundary, when forming its contract with Edward, contemplated Edward would use his Myrtle Beach contacts, including recruiting his son Buddy, to perform his duties of planning and designing Boundary. Therefore, because part of Edward's contract was to be performed in South Carolina, more than "mere negotiations" took place here.
This court has held South Carolina has jurisdiction over a party who entered into a contract that was to be partly performed within the State. Atl. Wholesale Co. v. Solondz, 283 S.C. 36, 37, 320 S.E.2d 720, 721 (Ct.App.1984). In Solondz, a New York resident, agreed to purchase silver from Atlantic Wholesale. Id. However, when Solondz later refused to pay for the silver, Atlantic Wholesale brought suit in South Carolina. Id. Our court held South Carolina had jurisdiction over the suit because "the evidence presented at the hearing on the motion to dismiss clearly show[ed] Solondz entered into a contract that was to be partly performed in South Carolina." Id. at 38, 320 S.E.2d at 722. Moreover this court found adjudicating the case within the State would not offend due process even though "Solondz ha[d] engaged in little activity in South Carolina . . . [because] the length and duration of the activity of the nonresident in this State is not deemed important and need only be minimal when the plaintiff lives in the *503 forum state and the cause of action arose out of the defendant's activities in this State." Id. at 39, 320 S.E.2d at 722 (internal citation omitted) (emphasis added).
We believe personal jurisdiction over Boundary is proper at this stage in the proceeding. Boundary negotiated Edward's contract in South Carolina, and it was within its contemplation that Edward would perform his part of the contract here. In fact, Boundary admitted hiring service providers from Horry County to assist with planning the construction of the restaurant in Calabash, North Carolina. Because the restaurant was not yet in existence at the time the contract was entered into, one would logically expect planning to occur at the most convenient location for the parties. Therefore, because part of Edward's contract was to be performed within South Carolina and because Edward's cause of action arose from a breach of that contract, we believe Boundary has sufficient minimum contacts with South Carolina such that it would expect to be haled into court here. Accordingly, we find Edward met his pretrial prima facie burden of demonstrating personal jurisdiction over Boundary in his complaint and affidavits. Cockrell v. Hillerich & Bradsby Co., 363 S.C. 485, 491, 611 S.E.2d 505, 508 (2005). Therefore, Edward met the requirements of the power prong.
Lastly, we believe the fairness prong of the minimum contacts test is met as well. To reiterate, courts look at the following four factors in determining whether exercise of jurisdiction is reasonable or fair: (1) the duration of the defendant's activity in this State; (2) the character and circumstances of its acts; (3) the inconvenience to the parties; and (4) the State's interest in exercising jurisdiction. State v. NV Sumatra Tobacco Trading, Co., 379 S.C. 81, 91, 666 S.E.2d 218, 223 (2008).
Under the first prong, Boundary's activity within the State was continuous. Edward maintains Callahan and Spatholt, as agents of Boundary, came to Myrtle Beach on several occasions to meet and discuss plans for opening Boundary with South Carolina businesses. Further, Edward, on behalf of Boundary, met with several Myrtle Beach contacts in performing his part of the contract. Therefore, the duration of Edward's activity in South Carolina was also continuous. *504 Second, the character and circumstances of the negotiations and meetings appear essential to Edward fulfilling his part of the contract. It appears several businesses within South Carolina were contacted and potentially hired to perform several tasks in starting up Boundary. Third, it would not significantly inconvenience either party to adjudicate the suit in South Carolina given Boundary's proximity.
Finally, South Carolina has an interest in providing redress for its citizens. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985) ("A State generally has a `manifest interest' in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors."); Springmasters, Inc. v. D & M Mfg., 303 S.C. 528, 533, 402 S.E.2d 192, 195 (Ct.App.1991) ("South Carolina has a legitimate interest in providing its citizens a forum to resolve claims for breach of contract."). Further, enough business was conducted within the state to warrant adjudication of the suit here. Contra Aviation Assocs. & Consultants, Inc. v. Jet Time, Inc., 303 S.C. 502, 509, 402 S.E.2d 177, 181 (1991) ("[W]hile South Carolina has an interest in providing redress for its citizens, that interest is diminished when no business was transacted in this State and any contract formed was not to be performed in this State."). Because both prongs of the minimum contact analysis are met, adjudication of Edward's suit against Boundary in South Carolina would not offend due process.
B. Callahan and Spatholt Individually
For reasons similar to the ones stated above, we believe Callahan and Spatholt individually possess enough minimum contacts with South Carolina so as not to offend due process. These contacts include the following: Callahan's 2003 meeting with Buddy Cribb at the Carolina Roadhouse in Myrtle Beach regarding Buddy's interest in helping start a restaurant; Callahan and Spatholt's two 2004 meetings with Edward Cribb at the Carolina Roadhouse in Myrtle Beach to discuss his interest in starting a new restaurant; and Callahan's meeting at Architect William R. Halasz's office in Myrtle Beach. Furthermore, Boundary filed its Articles of Incorporation on June 23, 2004, and according to Edward's complaint, Boundary opened for business on November 15, 2005. Therefore, *505 given Boundary was not yet in existence when Edward first began acting as a consultant, he was acting on Callahan and Spatholt's behalf rather than on Boundary's behalf in performing part of his contract. See ML-Lee Acquisition Fund, L.P. v. Deloitte & Touche, 327 S.C. 238, 242, 489 S.E.2d 470, 472 (1997) ("[A]uthorized acts of an agent are the acts of the principal."). Based on Callahan and Spatholt's contacts, the power prong of the minimum contacts analysis is met.
Moreover, the fairness prong is also satisfied. Callahan and Spatholt admit to hiring South Carolina businesses and meeting with them in Myrtle Beach. Second, the character and circumstances of their negotiations and meetings here appear essential to Boundary's successful opening. Third, it would not significantly inconvenience either party to adjudicate the suit in South Carolina given Boundary's proximity. Moreover, given our decision regarding personal jurisdiction over Boundary, Callahan and Spatholt will likely be in South Carolina on Boundary's behalf to defend Edward's suit. Finally, South Carolina has an interest in providing redress for its citizens and enough business was conducted within the state to warrant adjudication of the suit here. The circuit court's dismissal of Edward's suit for lack of personal jurisdiction in regards to Boundary as a business entity and Callahan and Spatholt individually is therefore
REVERSED.
HUFF and THOMAS, JJ., concur.
NOTES
[1] These activities correspond to sections 1, 4, and 7 of the long arm statute, respectively. S.C.Code Ann. § 36-2-803 (Supp.2008). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322860/ | 609 S.E.2d 259 (2005)
Frank A. MOODY, II, Plaintiff-Appellee,
v.
ABLE OUTDOOR, INC.; PNE Media Holdings, L.L.C.; PNE/Able, L.L.C.; PNE Media, L.L.C.; Braun Insurance Group of the Carolinas, Inc.; and Morgan & Morgan Ltd., Defendants-Appellants.
No. COA03-1493.
Court of Appeals of North Carolina.
March 15, 2005.
Kelly & Rowe, P.A., by E. Glenn Kelly, Asheville, for plaintiff-appellee.
McGuire, Wood & Bissette, P.A., by T. Douglas Wilson, Jr. Asheville, for defendants-appellants.
Kilpatrick Stockton, L.L.P., by Stephen E. Husdon, pro hoc vice, Atlanta, GA, for defendants-appellants.
*260 BRYANT, Judge.
Able Outdoor, PNE Media Holdings, PNE/Able, and PNE Media, (collectively PNE defendants) appeal from a 14 August 2003 order denying defendant's motion for summary judgment.
In February 1999, Frank A. Moody, II (plaintiff) sold his billboard company, Able Outdoor, to PNE. Able Outdoor's three-year lease to occupy the building owned by plaintiff was assigned to PNE. One of the lease provisions required PNE to maintain fire insurance on the "buildings, improvements, and fixtures" or notify plaintiff in the event insurance coverage ceased. In January 2001, PNE ceased using the leased building and abandoned the space, since the PNE division occupying Moody's space had been sold to another billboard company.
In February 2001, fire insurance for the building was canceled. Another billboard company, SMS Media, L.L.C., operated by Julie Snipes then moved into the building. Snipes obtained fire insurance to cover the building and its contents. In November 2001, plaintiff contacted Braun Insurance about procuring fire insurance. Shortly thereafter and about the time plaintiff had listed his building for sale with a real estate agent, a fire occurred, damaging the building.
Plaintiff has brought three separate actions arising out of his business relationship with PNE defendants. Plaintiff filed a lawsuit (Case I) against PNE defendants on 24 May 2001 for the following: breach of contract (based on failure to pay rent from August 1999 to December 1999); fraud (based on misrepresentations regarding the timing and proceeds from a public stock offering of PNE Holdings); unfair and deceptive trade practices (based on the sale of Able Outdoor assets to be used to pay PNE Media Holdings' debts); and breach of employment contract (based on failure to pay alleged bonuses, vacation benefits and contract termination fees). Defendants counterclaimed. Almost two years later, on 4 February 2003, all claims and counterclaims were dismissed with prejudice.
On 28 January 2002 plaintiff filed a second lawsuit, this one in federal court (Case II) against PNE Media Holdings and several individual defendants initially alleging securities fraud and breach of contract based on an alleged violation of a stock purchase agreement. Defendants counterclaimed. The matter was sent to arbitration. Plaintiff then amended his complaint to add claims for: fraud (based on violations of state and federal securities law); breach of contract (based on failure to pay plaintiff pursuant to the lease agreement for rent and for the purchase of Able Outdoor); breach of fiduciary duty (for conduct including breach of lease agreement and canceling fire insurance without notifying plaintiff); fraud and misrepresentation; negligence and negligent misrepresentation; respondeat superior; and breach of the implied covenant of good faith and fair dealing. The claims were arbitrated and a judgment entered on 3 June 2003 dismissing all claims, with prejudice.
The present action was filed on 25 February 2002 (present action) against Case I PNE defendants (Able Outdoor, PNE Media Holdings, PNE/Able, and PNE Media); Braun Insurance Group (plaintiff's insurance broker), and Morgan & Morgan (PNE defendants' insurance broker). In the present action, plaintiff alleged PNE defendants were in breach of contract (based on allowing the fire insurance policy to lapse) and had *261 committed unfair and deceptive trade practices. Plaintiff alleged Morgan & Morgan breached the lease agreement and breached the fiduciary duty owed to plaintiff by canceling the insurance and failing to notify him accordingly. Plaintiff alleged Braun Insurance Group breached the lease agreement and the fiduciary duty owed to plaintiff by listing Julie Snipes, instead of plaintiff, as policy holder.
In Case I, pursuant to a Settlement Agreement entered on 4 February 2003, the parties agreed to jointly dismiss all claims and counterclaims with prejudice. In Case II, plaintiff's and defendants' claims and counterclaims were resolved through arbitration. Most significantly, in Case II plaintiff's claim for breach of fiduciary duty (for conduct including breach of the lease agreement and canceling the fire insurance without notifying plaintiff) was dismissed with prejudice in an order confirming the arbitration award dated 3 June 2003. In the present action PNE defendants filed a motion for summary judgment based on res judicata which was denied on 14 August 2003.
PNE defendants appeal.
The dispositive issue is whether the trial court erred in denying defendants' motion for summary judgment. Because we find that summary judgment should have been granted based on res judicata, we reverse the decision of the trial court.
The denial of a motion for summary judgment is interlocutory and not immediately appealable unless it affects a substantial right. N.C. Gen.Stat. § 7A-27 (2003). The denial of a motion for summary judgment on the basis of res judicata affects a substantial right and thus, entitles a party to an immediate appeal. Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 160 (1993). Therefore, PNE defendants' appeal is properly before this Court.
In reviewing a superior court order denying a motion for summary judgment, the standard of review is de novo. Falk Integrated Techs., Inc. v. Stack, 132 N.C.App. 807, 809, 513 S.E.2d 572, 574 (1999). Such review requires a two-step analysis whereby "[s]ummary judgment is appropriate if (1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law." Stephenson v. Warren, 136 N.C.App. 768, 771-72, 525 S.E.2d 809, 811-12 (2000). "Once the movant makes the required showing, the burden shifts to the non-moving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, establishing at least a prima facie case at trial." Id. "Summary judgment is appropriate for the defending party when (1) an essential element of the other party's claim or defense is non-existent; (2) the other party cannot produce evidence to support an essential element of its claim or defense; or (3) the other party cannot overcome an affirmative defense which would bar the claim." Caswell Realty Assocs. I, L.P. v. Andrews Co., 128 N.C.App. 716, 720, 496 S.E.2d 607, 611 (1998) (emphasis added) (citing Gibson v. Mutual Life Ins. Co. of N.Y., 121 N.C.App. 284, 465 S.E.2d 56 (1996)).
Res judicata precludes a second suit involving the same claim between the same parties or those in privity with them when there has been a final judgment on the merits in a prior action in a court of competent jurisdiction. Northwestern Fin. Group v. County of Gaston, 110 N.C.App. 531, 536, 430 S.E.2d 689, 692-93 (1993) (citations omitted). A judgment operates as an estoppel not only as to all matters actually determined or litigated in the proceeding, "but also as to all relevant and material matters within the scope of the proceeding which the parties, in the exercise of reasonable diligence, could and should have brought forward for determination." Rodgers Builders, Inc. v. McQueen, 76 N.C.App. 16, 22, 331 S.E.2d 726, 730 (1985). "In general, `privity involves a person so identified in interest with another that he represents the same legal right' previously represented at trial." State v. Summers, 351 N.C. 620, 623, 528 S.E.2d 17, 20 (2000) (quoting State ex rel. Tucker v. Frinzi, 344 N.C. 411, 417, 474 S.E.2d 127, 130 (1996)). In determining whether such a *262 privity relationship exists, "`courts will look beyond the nominal party whose name appears on the record as plaintiff and consider the legal questions raised as they may affect the real party or parties in interest.'" Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 36, 591 S.E.2d 870, 893 (2004) (citing State v. Summers, 351 N.C. 620, 623-24, 528 S.E.2d 17, 21 (2000)).
PNE defendants contend the trial court committed error by failing to grant summary judgment based on the doctrine of res judicata. In order to successfully assert the doctrine of res judicata, a litigant must prove the following essential elements: (1) a final judgment on the merits in an earlier suit, (2) an identity of the causes of action in both the earlier and the later suit, and (3) an identity of the parties or their privies in the two suits.
In the present action, this Court must determine if the prior judgments (in either Case I or Case II) bar plaintiff from bringing the present action against PNE defendants. It is clear that Case I resulted in a final judgment on the merits due to a joint dismissal with prejudice entered by all parties in settlement on 4 February 2003. See Riviere v. Riviere, 134 N.C.App. 302, 306, 517 S.E.2d 673, 676 (1999) (quoting Caswell Realty Assoc. v. Andrews Co., 128 N.C.App. 716, 720, 496 S.E.2d 607, 610 (1998) ("[A] voluntary dismissal with prejudice is a final judgment on the merits")); Kabatnik v. Westminster Co., 63 N.C.App. 708, 712, 306 S.E.2d 513, 515 (1983); Barnes v. McGee, 21 N.C.App. 287, 290, 204 S.E.2d 203, 205 (1974). It is also clear that the parties involved in Case I (Moody v. PNE defendants) are the same as those in the present action.
In Case II plaintiff brought state and federal claims against only one of the PNE defendants, PNE Media Holdings. All claims and counterclaims were dismissed in arbitration, including plaintiff's claim that PNE defendants were liable for canceling fire and extended insurance coverage under the 12 February 1999 lease. PNE defendants now assert that plaintiff's claims in Case II are the same as in the present action. PNE defendants also assert that PNE Media Holdings was in privity with PNE defendants, and therefore, the dismissal of the claims against PNE Media Holdings through federal arbitration preclude plaintiff's claim against all PNE defendants in the present action. We agree.
"The doctrine of res judicata applies to a judgment entered on an arbitration award as it does to any other final judgment." Rodgers, 76 N.C.App. at 22, 331 S.E.2d at 730 (breach of contract claims asserted in the present action were, or should have been, brought forward in the arbitration proceeding, therefore the plaintiff's claims were barred by res judicata); see also Futrelle v. Duke Univ., 127 N.C.App. 244, 250-51, 488 S.E.2d 635, 640 (1997).
Our Supreme Court has held that for the "breach of an entire indivisible contract only one action for damages will lie." Gaither Corp. v. Skinner, 241 N.C. 532, 536, 85 S.E.2d 909, 912 (1955); accord Bockweg, 333 N.C. at 494, 428 S.E.2d at 162 (1993). Here, plaintiff has brought three actions for breach of the same contract. The single, three-year lease agreement between plaintiff and Able Outdoor dated 12 February 1999 is an "entire and indivisible contract."
At the crux of the res judicata issue is plaintiff's Revised Statement of Claim in Case II, where plaintiff alleges:
4. Fiduciary Duty ... Respondents failed to act in good faith and breached their duty owed to Claimant by engaging in the (e) breaching the Lease Agreement between Claimant and Able Outdoor including, but not limited to, the cancellation of insurance coverage on the premises in violation of Paragraph 6 of the Lease Agreement, the failure to notify Claimant of the cancellation in a timely manner and the failure to notify Claimant of the transfer of the Lease Agreement from Able to PNE.
(Emphasis added).
In an effort to explain his legal strategy, in his brief, plaintiff points to the following language:
Where the omission of an item from a single cause of action is caused by fraud or deception of the opposing party, or where *263 the owner of the cause of action had no knowledge or means of knowledge of the item, the judgment in the first action does not ordinarily bar a subsequent action for the omitted item.
Gaither Corp., 241 N.C. at 536, 85 S.E.2d at 912 (emphasis added).
Applying the above principle from Gaither Corp. to the present action, we agree plaintiff could not have known in May 2001 when he filed Case I that a fire would occur in November 2001 and cause extensive property damage. There is, however, some question as to whether plaintiff knew his building was not covered by insurance at the time he filed Case I. Notwithstanding, plaintiff amended his complaint on 9 October 2001 to include additional damages. Plaintiff filed no other amendments to Case I between the time of the fire in November 2001 and the settlement of Case I on 4 February 2003. Therefore, instead of amending Case I to include damages incident to the fire as part of the breach of contract claim, plaintiff filed another complaint, Case II, and therein asserted a breach of fiduciary duty claim against PNE Media Holdings for canceling fire insurance and failing to notify plaintiff of the cancellation. Plaintiff certainly cannot claim lack of knowledge of the fire loss at the time he filed Case II.
In Case II, PNE defendants' asserted res judicata as an affirmative defense alleging plaintiff's claims should have been asserted in Case I, which was then still pending. After receiving PNE defendants' answer, plaintiff revised and expanded his "Statement of Claim" in Case II to include state law claims for fraud, breach of contract, negligence, and breach of fiduciary duties based on PNE defendants' conduct in canceling the fire insurance. The arbitrator in Case II dismissed all claims of plaintiff's and defendants', including plaintiff's claim against PNE Media for "the cancellation of the insurance policy and the failure to notify plaintiff of the cancellation."
It is well settled that under principles of res judicata a final judgment is conclusive "not only as to all matters actually litigated and determined, but also as to matters which could properly have been litigated and determined in the former action...." Fickley v. Greystone Enters., 140 N.C.App. 258, 260, 536 S.E.2d 331, 333 (2000) (citations omitted); See, e.g., Holly Farm Foods, Inc. v. Kuykendall, 114 N.C.App. 412, 442 S.E.2d 94 (1994) (holding res judicata precluded landlord from bringing second action for damages of unpaid future rents after a final judgment determined tenant's damages arising out of the breach of lease in landlord's first action) (emphasis added).
"The procedural history of the case below demonstrates that plaintiff [ ] [chose] not to have all [ ] claims adjudicated in the prior lawsuit. The doctrine of res judicata estops [him] from litigating any of those claims in a second lawsuit." Ballance v. Dunn, 96 N.C.App. 286, 292, 385 S.E.2d 522, 525 (1989). We find the above language in Dunn particularly appropriate in this case. The doctrine of res judicata requires the dismissal of all plaintiff's claims against PNE defendants since plaintiff has already obtained a final judgment regarding his claim for breach of the lease agreement in Case I and in Case II. There are no genuine issues of material fact as to plaintiff's claim of fire loss arising out of PNE defendants' failure to maintain insurance, or to notify plaintiff of a cancellation of policy. Because defendants have successfully asserted the doctrine of res judicata the trial court erred in denying PNE defendants' motion for summary judgment.
Reversed and remanded.
Judge HUDSON concurs.
Judge TYSON concurs in the result only.
TYSON, Judge concurring in the result only.
Because plaintiff could have asserted this cause of action in Case I but failed to do so, I vote to reverse the trial court's order. Any discussion of Case II is unnecessary to resolve this appeal. I respectfully concur in the result only of the majority's opinion.
I. Res Judicata
Under the doctrine of res judicata,"a final judgment on the merits in a prior action will prevent a second suit based on the same cause of action between the same parties or *264 those in privity with them." Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986). "The doctrine of res judicata is a principle of universal jurisprudence, forming a part of the legal systems of all civilized nations as an obvious rule of expediency, justice and public tranquillity." Queen City Coach Company v. Frank Burrell, 241 N.C. 432, 434-35, 85 S.E.2d 688, 691 (1955) (citation omitted).
"The essential elements of res judicata are: (1) a final judgment on the merits in an earlier lawsuit; (2) identity of the cause of action in the prior suit and the later suit; and (3) an identity of the parties or their privies in both suits." Culler v. Hamlett, 148 N.C.App. 389, 392, 559 S.E.2d 192, 194 (2002). "`Strict identity of issues... is not absolutely required and the doctrine of res judicata has been accordingly expanded to apply to those issues which could have been raised in the prior action.'" Stafford v. County of Bladen, 163 N.C.App. 149, 152, 592 S.E.2d 711, 713 (emphasis supplied) (quoting Caswell Realty Assoc. v. Andrews Co., 128 N.C.App. 716, 720, 496 S.E.2d 607, 610 (1998)), appeal dismissed and disc. rev. denied, 358 N.C. 545, 599 S.E.2d 409, (2004).
Our Supreme Court noted long-ago that "[t]he bar of the judgment in such cases extends not only to matters actually determined but also to other matters which in the exercise of due diligence could have been presented for determination in the prior action." Gaither Corp. v. Skinner, 241 N.C. 532, 535-36, 85 S.E.2d 909, 911 (1955) (citation omitted). In analyzing the doctrine of res judicata as it applies to breach of contract claims, "[o]rdinarily, for the breach of an entire and indivisible contract only one action for damages will lie." Gaither Corp., 241 N.C. at 536, 85 S.E.2d at 912 (citation omitted).
In Bockweg v. Anderson, our Supreme Court held that res judicata did not bar the plaintiffs' action where they were "seeking a remedy for a separate and distinct negligent act leading to a separate and distinct injury." 333 N.C. 486, 494, 428 S.E.2d 157, 163 (1993). However, Bockweg reconciled its result with that in Gaither by clearly distinguishing the causes of action: "While Gaither may be read broadly as defendants contend, Gaither dealt with res judicata only in the context of a second suit for damages under an entire and indivisible contract, not a negligence action as in the instant case." Id. at 494, 428 S.E.2d at 162; see also Davenport v. North Carolina Dep't of Transp., 3 F.3d 89 (4th Cir.1993).
II. Analysis
I would follow our Supreme Court's reasoning in both Bockweg and Gaither to reverse the trial court's order denying PNE defendants' motion for summary judgment. Here, plaintiff brought the first cause of action on 25 May 2001. Barely one month prior to the fire, in October 2001, plaintiff amended his complaint to include additional causes of action. Presuming plaintiff was unaware at the time of the first action that PNE defendants were in breach of the contract for failure to procure fire insurance, plaintiff most certainly became aware of PNE defendants' breach in November 2001 following the fire.
The "exercise of due diligence" language in Gaither should not be construed broadly. Considering the facts of this case, plaintiff not only could have amended his complaint to include another claim for breach of contract, but should have included this action. The action at bar was filed 25 February 2002, while Case I was still pending. The parties did not settle Case I until 4 February 2003, a year after the filing of the action at bar.
Following the well-established rule that "for the breach of an entire and indivisible contract only one action for damages will lie," Gaither Corp., 241 N.C. at 536, 85 S.E.2d at 912, plaintiff had the opportunity, upon discovery of additional breaches, to include any additional claims arising out of the only contract it had with PNE defendants. See Smoky Mountain Enterprises, Inc. v. Jesse Rose, 283 N.C. 373, 378, 196 S.E.2d 189, 192 (1973) ("Plaintiff cannot in this action seek relief which, in the exercise of reasonable diligence, could have been presented for determination in the prior action.").
I would reverse the trial court solely on this basis. Any discussion in the majority's opinion regarding Case II and privies is unnecessary *265 to the resolution of this case. I respectfully concur in the result only in the majority's opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261734/ | 121 N.H. 287 (1981)
THE STATE OF NEW HAMPSHIRE
v.
LEROY STEVENS.
No. 80-172.
Supreme Court of New Hampshire.
April 17, 1981.
*288 Gregory H. Smith, acting attorney general (Martha V. Gordon, attorney, on the brief and orally), for the State.
Paul J. Twomey, of Manchester, by brief and orally, for the defendant.
KING, J.
The defendant appeals his superior court conviction for burglary on the ground that certain evidence used to convict him was obtained pursuant to an unlawful arrest. The defendant also asserts that the granting of his motion to suppress in the district court barred the State from relitigating the legality of the arrest in the superior court. We find no error and affirm the defendant's conviction.
On the evening of November 12, 1979, Lieutenant Goonan of the Manchester police received a report from John O'Keefe, a person known to the officer for several years, that he had witnessed an incident in which an automobile struck two other vehicles and knocked down a telephone pole. The informant also reported to the officer that the three occupants of the automobile ran from the scene and were at that time running through an alley near the police station. The officer arrived at the alley in time to observe three men scaling a fence. The officer circled the building to avoid *289 the fence and momentarily lost sight of the three men. Continuing his pursuit, the officer came upon the three in a parking lot and placed them under arrest. Later that night, the defendant confessed to misdemeanor violations of RSA 262-A:67 (Supp. 1979) for failing to report the accident and RSA 634:3 for unauthorized use of a motor vehicle, and to a felony violation of RSA 635:1 for burglary.
On December 14, 1979, the District Court (Capistran, J.) consolidated the misdemeanor trials and the probable cause hearing and heard evidence on the defendant's motion to suppress his confession and other evidence derived from the arrest. On December 21, 1979, the court granted the motion to suppress and dismissed the misdemeanor charges. The court also found no probable cause to bind the defendant over on the burglary charge.
On the same day, the grand jury indicted the defendant for the burglary. After a hearing on March 12, 1980, on the defendant's motion to suppress and motion in limine, the Superior Court (Goode, J.) ruled that it was not collaterally estopped by the district court's ruling on the motion to suppress and denied the motions. The defendant waived a jury and submitted the case to the court on stipulated facts. The court found the defendant guilty and denied his motion to set aside the verdict.
The defendant argues that because the motion to suppress had been fully and fairly litigated in the district court, the doctrine of collateral estoppel barred relitigation of the legality of the defendant's arrest and, therefore, his motion in limine should have been granted.
[1] "The judicial power of the State shall be vested in the supreme court, a trial court of general jurisdiction known as the superior court, and such lower courts as the legislature may establish under Article 4th of Part 2." N.H. CONST. pt. 2, art. 72-a. RSA 502-A:11 (Supp. 1979) gives the district court jurisdiction of criminal offenses "punishable by a fine not exceeding $1,000 or imprisonment not exceeding one year, or both." With respect to complaints charging felonies, the jurisdiction of the district court is limited to whether there is probable cause to bind the defendant over for trial to the superior court. Benton v. Dist. Ct., 111 N.H. 64, 65, 274 A.2d 876, 877 (1971); RSA 502-A:11 (Supp. 1979); RSA 502-A:13. The matter of guilt or innocence in felony cases is, therefore, initially within the exclusive jurisdiction of the superior court.
[2] If the superior court were not allowed to rule on the motion to suppress, the district court would have de facto jurisdiction to *290 determine the outcome of felony cases, despite the exclusive jurisdiction of the superior court, because the granting of a motion to suppress may require the dismissal of the case for lack of evidence. See State v. Conti, 110 R.I. 237, 240-41, 291 A.2d 623, 624 (1972). Furthermore, to apply the doctrine of collateral estoppel herein would bind the superior court to evidentiary rulings made by an inferior tribunal. Id. at 241, 291 A.2d at 625.
The defendant argues that it was error for the superior court to deny his motion to suppress. Specifically, the defendant notes that the provision of RSA 262-A:67 imposing the duty to report an accident resulting in death, personal injury, or property damage applies only to the driver of the automobile involved. Consequently, he argues, only one of the three men arrested had committed a crime by failing to report the accident. Because the police had no information indicating which of the three men was the driver, he contends, the police lacked probable cause to arrest any one of the three.
[3, 4] Probable cause to arrest exists when the arresting officer has knowledge and trustworthy information sufficient to warrant a man of reasonable caution and prudence to believe that the arrestee has committed an offense. Brinegar v. United States, 338 U.S. 160, 175-76 (1949); State v. Lemire, 121 N.H. 1, 4, 5, 424 A.2d 1135, 1138 (1981). In determining the existence of probable cause, courts are not bound by rigid mathematical calculations. See Brinegar v. United States, supra at 175; State v. Hutton, 108 N.H. 279, 287, 235 A.2d 117, 122 (1967). Rather, courts must approach the issue with a concern for the "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Draper v. United States, 358 U.S. 307, 313 (1959), quoting Brinegar v. United States supra.
[5] The officer in this case acted upon information supplied by a person known to him for several years and whom he believed to be trustworthy. Acting on this information, the officer discovered three men running away from the scene of the accident through an alley which the informant had identified as the one through which the occupants of the car had fled. The information made known to the officer by the informant, together with his personal observations of the men in flight, gave the officer probable cause to arrest each of the three men. See State v. Feole, 121 N.H. 164, 167, 427 A.2d 43, 45 (1981). The mere fact that the officer arrested all three *291 suspects does not destroy the probable cause that existed with respect to each individual suspect.
We affirm the defendant's conviction.
Affirmed.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261740/ | 132 Cal.Rptr.2d 831 (2003)
107 Cal.App.4th 1081
The PEOPLE, Plaintiff and Respondent,
v.
Julio Romero GARZA, Defendant and Appellant.
No. C039029.
Court of Appeal, Third District.
April 14, 2003.
Review Denied June 25, 2003.
*833 John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, John G. McLean and Aaron R. Maguire, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
*832 OPINION ON REHEARING
SIMS, Acting P.J.
In a case arising out of defendant Julio Garza's sexual assault on Cynthia R. on August 23, 2000, a jury convicted defendant on 18 felony counts: kidnapping for rape (count 1; Pen.Code, § 209, subd. (b)(1); all further undesignated section references are to the Penal Code), forcible oral copulation (counts 2-6; § 288a, subd. (c)(2)), forcible rape (counts 7-14; § 261, subd. (a)(2)), forcible digital penetration (count 15; § 289, subd. (a)(1)), sexual battery (count 16; § 243.4, subd. (a)), false imprisonment (count 17; § 236), and assault with a firearm (count 18; § 245, subd. (a)(2)). The jury also found that defendant personally used a firearm as to all counts. (§ 12022.53.) Finally, the jury found as to counts 2 through 15 that defendant kidnapped the victim for the purpose of committing rape, forcible oral copulation, or digital penetration, and substantially increased the risk of harm to the victim over and above that necessarily present in the underlying crime. (Cf. § 667.61, subds.(a), (d).)
The trial court sentenced defendant as follows: on count 2 (forcible oral copulation), the court imposed an indeterminate life sentence with a minimum of 25 years served before parole eligibility. (§§ 288a, subd. (c)(2); 667.61, subds. (a), (b), (e).) On counts 3 (forcible oral copulation), 7 (rape), and 15 (forced digital penetration), the court imposed consecutive determinate *834 aggravated terms of eight years, plus 10 years for the firearm use enhancements. (§§ 288a, subd. (c)(2); 261, subd. (a)(2); 289, subd. (a)(1); 12022.53, subd. (b).) On counts 4 through 6, the remaining forcible oral copulation counts and firearm use enhancements, the court ran the 18-year sentences concurrent to that on count 3; similarly, on counts 8 through 14, the remaining rape counts and firearm use enhancements, the court ran the 18-year sentences concurrent to that on count 7. The court stayed execution of sentence on count 1 (kidnapping to commit rape) pursuant to section 209, subdivision (d), which bars punishment for that offense where an enhancement is imposed under section 667.61 for rape; the court also stayed execution of sentence on counts 16 through 18 pursuant to section 654. Finally, the court revoked defendant's probation in a prior case (People v. Garza (Super. Ct. Sacramento County, No. 98F07051B)) and imposed an eight-month consecutive sentence for violation of Vehicle Code section 10851, subdivision (a).
Although the trial court first imposed the indeterminate life term, followed by the determinate terms, at the conclusion of sentencing, the trial court summed up as follows: "Accordingly, Mr. Garza, you are sentenced to the imprisonment in state prison for 54 years, plus an additional life sentence with a minimum parole eligibility of 25 years."
This summation was correct. Section 669 provides in pertinent part: "Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first and no part thereof shall be credited toward the person's eligibility for parole as calculated pursuant to section 3046 or pursuant to any other section of law that establishes a minimum period of confinement under the life sentence before eligibility for parole." Thus, "whenever a person is sentenced to prison on a life sentence and any other term of imprisonment for a felony conviction, and the sentences are to run consecutively, the sentence must provide that the determinate term of imprisonment shall be served first and the life sentence shall be consecutive to the determinate term, and not vice versa." (People v. Grimble (1981) 116 Cal.App.3d 678, 684-685, 172 Cal.Rptr. 362, followed in In re Thompson (1985) 172 Cal.App.3d 256, 261, 218 Cal.Rptr. 192 and People v. Webber (1991) 228 Cal. App.3d 1146, 1172, 279 Cal.Rptr. 437; see People v. Jenkins (1995) 10 Cal.4th 234, 251, 40 Cal.Rptr.2d 903, 893 P.2d 1224.) Since we are modifying the judgment and directing the trial court to prepare a new abstract of judgment, the new abstract can reflect the order in which defendant shall serve the terms to which he was sentenced. (People v. Webber, supra, 228 Cal. App.3d at p. 1172, 279 Cal.Rptr. 437.)
On appeal, defendant contends: (1) The admission of propensity evidence under Evidence Code section 1108 violated defendant's federal constitutional rights to due process and equal protection. (2) The evidence should have been excluded under Evidence Code section 352 as unduly prejudicial. (3) Insufficient evidence supports defendant's convictions on counts 2 through 6 and 7 through 14. (4) The trial court erred prejudicially by restricting defendant's right under the Sixth Amendment to the United States Constitution and Evidence Code section 782 to present evidence and cross-examine the victim as to whether the sperm found in her vagina during the sexual assault examination was deposited during intercourse with another person on the morning of August 22, 2000.(5) The trial court erred prejudicially by instructing the jury on flight (CALJIC No. 2.52).(6) The trial court *835 erred prejudicially by instructing the jury with CALJIC No. 17.41.1.(7) The cumulative prejudice from the trial court's errors compels reversal. (8) Consecutive sentencing on counts 3, 7, and 15 was not mandatory under section 667.6, subdivision (d), as the trial court thought; therefore the matter must be remanded for resentencing.
The Attorney General contends a 10-year firearm use enhancement should have been imposed on count 2.
In the published portion of the opinion, we shall conclude that the trial court properly imposed consecutive sentences on counts 3, 7, and 15 and also properly imposed full 10-year firearm use enhancements on those counts. In the unpublished portion of the opinion, we reject defendant's other contentions of prejudicial error and we conclude a 10-year firearm use enhancement should have been imposed on count 2. (§ 12022.53.) We shall therefore modify the judgment to impose the 10-year enhancement on count 2 and affirm the judgment as modified.
FACTS
Prosecution case
On August 23, 2000, the 19-year-old victim was visiting a friend at an apartment complex in north Sacramento. Between 11:30 p.m. and 1:00 a.m., she accepted a ride from defendant, whom she knew, to take her to Michelle D.'s apartment in the complex, where she was staying.
After defendant started driving toward Michelle D.'s apartment, he asked the victim to buy him cigarettes, claiming he did not have his identification with him. She said she also did not have identification, but he insisted the store would sell her cigarettes anyway.
As defendant drove on (having passed Michelle D.'s apartment), he talked about his financial problems and his girlfriend's pregnancy. Then he displayed a gun. When the victim asked why he had one, he ordered her to take her clothes off, then said he was just kidding. He did this two or three times. At first she thought it was a joke, but then she became scared, started crying, and asked him to take her home.
Instead, defendant drove past an AM/PM market on Watt Avenue and parked near a warehouse, remote from the street or any passersby. The victim asked: "What [are] we doing here[?]" Defendant replied: "I brought you here to fuck you."
Defendant ordered the victim to "go down on" him. She asked him not to make her do that because she had never done it before. He grabbed the back of her neck, pointed the gun at her, and told her to "suck [his] dick." He said if she did that he would not force her to have sex with him. Then he pulled her head toward his lap and forced her to put his penis in her mouth as he held the gun to the back of her head. When she tried to pull back, he pressed the gun against her head and said: "[K]eep doing it or I'm going to shoot you." Defendant forced her to orally copulate him six or seven times.
Letting go of the victim's neck, defendant ordered her to take off her clothes. When she refused, he punched her in the left eye, then put the gun to her temple and threatened to shoot if she did not comply. She and defendant got undressed. Reclining the passenger seat, defendant got on top of her.
Defendant put his finger in the victim's vagina. Then he began to "play" with her chest. He then put his gun on the back seat, pulled the victim's legs around his shoulders, and forced his penis inside her vagina. Crying, she told him to stop or at least to use a condom; he put his hand *836 over her mouth and said, "Shut up." He removed and reinserted his penis about eight times, then ejaculated.
After defendant and the victim dressed, he began driving back to the apartment complex. He told her: "If I find out that you have blood on my car, I'm going to come back and beat the shit out of you." She promised not to call the police or say anything to anyone if he took her home. Before letting her out, he apologized, saying, "I could have killed you ... and I didn't."
Once inside Michelle D.'s apartment, the victim broke down crying, told Michelle D. what happened, then went into the bathroom and vomited. Michelle D. called Krista A. and Herman R., friends of the victim, who came over. When the police came in response to a 911 call, they took the victim to UC Davis Medical Center for a sexual assault examination.
The victim reported that she had been forced at gunpoint to perform oral copulation, forcibly penetrated with a finger, and raped. The examiner found the victim's genitals and labia very tender and her cervix blood-streaked; the victim also suffered from a bruise around her left eye consistent with being hit in the face, and tenderness in the back of her head. All findings were consistent with sexual assault.
After the police took defendant into custody in the early morning of August 23, 2000, he waived his rights against self-incrimination and spoke to an officer in a videotaped interview. At first he denied that anything had happened: he had merely driven the victim to the AM/PM market and back to the apartment complex. Later he said he had talked to the victim about his problems, then parked by a warehouse and asked her to have sex with him; she agreed and they had consensual sex. He admitted taking out a .38-caliber snub-nosed revolver earlier and waving it around. After mentioning the gun, he first claimed he had taken it to a friend's house after dropping the victim off, then admitted he had thrown the gun and a bag full of bullets out the car window after he saw a marked police car turn around behind him.
The detective left defendant alone to write to the victim. Defendant wrote and signed the following: "Dear Cynthia, I'm writing this letter to say that I am sorry for putting you through what I did that night. I am sorry for putting a gun to your head and making you do something that you didn't want to do. I would also like to say thank you for calling the cops on me because hopefully now I can get some help. But once again, I am really, really sorry for hurting you and I mean that from the heart."
Later that morning, defendant directed the police to the spot where he had thrown out the gun and bullets. The police could not find the gun, but found two .38-caliber bullets.
Defense case
Testifying on his own behalf, defendant stuck to his last story to the police: the sexual acts with the victim were consensual, although he "pushed her into doing it" by telling her he would be her boyfriend and take care of her.
According to defendant, he and the victim had flirted in the past; thus, when he had the chance to pick her up on the night of August 23, 2000, he thought he would take the opportunity to talk to her. When he picked her up, he told her he wanted to go buy cigarettes, then started flirting; she reciprocated.
They drove to the AM/PM and made purchases. Driving away, he asked if the victim would mind stopping and talking; *837 she said she would not so he parked by a warehouse.
He told the victim he "would treat her right" and complained of money problems. He asked her if he could kiss her; she said she did not care. He kissed her and she responded.
When he asked the victim if they could have sex, she said she "wasn't that type of girl." However, when he resumed kissing her and started rubbing his hands on her, she did not protest. He unbuttoned her shorts and started rubbing her down there, then asked again if they could have sex.
Defendant asked the victim if she ever "went down on somebody;" she said she did not do that. He told her to try it once and she did, but after he put his penis in her mouth she got up and said she did not like it and could not do it anymore.
After that, they stripped. At defendant's request, the victim leaned back in the passenger seat. He climbed over, and they had sex. Defendant penetrated her vagina only once. She asked him to slow down, but did not scream or ask him to stop. He never hit her. After a while, he stopped because he felt disgusted.
Getting out of the car, defendant began arguing with the victim. She asked, "Where do we stand at?" He said, "[N]owhere," adding that he had a child on the way. She called him a dog; he called her dirty and a bitch.
Defendant drove the victim back to the apartment complex, apologizing for his name-calling on the way. As she got out, she said he was "no good" and "just like all the rest of them." She then asked, "Who gets the last laugh?" He sarcastically invited her to call the cops.
After dropping the victim off, defendant went to get something to eat. An hour later, he got a page from Renee A., the victim's cousin; when he returned the call, Renee A. asked him, "[w]hat did you do to my cousin?" Krista A. got on the phone and told defendant that the victim had said he raped her. Defendant told Krista A. she had known him for 13 years and knew he would never do such a thing.[1] He then said he would call her right back.
Defendant drove to another woman's house, then called Renee A. and Krista A. back. They told him the police were there; he said he would return and asked them to keep the police there. En route to the apartment complex, he threw his gun and bullets out the car window. The police stopped him inside the entrance to the complex.
Defendant tried to explain away incriminating evidence from his police interview and his letter to the victim. Although he never hit her or waved a gun at her, he falsely told the police he had done so because he was tired of being questioned. His letter was an apology for talking her into having sex with him. He said in the letter he had put a gun to her head and forced her because the police told him to include that in the letter. When he thanked her in the letter for calling the police, he was being sarcastic.
Rebuttal
R. testified that she met defendant when she was 13 and they went together for the next four years. On July 4, 1996, defendant put four bullets into a five-shot revolver, spun the cylinder, put the gun next to her temple, and pulled the trigger; she heard a click. She told him she did not want to be with him anymore; he told *838 her to shut up and said she wasn not going anywhere until she had sex with him. He pushed her onto the floor, slapped her face, pulled off her pants, and raped her. She had not reported the crime because he told her he would kill her if she mentioned it to anyone. She denied having communicated with defendant by telephone or mail in 1997 while he was in the California Youth Authority.
Krista A. testified that when she arrived at Michelle D.'s apartment in the early morning of August 23, 2000, the victim was crying and screaming. She said defendant had forced her to have oral sex and intercourse at gunpoint and had hit her. The tape of Krista A.'s 911 call was played; the victim's crying voice could be heard in the background.
Surrebuttal
Defendant produced a letter, which he said was written by R., sent to him at the California Youth Authority in 1997. It said: "[Y]ou were my first love but you did me wrong. Sorry it ended the way it did. You will always be ... in my heart for life."
DISCUSSION
I-VII[**]
VIII
Defendant contends the trial court erroneously sentenced him to consecutive terms on count 3 (forcible oral copulation; § 288a, subd.(c)(2)), count 7 (forcible rape; § 261, subd. (a)(2)), and count 15 (forcible digital penetration; § 289, subd. (a)(1)) in the mistaken belief that section 667.6, subdivision (d), required such sentencing. We shall conclude the trial court lawfully sentenced defendant.
The trial court followed the probation report's recommendation of consecutive sentencing on counts 3, 7, and 15 under section 667.6, subdivision (d), finding: "there really were three separate occasions of sex acts: The series of forcible oral copulation[s], then the sequence of fondling and digital penetration and then a series of forcible rapes."
The People assert defendant waived his challenge to the sentencing by failing to object below. (See People v. Scott (1994) 9 Cal.4th 331, 356-357, 36 Cal.Rptr.2d 627, 885 P.2d 1040 (Scott).) The People are incorrect. Scott expressly exempts unauthorized sentences from its waiver rule. (Id. at p. 354 & fn. 17, 36 Cal.Rptr.2d 627, 885 P.2d 1040.) Defendant claims the trial court could not lawfully sentence him to consecutive terms on counts 3, 7, and 15 under section 667.6, subdivision (d), because his offenses on those counts did not occur on separate occasions as that provision requires. If he is correct, the sentence was unauthorized in this respect. He has not waived the issue.
Section 667.6, subdivision (d), provides in part: "A full, separate, and consecutive term shall be served for each violation of ... paragraph (2) ... of subdivision (a) of Section 261, ... subdivision (a) of Section 289, ... or of committing ... oral copulation in violation of Section ... 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim ... if the crimes involve ... the same victim on separate occasions.
"In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity *839 to reflect upon his ... actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his ... opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (§ 667.6, subd.(d), italics added; see People v. Jones (2001) 25 Cal.4th 98, 104, 104 Cal.Rptr.2d 753, 18 P.3d 674.)
Our Supreme Court has recently summarized case law construing the "separate occasions" requirement of section 667.6, subdivision (d) as follows:
"Under the broad standard established by ... section 667.6, subdivision (d), the Courts of Appeal have not required a break of any specific duration or any change in physical location. Thus, the Court of Appeal herein cited People v. Irvin (199[6]) 43 Cal.App.4th 1063, 1071, 51 Cal.Rptr.2d 127, for the principle that a finding of `separate occasions' under ... section 667.6 does not require a change in location or an obvious break in the perpetrator's behavior: `[A] forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter.' Similarly, the Court of Appeal in People v. Plaza (1995) 41 Cal.App.4th 377, 385, 48 Cal.Rptr.2d 710, affirmed the trial court's finding that sexual assaults occurred on `separate occasions' although all of the acts took place in the victim's apartment, with no break in the defendant's control over the victim. (But see People v. Pena (1992) 7 Cal.App.4th 1294, 1316, 9 Cal.Rptr.2d 550 [defendant's change of positions between different sexual acts was insufficient by itself to provide him with a reasonable opportunity to reflect upon his actions, `especially where the change is accomplished within a matter of seconds']; People v. Corona (1988) 206 Cal.App.3d 13, 18, 253 Cal.Rptr. 327 [holding, after the respondent implicitly conceded the point, that the trial court erred in imposing consecutive sentences for different sexual acts when there was no cessation of sexually assaultive behavior `between' acts].)" (People v. Jones, supra, 25 Cal.4th 98, 104-105, 104 Cal.Rptr.2d 753, 18 P.3d 674.)
Once a trial judge has found under section 667.6, subdivision (d), that a defendant committed offenses on separate occasions, we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior. (People v. Plaza, supra, 41 Cal.App.4th 377, 384, 48 Cal.Rptr.2d 710; People v. Pena, supra, 7 Cal.App.4th 1294, 1314, 9 Cal.Rptr.2d 550.) Applying this deferential standard, we conclude the trial court here could reasonably have decided that counts 3, 7, and 15 (forcible oral copulation, rape, and forcible digital penetration) occurred on separate occasions. After defendant forced the victim to orally copulate him, he let go of her neck, ordered her to strip, punched her in the eye, put his gun to her head and threatened to shoot her, and stripped along with her. That sequence of events afforded him ample opportunity to reflect on his actions and stop his sexual assault, but he nevertheless resumed it. Thus, defendant's first act of rape was committed on a separate occasion from the forcible oral copulations. (Plaza, supra, 41 Cal.App.4th 377, 384-385, 48 Cal. Rptr.2d 710.)
Similarly, defendant had an adequate opportunity to reflect upon his actions between the time he inserted his finger in the victim's vagina and the commission of the first rape. During this interval, defendant (1) began to play with the victim's chest; (2) put his gun on the back seat; (3) pulled the victim's legs around his shoulders *840 and, finally, (4) forced his penis inside her vagina. A reasonable trier of fact could have found the defendant had adequate opportunity for reflection between these sex acts and that the acts therefore occurred on separate occasions for purposes of application of section 667.6, subdivision (d). (Plaza, supra, 41 Cal.App.4th 377, 384-385, 48 Cal.Rptr.2d 710.)
The trial court did not err in sentencing defendant.
IX
As noted, the trial court imposed 10-year enhancements on counts 3, 7, and 15 under section 12022.53, subdivision (b). At the time of sentencing, that provision stated in part: "Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), and who in the commission of that felony personally used a firearm, shall be punished by a term of imprisonment of 10 years in the state prison, which shall be imposed in addition and consecutive to the punishment prescribed for that felony."[5]
However, in People v. Moody (2002) 96 Cal.App.4th 987, 117 Cal.Rptr.2d 527 (Moody), a case decided after trial and sentencing here, we held that where a defendant was convicted of attempted second degree robbery and was sentenced to a consecutive determinate term for that offense, with an enhancement under section 12022.53, subdivision (b), the trial court could not impose a full 10-year term for the enhancement. We explained that in a case involving principal and subordinate terms for the crime of attempted robbery section 1170.11 commanded that the preexisting enhancement sentencing limitation of section 1170.1 still applied. Section 1170.1 provides in pertinent part: "The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (§ 11701.1, italics added; see Moody, supra, 96 Cal.App.4th at pp. 990-993, 117 Cal.Rptr.2d 527.) Thus, the trial court could lawfully impose only one-third of the enhancement term, or three years and four months, for any enhancement pursuant to section 12022.53, subdivision (b), on a consecutive determinate subordinate term imposed for attempted robbery.
We requested and received supplemental briefing from the parties on the question whether, in light of Moody, full consecutive terms could be imposed for the firearm use enhancements on consecutive terms for counts 3, 7, and 15 in this case. For reasons that follow, we conclude that the crimes at issue, unlike the attempted robbery in Moody, are subject to the provisions of subdivision (h) of section 1170.1, which provides for full-term enhancements.
At the outset, we acknowledge the Attorney General is correct in his argument that, for purposes of application of section 1170.1, count 3 should be treated as a principal term, not a subordinate term subject to reduction. At oral argument, defendant conceded the Attorney General is correct on this point. The sentence on count 3 was run consecutive to the 25years to-life sentence imposed on count 2. However, the 25-years to-life sentence is an indeterminate sentence. (People v. Felix (2000) 22 Cal.4th 651, 659, 94 Cal. *841 Rptr.2d 54, 995 P.2d 186.) Section 1170.1, which requires reduction of consecutive terms to one-third, "fully applies only when all terms of imprisonment are `determinate,' i.e., of specified duration. A life sentence is `indeterminate,' i.e., not for a fixed period. When a defendant is sentenced to both a determinate and an indeterminate sentence, the determinate sentence is served first. Nonetheless, neither term is `principal' [n]or `subordinate.' They are to be considered and calculated independently of one another. [Citation.]" (People v. Reyes (1989) 212 Cal.App.3d 852, 856, 260 Cal.Rptr. 846, italics added; cited with approval in People v. Felix, supra, 22 Cal.4th 651, 658, 94 Cal.Rptr.2d 54, 995 P.2d 186; see People v. Lyons (1999) 72 Cal.App.4th 1224, 1227-1229, 85 Cal.Rptr.2d 581.) Because the determinate term on count 3 was to be calculated independently of the indeterminate term imposed on count 2, the trial court correctly imposed the full 10-year enhancement on count 3.
With respect to counts 7 and 15, we have concluded sentence on those counts was properly imposed pursuant to section 1170.1, subdivision (h).
In People v. Fitch (1985) 171 Cal.App.3d 211, 217 Cal.Rptr. 197, this court considered whether separate two-year enhancements for use of a firearm were properly imposed on four consecutive counts of forcible oral copulation (§ 288a, subd. (c)). We concluded that the four separate enhancements were authorized by former section 1170.1, subdivision (i), which then provided: "`For any violation of subdivision (2) or (3) of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289, or sodomy or oral copulation by force, violence, duress, menace or threat of great bodily harm as provided in Section 286 or 288a, the number of enhancements which may be imposed shall not be limited, regardless of whether such enhancements are pursuant to this or some other section of law. Each of such enhancements shall be a full and separately served enhancement and shall not be merged with any term or with any other enhancement'" (People v. Fitch, supra, 171 Cal.App.3d at p. 214, fn. 2, 217 Cal.Rptr. 197.)
In reaching this conclusion in Fitch, we said, "Subdivision (d) of section 667.6 is obviously not an alternative sentencing scheme to that in section 1170.1. Rather, it is mandatorily applicable to cases within its terms, supplanting to that extent the generally applicable consecutive sentencing scheme of section 1170.1. However, ... the Legislature did not make subdivision (d) mutually exclusive with the totality of section 1170.1. Thus to the extent they are not inconsistent with subdivision (d), the provisions of section 1170.1 apply to cases within subdivision (d)." (People v. Fitch, supra 171 Cal.App.3d 211, 214, 217 Cal.Rptr. 197.) We continue to subscribe to this analysis.
The substance of former section 1170.1, subdivision (i), which we construed in Fitch, is now found in section 1170.1, subdivision (h), which provides as follows: "For any violation of an offense specified in Section 667.6, the number of enhancements that may be imposed shall not be limited, regardless of whether the enhancements are pursuant to this section, Section 667.6, or some other provision of law. Each of the enhancements shall be a full and separately served term." (Italics added.)
In the instant case, counts 7 and 15 are convictions for violation of, respectively, sections 261, subdivision (a)(2) and 289, subdivision (a)(1). Both of these offenses are "specified in section 667.6" as section *842 1170.1, subdivision (h) requires.[6] That subdivision unambiguously mandates that each of the firearm enhancements be a full term. Although we did not consider in Fitch whether each of the separate firearm use enhancements had to be a full term, in fact each two-year enhancement term was a full term under the version of section 12022.5 in effect when defendant committed his crimes. (See Stats. 1977, ch. 165, § 92, p. 678.)
We conclude the trial court properly imposed separate full-term enhancements on counts 3, 7, and 15.
X[***]
DISPOSITION
The judgment is modified by imposing a 10-year firearm use enhancement, which shall be consecutive, on count 2, so that defendant's sentence is a determinate sentence of 64 years eight months, followed by a consecutive indeterminate life sentence with parole eligibility after a minimum of 25 years. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting this modification and shall forward a certified copy of the same to the Department of Corrections.
We concur: DAVIS and MORRISON, JJ.
NOTES
[*] Pursuant to rule 976.1 of the California Rules of Court, this opinion is certified for publication with the exception of parts I through VII and part X of the DISCUSSION.
[1] On cross-examination, defendant denied having raped another victim named R. in 1996.
[**] See footnote *, ante.
[5] This part of section 12022.53, subdivision (b) was subsequently amended. We give the current version below in a nonpublished portion of this.
[6] Section 667.6 provides in pertinent part: "(a) Any person who is found guilty of violating paragraph (2) ... of subdivision (a) of Section 261, ... or subdivision (a) of Section 289, ... who has been convicted previously of any of those offenses shall receive a five-year enhancement for each of those prior convictions provided that no enhancement shall be imposed under this subdivision for any conviction occurring prior to a period of 10 years in which the person remained free of both prison custody and the commission of an offense which results in a felony conviction."
[***] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261742/ | 152 Pa. Commonwealth Ct. 111 (1992)
618 A.2d 1118
Anthony PASTORE, Carl Pastore, Don Pastore and Paul Pastore d/b/a Pastore Brothers, Tenants in common, and d/b/a Pastore Brothers, a Pennsylvania Partnership, Petitioners
v.
COMMONWEALTH of Pennsylvania STATE SYSTEM OF HIGHER EDUCATION for the Use of EDINBORO UNIVERSITY OF PENNSYLVANIA, Maleno Developers, Inc., Louis J. and Susan J. Porreco and Millcreek Township, Respondents.
Commonwealth Court of Pennsylvania.
Argued June 17, 1992.
Decided December 4, 1992.
*113 Andrew J. Conner, for petitioners.
John G. Eldemueller, for respondents.
Before CRAIG, President Judge, DOYLE, McGINLEY, SMITH, PELLEGRINI, FRIEDMAN and KELLEY, JJ.
CRAIG, President Judge.
In this original jurisdiction case, captioned as a complaint in equity, the landowner partnership, Pastore Brothers, has sought relief for injury to its Willowood residential development in Millcreek Township, Erie County, allegedly resulting from surface water flow descending upon the Pastore property from higher land to the south, across West 38th Street, owned by Edinboro University of the Pennsylvania State System of Higher Education (the state).
The Erie County Court of Common Pleas, where Pastore filed the action and where the state joined Millcreek Township *114 as an additional defendant, has now transferred the case to this court on the basis of 42 Pa.C.S. § 761(a), which confers upon this court "original jurisdiction of all civil actions or proceedings . . . [a]gainst the Commonwealth government," subject to five listed exceptions.
The state and the township each have presented motions for summary judgment.
Although none of the parties now question the jurisdictional transfer made by the trial court pursuant to a motion by the state, this court necessarily must first confirm whether or not jurisdiction in any respect belongs here, before proceeding to resolve the motions for summary judgment.
JURISDICTION
The Law
The pertinent statutory provisions governing this court's original jurisdiction in this case are found in 42 Pa.C.S. § 761, as follows:
(a) General Rule. The Commonwealth Court shall have original jurisdiction of all civil actions or proceedings:
(1) Against the Commonwealth government, including any officer thereof, acting in his official capacity, except:
. . . .
(ii) eminent domain proceedings;
(iii) actions or proceedings conducted pursuant to Chapter 85 (relating to matters affecting government units);
(iv) actions . . . conducted pursuant to . . . the Board of Claims Act; and
(v) actions or proceedings in the nature of trespass as to which the Commonwealth government formerly enjoyed sovereign or other immunity and action or proceedings in the nature of assumpsit relating to such actions or proceedings in the nature of trespass.
Exception (i), as to habeas corpus, is omitted as obviously unrelated to this action.
*115 Actions seeking injunctions against the state, even with ancillary claims for damages, constitute a familiar segment of this court's trial jurisdiction. But that area of our jurisdiction is subject to the important proviso that the claim be not one actually sounding in eminent domain, 42 Pa.C.S. § 761(a)(1)(ii), Lerro v. Department of Transportation, 32 Pa.Commonwealth Ct. 372, 379 A.2d 652 (1977), and also that it not be, as covered by 42 Pa.C.S. § 761(a)(1)(iii) above, an action for damages from negligent injuries pursuant to Chapter 85 of the Judicial Code, 42 Pa.C.S. §§ 8501-8528, the chapter which relates to sovereign immunity and waives that immunity as to specified categories of claims.
The third possibly pertinent exception to our original jurisdiction, in 42 Pa.C.S. § 761(a)(1)(v), embracing actions "in the nature of trespass as to which the Commonwealth government formerly enjoyed sovereign or other immunity," obviously overlaps the Chapter 85 category but harks back to the dichotomy between the "trespass" and "assumpsit" forms of action which were consolidated within the single concept of "civil action" under Pa.R.C.P. No. 1001, which abolished the procedural distinction between assumpsit and trespass.
The Board of Claims exception, also possibly pertinent, is discussed below.
The Complaint
A detailed examination of the Pastore "Complaint in Equity," in the light of the above statute, is necessary to decide the matter of jurisdiction. The Pastore complaint expressly invokes jurisdiction under the Storm Water Management Act (SWMA), Act of October 4, 1978, P.L. 864, §§ 13, 15, 32 P.S. §§ 680.13, 680.15 (complaint ¶¶ 19-23). These allegations refer to no other basis for a cause of action except SWMA § 13, which requires any "landowner . . . engaged in . . . development of land which may affect storm water runoff" to "implement such measures consistent with the provisions of the applicable watershed storm water plan as are reasonably necessary to prevent injury to health, safety or other property." This section requires assurance that the maximum rate *116 of runoff shall be no greater after development than before it or at least that runoff is managed in a manner which otherwise adequately protects health and property from possible injury.
Section 15 of the SWMA declares that violations shall constitute "a public nuisance" and authorizes suits in equity or at law to restrain, prevent or abate violations, and, in subsection (c) of § 15, also allows the recovery of damages in addition to any other remedy. On its face therefore, this complaint constitutes primarily an action in equity relating to an alleged violation of a statutory duty.
Although the state, in its motion for summary judgment, points out that § 4 of the SWMA, 32 P.S. § 680.4, expressly excludes "any department, board, bureau or agency of the Commonwealth" from the definition of a "person" subject to the act, this court can reach that matter of defense, an alleged basis for summary judgment, only if we have jurisdiction to make a decision on the merits.
Count I Vicarious Liability
Pastore's complaint sounds in three separate counts. Count I avers a cause of action based on the fact that the state is the successor in interest to its grantor, one Porreco, and is liable for all actions and inactions by that grantor from 1985, when Maleno, an owner of land having an elevation higher than the grantor's, commenced development of its property, until the time that the state acquired its land in December of 1986. (Complaint ¶ 25)
This Count I, apparently a claim of vicarious liability on the part of the state for the wrongs of its grantor, seeks in the prayer for relief under Count I, four items of relief:
a. Damages as a consequence of SWMA violations by the state's grantor and Maleno;
b. An injunction against the state to bar any further development;
c. Affirmative relief requiring the state to construct a suitable storm water management system to protect Pastore against injury by runoff; and
*117 d. Such other relief as is "necessary to prevent Pastore's property from being damaged by continuing violations of the Storm Water Management Act and violations of the applicable common law."
Count II Land Alteration
Particularly to be noted is the point that the only mention of a legal foundation for this action beyond the SWMA is the reference to "the applicable common law" in the above-quoted final item d. of the prayer for relief.
Count II of the complaint rests upon averments that the state "altered the land" and thereby "has increased the surface water runoff upon the Pastore property" causing past, present and future injury. Under Count II, the complaint requests exactly the same four items of relief, with item (a) claiming damages for SWMA violations by Maleno and the state's grantor, as well as the passing reference to "the applicable common law" in item (d).
Count III Covenant Running with Land
Count III of the complaint avers the existence of a storm water management agreement between the state's grantor and Maleno which "ran with the land" and thus obligated the state as successor in interest to its grantor (complaint ¶ 29). Count III presents averments as to the state's alleged failure to comply with that agreement as a substantial contributing cause of the increase in runoff. The prayer for relief under Count III is exactly the same as the prayer for relief under the two preceding counts.
Summary of Complaint
In summary, a liberal interpretation of the complaint identifies it as having three possible natures:
1. Equity Action For Statutory Violation: A claim for relief under § 15 of the SWMA for violations, vicarious or direct, of § 13 of that Act;
2. Violation Of Covenant Running With The Land: A claim for a violation of an agreement between the state's *118 grantor and Maleno, alleged to bind the state as a covenant running with the land; and
3. An Action For Negligence Or Nuisance Under The Common Law: A claim for negligent or intentional nuisance resulting from the state's construction of a parking lot upon its higher land, so as to increase runoff, allegedly to the point of injury to the Pastore land.
Inclusion of the third category in this interpretation is generous because, as noted above, the only reference to the common law appears within the fourth item in each of the three prayers for relief, and not elsewhere in the complaint.
We now consider these three possible jurisdictional foundations in turn.
Jurisdiction as to Statutory Violations Counts I, II
As noted above, the first two counts of the complaint invoke statutory duty under § 13 of the SWMA, on the ground that, in the words of the statute, there has been a failure to implement measures necessary to prevent injury to health, safety or property by providing assurance that maximum runoff be not increased or be managed in a manner which provides the necessary protection. Examining the jurisdictional environments for such a claim, without going into the merits of alleged vicarious liability or the availability of affirmative relief at this juncture, the conclusion must be that these first two counts do not fall into any of the exceptions to the original jurisdiction of this court stated in 42 Pa.C.S. § 761(a). Because this pair of claims is grounded expressly upon the statutory duty, it clearly does not fall into the eminent-domain exception to our jurisdiction in that it is not seeking damages or compensation for a de facto taking of property through the destruction of it as in the Lerro case.
Moreover, because the complaint rests the alleged duty of the state entirely upon the statute, these Count I and II claims are not founded upon negligence of the state under Chapter 85 of the Judicial Code, and the equity form of action, as well as the statutory premise, takes those counts out of the category of actions or proceedings in the nature of trespass.
*119 Therefore, the conclusion must be that this court has jurisdiction over the claims based upon alleged statutory duty, so that we must proceed to consider the state's motions for summary judgment raising certain legal defenses.
Under these counts, the action must be said to constitute an action in equity against the Commonwealth government under 42 Pa.C.S. § 761(a) not involving the eminent domain, negligence or trespass exceptions.
Jurisdiction as to Count III Covenant Running with the Land
Count III of the complaint refers to and incorporates a "storm water management agreement" of February 19, 1985 between Porreco, the state's grantor, and Maleno Developers, Inc., owner of the higher land. That agreement first refers to and incorporates six earlier agreements between Maleno and Porreco. The new provisions provide that Maleno shall pay Porreco $45,000 in lieu of the construction of a storm water system through the Porreco land, and Porreco agrees to accept the discharge of Maleno's surface water, freeing Maleno from responsibility. The agreement requires no affirmative action of Porreco except to install a storm sewer system if the township should require it.
Paragraph 18 of the agreement states:
18. This Agreement is binding on the heirs, administrators and assigns of the Parties hereto. This Agreement may be construed as an easement for storm water drainage and runoff in the lands of Porreco and it is a covenant running with Porreco's lands.
Paragraph 19 provides that a short form agreement referring to this agreement shall be recorded. Accordingly, these averments present justiciable questions as to whether or not the state, as grantee and assignee of Porreco, an owner of part of the land burdened by the alleged covenant running with it, has assumed any of the burdens and obligations of Porreco stated in the agreement.
Because this cause of action is clearly not one for eminent domain, negligence or trespass, but is founded upon a covenant *120 running with the land in the nature of an equitable servitude, the only possible exception which could be applicable is the Board of Claims exception, 42 Pa.C.S. § 761(a)(1)(iv), embracing actions pursuant to the Board of Claims Act of May 20, 1937, P.L. 728, as amended.
Section 4 of that Act, as amended by the Act of October 5, 1978, P.L. 1104, § 3, 72 P.S. §§ 4651-4, gives that board "exclusive jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereinafter entered into with the Commonwealth, where the amount in controversy amounts to $300.00 or more." (Not pertinent is the additional jurisdiction to review claims against the Commonwealth adjusted and settled under the Fiscal Code.) Here the determinative issue is whether a contract entered into by the state's grantor and alleged to run with the land acquired by the state, constitutes a contract "entered into with the Commonwealth.. . ." Because the covenant in this case rests on a contract entered into by parties other than the state and burdens the state (if it does at all) as "an easement for storm water drainage and runoff," this claim is clearly in the nature of an incorporeal hereditament related to the land, rather than based upon a contract "entered into with the Commonwealth."
Accordingly, the conclusion on this count must be that jurisdiction does lie within this court to adjudicate and thereby consider the merits of Count III based on a covenant running with the land.
Action for Negligence or Nuisance Under the Common Law
Although the complaint contains no separate count averring a cause of action based upon the common law of negligence or nuisance, the liberal construction of claims enjoined upon us by Pa.R.C.P. No. 126 requires us to take notice of this basis for a cause of action even though the Pastore complaint articulates it only under the heading of a prayer for relief. There are factual averments in other paragraphs of the complaint sufficient to support allegations of common law liability; we specifically note the claim as to the state's construction of a parking lot, in paragraph 17 of the Complaint.
*121 However, a common law claim based on negligence clearly falls within Chapter 85 of the Judicial Code and is also an action in the nature of trespass as to which the Commonwealth formerly enjoyed sovereign immunity. Those bases for a claim are excluded from our jurisdiction by virtue of subitems (iii) and (v) of 42 Pa.C.S. § 761(a)(1).
Therefore, this court lacks original jurisdiction to consider and try any constituent actions for negligence or nuisance, on the part of the state, under the common law. As noted, jurisdiction to adjudicate those claims, including the threshold determination of whether or not the state is immune under Chapter 85 of the Judicial Code, 42 Pa.C.S. § 8628, must in the first instance be considered by the Court of Common Pleas of Erie County.
Remaining before this court are only (1) the claim based upon the SWMA, and (2) the claim based upon covenants imposed upon the land, to run with it, by the state's grantor.
MOTIONS FOR SUMMARY JUDGMENT
State's Motion
The state is seeking summary judgment in relation to three issues:
1. Sovereign immunity pursuant to Chapter 85 of the Judicial Code in that none of the exceptions to immunity are applicable;
2. Whether the SWMA itself is applicable to the state, and, if so, whether sovereign immunity applies if none of the exceptions are available; and
3. Whether Pastore is barred from obtaining any affirmative equity relief against the Commonwealth in the nature of requiring construction of facilities on the state's land.
As noted above, whether or not sovereign immunity applies as a shield for the state with respect to the claims founded upon negligence and upon trespass for nuisance must, in the *122 first instance, be determined by the trial court which has jurisdiction of those matters.
Claim for Statutory Violations under SWMA
Examination of the Storm Water Management Act of October 4, 1978, P.L. 864, discloses that its sanctions do not apply to the state itself. Section 4 of the Act, 32 P.S. § 680.4, makes the point clear in the definition section which reads, in pertinent part, as follows:
Whenever used in any section prescribing or imposing a penalty, the term `person' shall include the members of a partnership, the officers, members, servants and agents of an association, officers, agents and servants or a corporation, and the officers of a municipality or county but shall exclude any department, board, bureau or agency of the Commonwealth. (Emphasis supplied.)
Therefore, the state is entitled to summary judgment in its favor with respect to the claim founded upon the SWMA insofar as that claim relates to alleged action by the state in constructing its parking lot or otherwise.
Closely related are the vicarious liability claims made under Count I of the complaint, which reads:
25. It is alleged that Edinboro [the state] is the successor in interest to Porreco regarding the property which it acquired and/or leased from Porreco, . . . and Edinboro is liable for all actions and/or inactions by Porreco from 1985 when Maleno commenced development of its property up until the time that Edinboro acquired this property from Porreco in December of 1986.
Plainly, because this count expressly is confined to actions by the state's grantor before the state acquired any property material to this case, it is founded upon some theory of vicarious liability with respect to violations of the Storm Water Management Act and presumably with respect to other common law wrongs allegedly committed by the predecessor-in-interest.
*123 The nature of this claim is clearly one of vicarious liability. With respect to it, as a theory of liability, Pastore's brief contains one sentence, as follows:
One [the state] took Porreco's liability for that portion of land which [the state] received by gift from Porreco because at the time [the state] took the property, it had actual notice of Pastore's claim against Porreco.
Because the Pastore brief offers no authority for this kind of liability and research discloses none, the state's entitlement to summary judgment with respect to this vicarious liability claim under Count I is clear.
We further note that Pastore's brief in response to the motion for summary judgment states "that there are three separate theories of liability against" the state. However, after mentioning the vicarious liability, the Pastore brief deals only with alleged liability arising from the state's alteration of the property after it received the property and built a parking lot which allegedly increased the surface water runoff onto the Pastore property.
As noted above, liability for that action founded upon the SWMA cannot be asserted against the state, which the legislature has left outside of that statute. The only other possible theory of liability is the common law negligence or trespass claims which are to be left to the trial court, consolidated with the like claims against the private higher landowners.
Affirmative Relief
Finally, the state seeks summary judgment as to any affirmative relief such as that sought by Pastore in the third item of each of the three separate, but identical, prayers for relief.
This court has stated:
By familiar principles, the [sovereign immunity] doctrine does not bar suits which seek to restrain state officials from performing affirmative acts, but it does bar suits against the Commonwealth which `seek to compel affirmative action on the part of state officials.' Philadelphia Life Insurance Co. v. Commonwealth, 410 Pa. 571, 576, 190 A.2d 11, 114 (1963). *124 See, e.g., Nagle v. Pennsylvania Insurance Department, 46 Pa. Commonwealth Ct. 621, 638, 406 A.2d 1229, 1238 (1969); PennDOT v. Lishon, 46 Pa. Commonwealth Ct. 90, 94-5, 405 A.2d 1128, 1130 (1979).
Borough of Jefferson v. Century III, 60 Pa.Commonwealth Ct. 94, 98, 430 A.2d 1040, 1042-43 (1981).
Township's Motion for Summary Judgment
In its complaint to join Millcreek Township as an additional defendant, the state alleges that "if the present storm system owned and operated by Millcreek Township is inadequate and is causing the alleged flooding on the Pastore property, then Millcreek Township is solely responsible to the original defendants and liable to them upon the cause of action stated in plaintiffs' Complaint."
At this juncture, there is no basis for granting the township's motion for summary judgment because the chief basis for doing so, the local agency immunity under 42 Pa.C.S. § 8542(b) does not shield the township with immunity with respect to the narrow scope of the state's claim against it. Under subitem (5) of 42 Pa.C.S. § 8542(b), a dangerous condition of sewer facilities is one of the stated exceptions to the township's immunity, and the complaint to join the additional defendant has been narrowly drawn to claim liability only on the basis of inadequacy of the storm sewer system owned and operated by the township. Medicus v. Upper Merion Township, 82 Pa.Commonwealth Ct. 303, 475 A.2d 918 (1984).
Leggieri v. Haverford Township, 98 Pa.Commonwealth Ct. 646, 511 A.2d 955 (1986), provides no authority for township immunity under the allegations present here because that case involved the township only with respect to its action in approving a subdivision, not with respect to its ownership and operation of a storm sewer system.
Accordingly, the township's motion for summary judgment must be denied at this juncture.
*125 CONCLUSION
Based upon the conclusions of law established above, an order will follow to the effect that:
1. As to the claim based upon vicarious liability of the state for its grantor's alleged violations of the SWMA, a matter within our jurisdiction, summary judgment in favor of the state will be granted because no basis for such vicarious liability appears;
2. With respect to the claim of the state's liability for violation of the SWMA, a claim within the jurisdiction of this court, summary judgment will be granted in favor of the state because the state is not subject to the SWMA;
3. Claims under the common law or otherwise in the nature of trespass actions for negligence or nuisance are not within the jurisdiction of this court, and those claims shall be transferred to the Court of Common Pleas of Erie County to be consolidated with the like claims against the private landowners which remain in cases there; and
4. As to the claim of Count III, based upon the Storm Water Management Agreement as an agreement, covenant or easement running with the land, which claim is within the jurisdiction of this court, the Commonwealth shall be granted summary judgment in its favor with respect to any affirmative relief thereunder;
5. The township's motion for summary judgment will be denied; and
6. Pastore shall, within thirty days after the date of this order, file a pre-trial report informing the court with respect to its claim under covenant or easement running with the land, what Pastore would be prepared to prove and claim with respect to that theory of liability, and the state shall have twenty days, after being served with that status report, to respond to it.
*126 ORDER
NOW, December 4, 1992, upon consideration of the pleadings, briefs and arguments, it is hereby ORDERED as follows:
1. The motion of respondent Commonwealth of Pennsylvania State System of Higher Education for the use of Edinboro University of Pennsylvania (the state) for summary judgment is granted as to the claim in Count I of the complaint alleging liability against the state for actions and inactions of its predecessor in interest;
2. The motion of the state for summary judgment with respect to Count II, relating to alleged violations of the Storm Water Management Act, is granted;
3. The motion of the state for summary judgment with respect to Count III of the complaint, relating to the Storm Water Management Agreement, is granted with respect to any and all claims for affirmative equitable relief and is otherwise denied;
4. The motion of additional defendant Millcreek Township for summary judgment is denied;
5. All claims in this case under the common law or otherwise in the nature of trespass actions seeking damages for negligence or nuisance, including such claims of the plaintiff against the state and such claims of the state against additional defendant Millcreek Township, are hereby retransferred to the Court of Common Pleas of Erie County, to be consolidated with the like claims against the private landowners which remain in the related separate cases there; and
6. To the extent that the claim in Count III of the complaint remains within the jurisdiction of this court in relation to claims for negative injunctive relief and damages, the plaintiffs shall, within thirty days after the date of this order, file with this court a pre-trial report containing:
(a) A statement of what plaintiffs are prepared to prove and claim with respect to that theory of liability; and
(b) A list of witnesses and list of exhibits which plaintiffs will offer with respect to the same.
*127 7. The state, within twenty days after being served by the pre-trial report of the plaintiffs, shall file a response listing the witnesses and exhibits which the state proposes to offer with respect to the same.
SMITH, Judge, dissenting.
I must respectfully dissent to the Majority's conclusion that this Court must assume original jurisdiction over certain claims asserted by Pastore and transfer his remaining claims to the Court of Common Pleas of Erie County. In so concluding, the Majority mischaracterizes the nature of Pastore's action thereby resulting in a misapplication of Section 761 of the Judicial Code, as amended, 42 Pa.C.S. § 761. The Majority states that this action is primarily one in equity based upon alleged violations of a statutory duty under the Storm Water Management Act (Storm Act), Act of October 4, 1978, P.L. 864, 32 P.S. §§ 680.1-680.17 and that this Court shall assume jurisdiction over all claims set forth in Counts I, II and III of the complaint, except those claims based upon common law negligence or nuisance.
Pastore sets forth three possible theories of recovery. Count I is based upon Edinboro's status as a successor in interest to Porreco and negligence committed by Porreco before Edinboro acquired his property; County II is based upon Edinboro's negligence in altering the land acquired from Porreco increasing the surface water runoff; and Count III sets forth Edinboro's alleged violation of the storm water management agreement between Maleno and Porreco which, according to Pastore, runs with the land. In each count, Pastore demands damages and injunctive relief. Pastore's allegations clearly demonstrate that he is primarily seeking damages caused by flooding of his property due to an increase and alteration of storm and surface water runoff.[1]
*128 The fact that Pastore seeks injunctive relief, in addition to his claims for damages, does not provide a basis for this Court's assumption of original jurisdiction because this action constitutes an action conducted pursuant to provisions governing the waiver of sovereign immunity under Section 761(a)(1)(iii) and "an action or proceeding in the nature of trespass" as to which the Commonwealth government formerly enjoyed sovereign or other immunity under Section 761(a)(1)(v). The Majority concludes, however, that to the extent Pastore bases his claims upon violation of the Storm Act, this Court has original jurisdiction because those claims are not founded upon common law negligence and therefore are not in the nature of trespass.
The Majority's conclusion is contrary to the principle established in Balshy v. Rank, 507 Pa. 384, 490 A.2d 415 (1985), in which the Pennsylvania Supreme Court rejected the argument that an action brought under 42 U.S.C. §§ 1983, 1985 are not actions in the nature of trespass under Section 751(a)(1)(v) because they are based upon statutory and not common law remedies. After explaining the historical basis for Section 761(a)(1)(v), the Court held that Sections 1983 and 1985 created a species of tort liability and provided remedies available to plaintiffs "in an action for damages" and that actions against the Commonwealth or its officers for money damages, whether based upon statutory or common law liability, are outside this Court's original jurisdiction.
Section 16(b) of the Storm Act, 32 P.S. § 680.16(b), provides that "[i]t is hereby declared to be the purpose of this act to provide additional and cumulative remedies to abate nuisances." Section 13, 32 P.S. § 680.13, sets forth obligations of landowners engaged in the alteration of land to implement measures reasonably and necessary to prevent injury to health, safety or other property; and under Section 15, 32 P.S. § 680.15, any person injured due to violations of the Storm Act can recover damages in an action at law and may further seek injunctive relief in an action in equity. At common law, *129 property owners have a cause of action for damages to their property resulting from the increased flow of surface water caused by an artificial use of adjoining land. Westbury Realty Corp. v. Lancaster Shopping Center, Inc., 396 Pa. 383, 152 A.2d 669 (1959). Therefore, Pastore's action, whether based upon provisions of the Storm Act or common law negligence, constitutes an action in the nature of trespass under Section 761(a)(1)(v) and consequently deprives this Court of original jurisdiction over Pastore's claims.
Moreover, where an action turns on the same legal question, an action in equity may be joined with an action at law. Meara v. Hewitt, 455 Pa. 132, 314 A.2d 263 (1974). Where an adequate legal remedy exists, it is appropriate for a court in equity to transfer the case to the law side of the court for disposition. Fawber v. Cohen, 516 Pa. 352, 532 A.2d 429 (1987). Also, an action in equity is inappropriate where the measure of damages in trespass actions is flexible enough to properly recompense the plaintiffs. Id. Thus, this Court may properly transfer the entire case sub judice to the trial court for its disposition.[2]
In addition, Pa.R.C.P. No. 1020(d) provides that if a transaction or occurrence gives rise to more than one cause of action against the same person, they shall be joined in separate counts in the action against any such person. Failure to assert a cause of action under this mandatory joinder rule *130 results in a waiver of that claim. Hineline v. Stroudsburg Electric Supply Co., 402 Pa.Superior Ct. 178, 586 A.2d 455, appeal denied, 528 Pa. 630, 598 A.2d 284 (1991). The purpose of this rule is to insure that a cause of action arising out of the same transaction or occurrence be tried together in the same action to prevent piecemeal litigation. Id. Pastore complied with this mandatory joinder rule and set forth three theories of recovery in the complaint. However, the Majority splits the causes of action and creates a result which is inimical to the purposes of Rule 1020.
A clear example of the anomaly presented by splitting the causes of action for trial purposes is shown by this Court's decision to transfer to the trial court all claims based upon common law negligence and to assume jurisdiction over those claims based upon violation of the storm water management agreement, although Pastore is seeking damages caused by a single harm, i.e., flooding from the increased storm and surface water flow. In this situation, evidence for assessing damages under either theory of tort or breach of contract would be duplicative; it therefore becomes evident that two separate trial proceedings required by this Court's decision would neither serve judicial economy nor otherwise comply with mandates of the Judicial Code. I would therefore transfer the entire case to the trial court for its disposition.
KELLEY, J., joins in this dissent.
NOTES
[1] An action at law and an action in equity are merely forms of actions, and a choice of form does not determine the question of jurisdiction. West Homestead Borough School Dist. v. Allegheny County Board of School Directors, 440 Pa. 113, 269 A.2d 904 (1970). See also Gedekoh v. Peoples Natural Gas Co., 183 Pa.Superior Ct. 511, 133 A.2d 283 (1957).
[2] The term "action or proceeding" under Section 761 of the Judicial Code includes the entire case arising out of a single or series of transactions or occurrences, and judicial economy is advanced by permitting a comprehensive disposition of litigation in one proceeding. Department of General Services v. Frank Briscoe Co., 502 Pa. 449, 466 A.2d 1336 (1983). Section 931(a) of the Judicial Code, 42 Pa.C.S. § 931(a), provides that "[e]xcept where exclusive original jurisdiction of `an action or proceeding' is . . . vested in another court of this Commonwealth, the courts of common pleas shall have unlimited jurisdiction of `all actions and proceedings,' including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas." Applying the definition of "action or proceeding" to this case, the trial court inevitably has original jurisdiction over the entire case whether arising out of a single or a series of transactions or occurrences. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261746/ | 152 Pa. Commonwealth Ct. 258 (1992)
618 A.2d 1193
Abraham A. CONSTANTINO, Jr. and Rose Constantino, Appellants,
v.
ZONING HEARING BOARD OF the BOROUGH OF FOREST HILLS, Borough of Forest Hills.
Commonwealth Court of Pennsylvania.
Argued October 19, 1992.
Decided December 17, 1992.
*260 Joseph J. Chester, for appellants.
Sanford Kelson, for appellees.
Before SMITH and PELLEGRINI, Judges, and LORD, Senior Judge.
SMITH, Judge.
Abraham A. Constantino, Jr., and Rose Constantino (Appellants) appeal from the December 16, 1991 order of the Court *261 of Common Pleas of Allegheny County which affirmed the decision of the Zoning Hearing Board of the Borough of Forest Hills (Board) denying Appellants' request for a variance. Issues raised for review are whether substantial evidence supports the Board's findings regarding the height of a wall built by Appellants which exceeds height restrictions imposed by the municipal zoning ordinance; and, if so, whether Appellants' deviation from the ordinance is de minimis so that a variance should be granted.
On June 27, 1990, Appellants obtained from the Borough of Forest Hills (Borough) a permit to build a brick wall along the entire northern side boundary of the property upon which their personal residence is located. As set forth in the Borough's zoning ordinance, a structure such as Appellants' brick wall is identified as a "retaining wall" toward the front portion of the wall and a "fence" toward the rear portion of the wall. The zoning ordinance provides for a height limitation of five feet for fences along side and rear yards and a limit of six inches for retaining walls along front yards.
During construction of the wall in November 1990, the Borough manager made an inspection and determined that it exceeded the five-foot height limitation. He twice informed the contractor building the wall that it exceeded the dimensions set forth in the permit application and that construction should cease, but was told that Appellants directed that the wall be built that way. On November 30, 1990, the Borough manager served Appellants with an enforcement notice charging violations of the zoning ordinance's height restrictions on fences and retaining walls. The enforcement notice also modified Appellants' original permit to allow a fence in the side and rear yard to the height of five feet above the original grade of the yard.[1] Appellants were advised to begin compliance with the ordinance and with the permit as modified within ten days and to be in full compliance within fifteen days. The notice also stated that Appellants had the right to appeal the Borough's *262 determination to the Board within ten days. Appellants neither complied with the notice nor appealed the determination. The Borough thereafter sought enforcement remedies for the violation pursuant to Section 617 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10617.
On January 28, 1991, after a hearing on the Borough's enforcement notice, a magistrate fined Appellants $50 daily but, upon agreement by the Borough, stayed collection of the fine if Appellants filed a timely appeal of the magistrate's adjudication and/or requested a variance from the Board. Appellants requested a variance from the Board which issued a determination dated April 23, 1991 denying Appellants' request. The Board found as fact that at the rear portion of Appellants' property the wall is nine feet high as measured from Appellants' original grade; that the wall along most of the remainder of the side yard is seven and one-half feet high; and that the retaining wall along the front yard exceeds six inches in height, at one point being three and one-half feet high. On appeal, the trial court affirmed the Board's decision and Appellants' appeal from that decision is now before this Court.[2]
Appellants first argue that the Board incorrectly determined the height of the wall because it measured the height from the grade of the adjoining property rather than from Appellants' original grade. Appellants cite the November 30, 1990 modification of their permit allowing a wall five feet above the original grade of the yard and rely on testimony and photographic evidence which allegedly support their contention *263 that the original grade of their yard is three to four feet above the grade of the adjoining property. Therefore, Appellants assert, measurements of the wall taken on the side of the adjoining property as well as those taken from the top of a previously-existing stone retaining wall on the adjoining property were in error since Appellants' brick wall will not exceed the height restrictions of the ordinance once backfilling on their side of the wall is complete.
Appellants' contention both mischaracterizes the evidence presented to the Board and misperceives the nature of the Board's findings.[3] The Borough presented evidence of the height of Appellants' wall as measured from the approved original grade indicated on their permit and not from the grade of the adjoining property. Measurements taken on Appellants' side of the wall the day of the Board's hearing showed that the wall considerably exceeded the ordinance requirements. The approved plan indicates the location of the original grade with a fine dotted line above which the wall was exactly five feet in height or less along the side and rear yard. Nevertheless, Appellants erected the wall higher than the approved plan's five-foot limit by up to four feet in some areas.
Furthermore, Appellants' claim that their original grade is three to four feet higher than the neighboring property grade is neither borne out by the photographic exhibits nor by the testimony found credible by the Board. This evidence reveals that Appellants' home is located on property which slopes downward from the house to the property line in question. Thus, the "original grade" at the property line, as envisioned in both the ordinance and the enforcement notice, is lower than the grade at the foundation of Appellants' home.
Based on evidence that the original grade was at or slightly above the top of the previously-existing stone retaining wall on the adjoining property, the Board specifically *264 rejected Appellants' assertion of where the original grade was located and noted that they were projecting a grade which was level with the foundation of the house. In fact, there was evidence to show that there was fill material being placed on Appellants' side of the wall in an attempt to raise their grade. The Board properly relied upon this evidence in determining the amount by which Appellants' wall exceeded the height limitations imposed by the ordinance. The Board as factfinder is the sole judge of credibility and conflict in testimony and has the power to reject even uncontradicted testimony if the Board finds the testimony lacking in credibility. Vanguard Cellular System, Inc. v. Zoning Hearing Board of Smithfield Township, 130 Pa.Commonwealth Ct. 371, 568 A.2d 703 (1989), appeal denied, 527 Pa. 620, 590 A.2d 760 (1990); Abbey v. Zoning Hearing Board of the Borough of East Stroudsburg, 126 Pa.Commonwealth Ct. 235, 559 A.2d 107 (1989).
A party seeking a variance bears the burden of proving that (1) unnecessary hardship will result if the variance is denied, (2) the hardship is unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on the entire district, and (3) the proposed use will not be contrary to the public interest. Valley View Civic Ass'n v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983); Chacona v. Zoning Board of Adjustment, 143 Pa.Commonwealth Ct. 408, 599 A.2d 255 (1991). In proving unnecessary hardship, a property owner must show, inter alia, that the hardship is not self-created. Curtis Investment Co. v. Zoning Hearing Board of the Borough of West Mifflin, 140 Pa.Commonwealth Ct. 302, 592 A.2d 813 (1991). Furthermore, the reasons underlying a grant of a variance must be substantial, serious, and compelling. McClintock v. Zoning Hearing Board of Fairview Borough, 118 Pa.Commonwealth Ct. 448, 545 A.2d 470 (1988).
As found by the Board and the trial court, Appellants wholly failed to present any evidence establishing unnecessary hardship. Moreover, since Appellants continued to construct their wall beyond the limits imposed by the ordinance and the *265 original permit despite warnings and an enforcement notice from the Borough advising them to the contrary, any hardship they have encountered is entirely self-created. Appellants therefore did not meet their requisite burden of proof.
Appellants last argue that a variance should be granted because their violation is a de minimis variation. Variances may be granted where de minimis deviations from a zoning ordinance occur, even though the traditional grounds for a variance may not have been met. West Bradford Township v. Evans, 35 Pa.Commonwealth Ct. 167, 384 A.2d 1382 (1978). However, the de minimis doctrine is a narrow exception to the heavy burden of proof placed on a property owner seeking a variance, and it applies where only a minor deviation from the zoning ordinance is sought and rigid compliance is not necessary to protect the public policy concerns inherent in the ordinance. Chacona.
Testimony established that the average violation along the length of the entire wall was 20%, with some points exceeding a 50% violation. Such deviations from the ordinance do not qualify as de minimis. See Chacona (variance under de minimis standards not justified where addition would require 33% variance from rear yard requirements); D'Amato v. Zoning Board of Adjustment of the City of Philadelphia, 137 Pa.Commonwealth Ct. 157, 585 A.2d 580 (1991) (variation of approximately 13% from open area requirement is not de minimis); Leonard v. Zoning Hearing Board of the City of Bethlehem, 136 Pa.Commonwealth Ct. 182, 583 A.2d 11 (1990), appeal denied, 529 Pa. 665, 604 A.2d 1032 (1991) (500 square-foot deviation from 8000 square-foot lot size requirement, amounting to a 6.25% variation, is not de minimis); and Andreucci v. Zoning Hearing Board of Lower Milford Township, 104 Pa.Commonwealth Ct. 223, 522 A.2d 107 (1987) (approximate 15% deficiency from minimum lot size requirement is not de minimis).[4] Accordingly, finding no error in the Board's decision, the order of the trial court is affirmed.
*266 ORDER
AND NOW, this 17th day of December, 1992, the order of the Court of Common Pleas of Allegheny County dated December 16, 1991 is affirmed.
NOTES
[1] This modification was for the purpose of allowing Appellants to build up to five feet those sections of the wall which were less than five feet high as indicated on the original plan.
[2] In zoning appeals, where the trial court takes no additional evidence, this Court's scope of review is limited to determining whether the Board committed an abuse of discretion or an error of law. Atlantic Refining & Marketing Corp. v. Board of Comm'rs of York Township, 147 Pa.Commonwealth Ct. 418, 608 A.2d 592 (1992). A conclusion that the Board abused its discretion may be reached only if its findings are not supported by substantial evidence. Valley View Civic Ass'n v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983); Hoopes v. Zoning Hearing Board of Haverford Township, 134 Pa.Commonwealth Ct. 26, 578 A.2d 63 (1990), appeal denied, 527 Pa. 655, 593 A.2d 426 (1991).
[3] Although Appellants assert that their wall did not violate the height limitations imposed by the zoning ordinance, they nevertheless failed to comply with or appeal from the enforcement notice, thus establishing their violation. Section 616.1 of the MPC, added by Section 60 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10616.1.
[4] Additionally, this is not a case in which a de minimis variance should be granted to relieve Appellants of the hardship of altering their structure to comply with the ordinance, as in Pyzdrowski v. Pittsburgh Board of Adjustment, 437 Pa. 481, 263 A.2d 426 (1970). The concern in Pyzdrowski and similar cases was with the practical difficulty that enforcing the ordinance would require moving an entire building. In the matter sub judice, the expense of reducing the height of Appellants' brick wall is certainly not as great as that involved in relocating an existing building. See Gottlieb v. Zoning Hearing Board of Lower Moreland Township, 22 Pa.Commonwealth Ct. 365, 349 A.2d 61 (1975) (homeowners were required to relocate concrete "pad" surrounding swimming pool that violated township's setback requirement). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261751/ | 132 Cal.Rptr.2d 665 (2003)
107 Cal.App.4th 1062
The PEOPLE, Plaintiff and Respondent,
v.
Joshua Mark O'CONNELL, Defendant and Appellant.
No. C040876.
Court of Appeal, Third District.
April 11, 2003.
*666 Joseph B. dellly, under appointment by the Court of Appeal, Sacramento, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, J. Robert Jibson and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
MORRISON, J.
Joshua Mark O'Connell was convicted of several drug offenses and referred to a drug treatment program. The trial court terminated appellant from the program after he failed to attend any sessions. In this appeal we reject appellant's claim that his termination was based on inadmissible hearsay. We will remand the case, however, because the court ordered appellant to pay for the costs of probation supervision without inquiring into his ability to pay.
FACTS AND PROCEEDINGS
Appellant was charged by complaint with one count of possession of a controlled substance (Health & Saf.Code, § 11377, subd. (a)), and one count of misdemeanor possession of drug paraphernalia (Health & Saf.Code, § 11364).
Appellant pleaded guilty to both counts on July 31, 2001. Appellant was placed on probation for three years on condition he participate in the deferred entry of judgment program, which required, inter alia, that he attend drug counseling sessions.
On January 8, 2002, appellant's probation officer filed a report requesting that appellant show cause why he should not be terminated from the deferred entry of judgment program due to too many absences. Attached to the report was an "Adult Drug Program Termination Report" prepared by Sam Beasley, the program manager for Valley Community Counseling Services. This document stated that appellant had been terminated from the program as a result of too many absences. It stated: "This client completed 0 of 20 Sessions."
On January 17, 2002, the court held an arraignment hearing on appellant's alleged failure to participate in the deferred entry of judgment program. At that hearing, appellant explained that he was unable to attend his work project assignment or Valley Community Counseling because "I was never able to start work and wasn't able to pay the fines and that's why I didn't go." Appellant also failed to report to the jail in Stockton because "I had no way to get there or anything."
At a subsequent hearing on appellant's alleged violation of the deferred entry of *667 judgment program, appellant objected to Beasley's report on hearsay grounds.
In response, the court stated: "I'll indicate here for both counsel that the cases the Court is familiar with allow documentary evidence during the normal course, sometimes called the Government Records Exception, but it is, frankly, hearsay as you are indicating, but it does allow such documentation to be received, especially in probation violation proceedings and with specific case authority cited in this court many times to reflect that.
"The objections are always noted and, frankly, it's typically found that they go to the weight and the reliability of the documents rather than the threshold for admission.
"In this case we have got the file that came out of this court from the plea on July 31st. The transcript of that plea is present in the court file. The Court ordered Mr. O[`C]onnell to attend a certain program through Valley Community in that proceeding.
"The referrals back both from Valley Community and from the probation department reference this court file and it also references the particular sentencing procedure that we have the transcript of.
"So, frankly, the authenticity of the return from the program and from probation appears sufficiently based here and shown to the Court."
Thereafter the court found appellant in violation of the deferred entry of judgment program. The court placed appellant on probation for five years, referred him to a Proposition 36 program, and ordered him to pay the reasonable costs of probation supervision.
DISCUSSION
Alleged Hearsay Violation
Relying principally on People v. Arreola (1994) 7 Cal.4th 1144, 31 Cal.Rptr.2d 631, 875 P.2d 736 (Arreola), and People v. Winson (1981) 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55 (Winson), appellant argues he should not have been found in violation of the deferred entry of judgment program because the finding was based on inadmissible hearsay.
In Arreola, supra, 7 Cal.4th at page 1150, 31 Cal.Rptr.2d 631, 875 P.2d 736, the defendant objected on several grounds to the use of a preliminary hearing transcript at a probation revocation hearing. The defendant asserted hearsay and lack of foundation in that there had been no showing of the declarant unavailability or other good cause. The trial court admitted the transcript without finding good cause. (Id. at p. 1151, 31 Cal.Rptr.2d 631, 875 P.2d 736.) Reaffirming its holding in Winson, supra, 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55, Arreola concluded that the arresting officer's testimony at a preliminary hearing on new charges forming the basis for revocation of probation was inadmissible at the probation revocation hearing absent a showing of good cause or witness unavailability. (Arreola, supra, 7 Cal.4th at pp. 1159-1161, 31 Cal.Rptr.2d 631, 875 P.2d 736.) Arreola explained the rule in Winson that a transcript of preliminary hearing testimony is an improper substitute for live testimony at a revocation hearing was not modified by its decision in People v. Maki (1985) 39 Cal.3d 707, 217 Cal.Rptr. 676, 704 P.2d 743 (Maki). (Arreola, supra, 7 Cal.4th at pp. 1153-1157, 31 Cal.Rptr.2d 631, 875 P.2d 736.)
In Maki the court noted its qualification in Winson, supra, 29 Cal.3d 711, 175 Cal. Rptr. 621, 631 P.2d 55, that the right of confrontation is "not absolute and where `"appropriate," witnesses may give evidence by document, affidavit or deposition *668 [citations].' [Citation.]" (Maki, supra, 39 Cal.3d at p. 710, 217 Cal.Rptr. 676, 704 P.2d 743.) The court concluded that a car rental invoice with defendant's signature was sufficiently trustworthy. (Id. at pp. 714-717, 217 Cal.Rptr. 676, 704 P.2d 743.)
"There is an evident distinction between a transcript of former live testimony and the type of traditional `documentary' evidence involved in Maki that does not have, as its source, live testimony. [Citation.]" (Arreola, supra, 7 Cal.4th at p. 1157, 31 Cal.Rptr.2d 631, 875 P.2d 736.)
"As long as hearsay testimony bears a substantial degree of trustworthiness it may legitimately be used at a probation revocation proceeding. [Citations.] In general, the court will find hearsay evidence trustworthy when there are sufficient `indicia of reliability.' [Citation.] Such a determination rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. [Citation.]" (People v. Brown (1989) 215 Cal.App.3d 452, 454-155, 263 Cal.Rptr. 391.)
The standard of proof required at a probation violation hearing is a preponderance of the evidence to support the violation. (People v. Rodriguez (1990) 51 Cal.3d 437, 441, 447, 272 Cal.Rptr. 613, 795 P.2d 783; People v. McGavock (1999) 69 Cal.App.4th 332, 337, 81 Cal.Rptr.2d 600.)
The alleged inadmissible hearsay in the present case consisted of a single-page report from Sam Beasley, the program manager of Valley Community Counseling Services. The report stated that appellant had been terminated from the program due to "Too Many Absences." Beasley added: "This client completed 0 of 20 Sessions."
Contrary to appellant's assertions, we believe Beasley's report is akin to the documentary evidence that traditionally has been admissible at probation revocation proceedings. Unlike the fact patterns in Winson, supra, 29 Cal.3d 711, 175 Cal. Rptr. 621, 631 P.2d 55 and Arreola, supra, 7 Cal.4th 1144, 31 Cal.Rptr.2d 631, 875 P.2d 736, where the prosecution proposed to use former testimony, Beasley's report was prepared contemporaneously to, and specifically for, the hearing where appellant's lack of compliance with the deferred entry of judgment program was at issue.
The court noted that such reports were routinely received without undertaking the added burden of calling the author to authenticate it because the reports were prepared in response to a referral from the court.
Appellant's only response was to speculate that the reports were unreliable. Defense counsel stated: "If the district attorney is just going to present this, basically, Complaint as their evidence that Mr. O[`C]onnell has violated his deferred entry of judgment, you are denying Mr. O[`C]onnell his right to cross-examine these witnesses who would have accused him, and how do we know that this is reliable? How do we know how many absences Mr. O[`C]onnell has? How do we know who kept these records and whether or not roll was taken."
The difficulty we have with defense counsel's ruminations is that they do not, without more, undermine the trial court's conclusion that Beasley's report bore the requisite indicia of reliability and trustworthiness so as to be admissible. Our conclusion is buttressed by appellant's apparent admission at the January 17, 2001, hearing that he had not undertaken jail time, work project, and counseling due to financial and transportation difficulties. In sum, if there be error, it was harmless.
*669 Probation Costs
Turning to the issue of costs of probation supervision, appellant contends the court erred by ordering him to pay such costs without inquiring into his ability to pay, as required by Penal Code section 1203.1b.[1]
Here, there is no indication that the probation department or the court made a determination of appellant's ability to pay for formal probation supervision, or that appellant was ever informed by anyone of his right to a court hearing on his ability to pay, or that appellant knowingly and intelligently waived such a hearing, as required by section Penal Code section 1203.1b. (See People v. Bennett (1987) 196 Cal.App.3d 1054, 1056-1057, 242 Cal.Rptr. 380.)
The People concede the case should be remanded to allow the trial court to take a knowing and intelligent waiver of a hearing from defendant or to conduct a hearing as provided in Penal Code section 1203.1b.
We note that any order for payment of probation costs should be imposed not as a condition of probation but rather as a separate order. (People v. Hart (1998) 65 Cal.App.4th 902, 906-907, 76 Cal.Rptr.2d 837.)
DISPOSITION
The portion of the order granting probation that requires appellant to pay the costs of probation pursuant to Penal Code section 1203.1b is vacated. The case is remanded to the trial court for the redetermination of probation-related costs as discussed in the opinion. The order placing defendant on probation is otherwise affirmed.
We concur: SIMS, Acting P.J., and NICHOLSON, J.
NOTES
[1] Penal Code section 1203.1b, subdivision (a), governs payment by a defendant of probation-related costs. It provides in pertinent part:
"(a) In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report pursuant to Section 1203.7, of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203, ... The reasonable cost of these services and of probation supervision or a conditional sentence shall not exceed the amount determined to be the actual average cost thereof. A payment schedule for the reimbursement of the costs of preplea or presentence investigations based on income shall be developed by the probation department of each county and approved by the presiding judge of the superior court. The court shall order the defendant to appear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer, or his or her authorized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant's ability to pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver." (Italics added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261757/ | 261 N.J. Super. 332 (1993)
618 A.2d 914
LOUIS FUSCO, PLAINTIFF,
v.
CITY OF UNION CITY, DEFENDANT-APPELLANT, AND C & C REALTY AND C & C ASSOCIATES, DEFENDANTS-RESPONDENTS, AND THE PLANNING BOARD OF THE CITY OF UNION CITY, ST. MICHAEL'S DEVELOPMENT AND HOWARD SAVINGS BANK, DEFENDANTS.
Superior Court of New Jersey, Appellate Division.
Argued December 15, 1992.
Decided January 14, 1993.
*334 Before Judges BILDER and BAIME.
Leon S. Segen argued the cause for appellant (Scarinci & Hollenbeck, attorneys; Leon S. Segen, on the brief).
Richard A. Brovarone argued the cause for respondents (Oury, Mizdol & Brovarone, attorneys; Richard A. Brovarone, on the brief).
The opinion of the court was delivered by BAIME, J.A.D.
At issue is whether a creditor's acceptance of partial payment of a debt by a third person creates a novation extinguishing the obligation of the original debtor. Union City appeals from the *335 Law Division's order, denying its motion to compel C & C Realty and C & C Associates (C & C) to comply with the terms of a settlement agreement. A stipulation of settlement required C & C to make periodic payments to Union City in return for its right to develop certain property. The property was subsequently sold to St. Michael's Development Corp. (St. Michael) which was also assigned C & C's rights and obligations under the settlement agreement. In denying the motion to enforce the settlement against C & C, the Law Division held that the City's public acknowledgment of the assignment and its acceptance of part performance by St. Michael created a novation discharging the original obligor. We disagree and reverse.
The facts are not in dispute. In 1986, Louis Fusco instituted a taxpayer's suit in which he sought to enjoin C & C from constructing residential units on property known as the monastery site. While the litigation was pending, C & C sold the property to Hugh De Fazio. The sale was contingent upon C & C's resolution of the Fusco suit. On October 31, 1986, a stipulation of settlement was entered between C & C, Fusco and the City. Under the stipulation, C & C agreed to construct two parks on land to be dedicated to the City. In addition, C & C was obliged to pay the City $75,000 in installments. The first $45,000 payment was to be made upon issuance of the requisite building permits. The remaining $30,000 was to be paid in yearly installments of $15,000.
On October 28, 1987, C & C and De Fazio executed a written contract for the sale of the property. Among other things, the contract contained an assignment of C & C's obligations under the settlement to construct the two parks and to pay the City $75,000 in accordance with the agreed upon schedule. St. Michael was then incorporated, with De Fazio as its principal, and was assigned the contract for the purchase of the monastery site, including assumption of C & C's duties under the stipulation of settlement.
*336 It is uncontradicted that the City was not present during the negotiations between C & C and De Fazio and knew nothing of the intended assignment. However, the City subsequently accepted the $45,000 installment from De Fazio. The occasion was memorialized by a "symbolic photograph" depicting an enlarged $45,000 check. In 1988, the City accepted a deed from St. Michael for a public park. When the City failed to receive the $15,000 installments, demands were made on De Fazio who assured the Mayor that St. Michael would satisfy its obligations.
On November 9, 1990, the City filed a motion to enforce litigant's rights against C & C. The matter apparently remained dormant until January 24, 1991, when a consent judgment was entered, requiring St. Michael to pay the remaining $30,000 in $10,000 installments. The judgment specifically recited that the City "reserved all rights ... to proceed against C & C" if its obligations under the stipulation of settlement were not satisfied.
After St. Michael went into bankruptcy, the City moved to enforce the settlement against C & C. In his letter opinion denying the motion, the Law Division judge found an implied novation by reason of the City's acceptance of partial performance by St. Michael and its reliance upon De Fazio for satisfaction of C & C's obligations. The judge concluded that the City's "overall conduct" disclosed "its acquiescence" in the assignment of C & C's duties and in the substitution of St. Michael for the original obligor.
We find no support in the record for the Law Division judge's conclusion that C & C was discharged from performing its obligations under the settlement agreement. A novation may be broadly defined as the substitution of a new contract or obligation for an old one which is thereby extinguished. 15 Williston On Contracts, § 1865 at 582-85 (3d ed. 1972). Our present discussion is confined to situations in which a new party is introduced. In that respect, a novation "is a substituted *337 contract that includes as a party one who was neither the obligor nor the obligee of the original duty." Restatement (Second) of Contracts, § 280 at 377 (1981). A novation "necessarily involves the immediate discharge of an old debt or duty, or part of it and the creation of a new one." 15 Williston On Contracts, § 1865 at 587. The extinguishment of the original duty is fundamental to a novation, because a subsequent breach gives no right of action against the initial obligor. See Restatement (Second) of Contracts, Comments to § 280 at 378. In contrast, an assignment does not discharge the original debtor, but merely transfers the duty to the assignee as an additional obligor. 15 Williston On Contracts, § 1867A, at 604.
Because of the far reaching effect of a novation, it is necessary that there be a mutual agreement among the parties to the old and new obligations whereby the new agreement is substituted for the prior one. Adams v. Jersey Central Power & Light Co., 21 N.J. 8, 15, 120 A.2d 737 (1956). A party "cannot relieve himself of the obligations of a contract without the consent of the obligee." Riley v. New Rapids Carpet Center, 61 N.J. 218, 224, 294 A.2d 7 (1972). There must be a "clear and definite intention on the part of all concerned" that it is the purpose of the agreement to substitute a new debtor for the old one. Tolland v. Lista, 46 N.J. Super. 272, 277, 134 A.2d 601 (App.Div. 1957). Although a novation need not be express, but may be implied, Emerson N.Y.-N.J., Inc. v. Brookwood T.V., 122 N.J. Super. 288, 294, 300 A.2d 187 (Law Div. 1973), the burden of proof rests on the defendant to show the intention by the obligee to discharge the original debtor. Mayfair Farms, etc. v. Kruvant Enterprises Co., 64 N.J. Super. 465, 475, 166 A.2d 585 (App.Div. 1960), judgment vacated, 35 N.J. 558, 173 A.2d 905 (1961).
Applying these principles, we are satisfied that St. Michael's assumption of C & C's debt and the publicity apparently given to this event did not establish an implied novation. "Where a party merely performs for the benefit of the debtor, *338 and the creditor accepts performance from him, there is not necessarily a substitution of parties...." Tolland v. Lista, 46 N.J. Super. at 277, 134 A.2d 601. Generally, an agreement to novate is not to be implied from the mere assumption of the liability of a debtor by a third person. See City Nat. Bank of Huron, S.D. v. Fuller, 52 F.2d 870, 874-75 (8th Cir.1931); Hargadine-McKittrick Dry Goods Co. v. Goodman, 55 Fla. 361, 368-69, 45 So. 995, 997 (1908); Harrington-Wiard Co. v. Blomstrom Mfg. Co., 166 Mich. 276, 287, 131 N.W. 559, 563 (1911); Schloss Bros. & Co. v. Bennett, 260 N.Y. 243, 248-49, 183 N.E. 376, 378 (1932). The consent of the creditor to the substitution and the intent to discharge the original obligor will not be implied from the new debtor's partial performance of the contract. In sum, the mere payment of the debt by a third person does not constitute a novation in the absence of a clear understanding that the obligation of the original debtor is extinguished.
In a similar vein, the City's conduct in agreeing to the entry of the consent judgment against St. Michael did not establish a novation. The City could legitimately seek enforcement of its rights against both C & C, the assignor, and St. Michael, the assignee. Cf. Broadway Maintenance Corp. v. Rutgers, 90 N.J. 253, 259, 447 A.2d 906 (1982). In that respect, we deem it significant that the City expressly reserved its right to enforce the terms of the stipulation against C & C. Clearly, the judgment does not evidence an intent to extinguish the City's right to pursue C & C in the event of a default by St. Michael.
Succinctly stated, the City's acquiescence in the assignment did not discharge C & C from its obligations under the stipulation of dismissal. Accordingly, the order of the Law Division is reversed and the matter is remanded for entry of a judgment in favor of Union City and against C & C Realty and C & C Associates for $30,000. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261758/ | 131 Cal.Rptr.2d 834 (2003)
107 Cal.App.4th 188
The PEOPLE, Plaintiff and Respondent,
v.
Glen Everrette MAGEE, Defendant and Appellant.
No. F039784.
Court of Appeal, Fifth District.
March 20, 2003.
Review Denied June 11, 2003.[*]
Certiorari Denied November 10, 2003.
*835 Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
Certiorari Denied November 10, 2003. See 124 S.Ct. 536.
OPINION
CORNELL, J.
Glen Everrette Magee was convicted of being an accessory to the robbery of Douglas N. (Pen.Code § 32.)[1] The issue presented is whether the jury was properly instructed and, if not, the appropriate standard of review.
The jury was instructed that the People were required to prove that a felony occurred, in this case a robbery. However, the trial court, with the agreement of both trial counsel, did not instruct the jury with the elements of robbery, thus leaving the jury with no means of determining whether the People proved all of the statutory elements of a robbery.
We conclude that this failure violated Magee's right to have the jury find beyond a reasonable doubt every element of the crime as required by the due process clause of the Constitution. (In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368.) Our conclusion is contrary to the decision issued by the Fourth District in People v. Shields (1990) 222 Cal. App.3d 1, 271 Cal.Rptr. 228.
*836 We also conclude that this error is subject to the harmless error analysis of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and, in this case, the error was harmless beyond a reasonable doubt.
FACTUAL AND PROCEDURAL SUMMARY
The facts of this case are undisputed. Douglas N. was riding his bicycle with a friend, Jerrardo M., when they were passed by a pickup. Magee was driving the pickup and Christopher A. and Angel R. were the passengers. The pickup turned in front of Douglas and Jerrardo and disappeared from sight. A short while later, Christopher A. and Angel R. were walking down the street. As Douglas N. rode by, Christopher A. knocked him off his bicycle and took his cellular phone. Christopher A. and Angel R. jogged away and were spotted leaving the area in the pickup with Magee.
Magee did not dispute any of the above facts but argued that he had no knowledge that a robbery had occurred and, therefore, could not be an accessory to the crime. The jury disagreed. Magee was sentenced to five years' probation.
DISCUSSION
As stated above, the only issue relates to jury instructions. The jury was instructed with CALJIC No. 6.40, which provides, inter alia, that the elements of the offense of being an accessory after the fact include the requirement that the People prove that a felony, in this case robbery, was committed.[2] The People originally requested that the trial court instruct the jury with CALJIC No. 9.40, which defines the elements of a robbery, but later withdrew that request with the consent of Magee's counsel.
Magee contends that it was error not to instruct the jury on the elements of robbery since it was left without the ability to determine if a felony occurred, an essential element to a section 32 violation. Furthermore, he contends the failure to instruct on each element of the crime is a structural error in the trial, which requires reversal without any need to determine if the error was prejudicial.
The People assert it is unnecessary to instruct on the elements of the underlying felony when it is undisputed the crime occurred, citing People v. Shields, supra, 222 Cal.App.3d at p. 1, 271 Cal.Rptr. 228. Magee acknowledges Shields, but claims it was wrongly decided.
In Shields, the defendant was charged with being an accessory to the beating death of her child. The jury was instructed with CALJIC No. 6.40, but the trial court failed to instruct the jury with the elements of the underlying offense, murder. The appellate court analogized the situation to the failure to define great bodily injury in a section 245 prosecution.
*837 "We find the analogy persuasive here. All that was needed was proof that a felony had been committed. While that felony was defined in the instruction as murder, the jury was not required to find a technical first degree murder in order to convict defendant of being an accessory to a felony. The uncontradicted evidence was that [the baby] died of 'multiple injuries by assailant(s).' There was no doubt that a felony, probably murder, had been committed, and defendant did not contend otherwise. There is no suggestion in the record that the jury was confused on this issue nor does defendant argue that the jury was actually misled. While defendant could have properly requested further instructions on this issue, we find that the trial court had no duty to give such instructions sua sponte." (People v. Shields, supra, 222 Cal.App.3d at p. 5, 271 Cal.Rptr. 228.)
As we shall explain, while we agree that Shields reached the correct result, we find its reasoning flawed.
The Fifth and Sixth Amendments to the United States Constitution require that every criminal conviction rest upon a jury determination that the defendant is guilty beyond a reasonable doubt of every element of the charged crime. (United States v. Gaudin (1995) 515 U.S. 506, 509-510, 115 S.Ct. 2310, 132 L.Ed.2d 444.)
Section 32 provides that an accessory to a felony is one who harbors, conceals, or aids a principal to a felony when the defendant knows that a felony has been committed and intends by his actions to enable a principal to the felony to avoid or escape arrest.[3] CALJIC No. 6.40 correctly instructs a jury that the elements of a violation of section 32 include that a felony occurred and requires that the felony be identified.
Clearly, the commission of a felony is an element of a violation of section 32. Therefore, the Fifth and Sixth Amendments require that before a defendant may be convicted, the jury must find beyond a reasonable doubt that a felony occurred. In the absence of a stipulation, this requirement necessitates instructing the jury with the elements of the underlying felony. Without such instruction, a jury will not be equipped with the necessary information to find that a felony occurred. It will not know the facts the prosecution must prove to establish the underlying felony, i.e., the jury will be left to guess or speculate whether a felony occurred.
A trial court has a sua sponte duty to instruct on the principles of law that are relevant to and govern the case, including instruction on all of the elements of the offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311, 18 Cal.Rptr.2d 796, 850 P.2d 1.) Since the commission of the underlying felony is an element of the crime, we disagree with the holding in Shields that the trial court does not have a duty to instruct on the elements of that crime. The prosecution was obligated to prove every element of the crime, even if the defense did not challenge one element. (Estelle v. McGuire (1991) 502 U.S. 62, 69-70, 112 S.Ct. 475, 116 L.Ed.2d 385.) Even in the absence of a request, in a section 32 prosecution, the jury must be instructed on the elements of the underlying offense unless the defendant stipulates to the occurrence of the underlying felony. The failure to do so in this case was error.
*838 Magee urges us to adopt a rule requiring reversal without an analysis of whether the error was prejudicial. The United States Supreme Court has classified constitutional errors into two groups; structural errors, which are subject to automatic reversal, and trial errors, subject to a harmless error analysis. (See, e.g., Neder v. United States (1999) 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35, and Arizona v. Fulminante (1991) 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302, opn. of Rehnquist, C. J., for the court as to Part II.)
Structural errors comprise a very limited class of cases and occur where there is a defect affecting the framework within which the trial proceeds rather than simply an error in the trial process itself. (Neder v. United States, supra, 527 U.S. at pp. 8-9, 119 S.Ct. 1827.) Structural errors have been found where there was a complete denial of counsel (Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799), where the trial judge was biased (Tumey v. Ohio (1927) 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749), where there was racial discrimination in the selection of the grand jury (Vasquez v. Hillery (1986) 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598), where there was a denial of self-representation (McKaskle v. Wiggins (1984) 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122), where there was a denial of a public trial (Waller v. Georgia (1984) 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31), and where the reasonable doubt instruction was defective (Sullivan v. Louisiana (1993) 508 U.S. 275, 113 S.Ct. 2078,124 L.Ed.2d 182).
Most constitutional errors are subject to harmless error analysis because they do not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. (Neder v. United States, supra, 527 U.S. at pp. 8-9, 119 S.Ct. 1827.) Harmless error analysis has been utilized by the Supreme Court where improper instructions have been given on an element of an offense (Yates v. Evatt (1991) 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 [mandatory rebuttable presumption], overruled on other grounds in Estelle v. McGuire, supra, 502 U.S. at p. 72, fn. 4, 112 S.Ct. 475; Carella v. California (1989) 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 [mandatory conclusive presumption]; Pope v. Illinois (1987) 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 [misstatement of element]; Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 [mandatory rebuttable presumption], overruled on other grounds in Brecht v. Abrahamson (1993) 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353) and where elements of an offense have been omitted. (Johnson v. United States (1997) 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718; California v. Roy (1996) 519 U.S. 2, 117 S.Ct. 337, 136 L.Ed.2d 266.) Neder involved a failure to instruct the jury on an element of the offense, specifically the requirement that a misstatement on a tax form in a tax fraud case must be material. The Supreme Court concluded that the error was subject to harmless error analysis. (Neder v. United States, supra, 527 U.S. at pp. 7-8, 119 S.Ct. 1827.)
This authority compels our conclusion that the error in this case, failure to instruct the jury on an element of the offense, is subject to harmless error analysis under Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, i.e., whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict. (Neder v. United States, supra, 527 U.S. at p. 15, 119 S.Ct. 1827.)
Magee acknowledges that failure to instruct on only one element of an offense is subject to harmless error analysis but contends that, because automatic reversal *839 would be required if the trial court failed to instruct on every element of an offense (Arizona v. Fulminante, supra, 499 U.S. at p. 294, 111 S.Ct. 1246), automatic reversal is required where the trial court failed to instruct on most of the elements of the offense. Magee asserts that since there are five elements to a robbery, the trial court failed to instruct on five of the seven elements of the charged crime of being an accessory to a robbery.
To support his theory, Magee cites People v. Cummings, supra, 4 Cal.4th 1233, 18 Cal.Rptr.2d 796, 850 P.2d 1. Cummings and codefendant Gay were convicted of killing a police officer and sentenced to death. The shooting was motivated by the defendants' desire to avoid capture for a series of robberies. Gay also was convicted of 11 counts of robbery, one count of attempted robbery, and one count of conspiracy to commit robbery. Despite these 13 counts related to robbery, the trial judge failed to instruct the jury on the necessary elements of a robbery. As a result of this failure, the Supreme Court reversed the conviction on each count of robbery, concluding that United States Supreme Court precedent required the result. (Id. at p. 1315, 18 Cal.Rptr.2d 796, 850 P.2d 1.)
If Magee were convicted of robbery, Cummings would require reversal. However, Magee was convicted of being an accessory to the robbery. We are required to consider what effect the constitutional error had upon the guilty verdict in the case at hand. (Sullivan v. Louisiana, supra, 508 U.S. at p. 279, 113 S.Ct. 2078.) We reject the assertion that a mathematical computation should be used to determine when reversal is required.
In the above quoted portion of Shields, the court of appeal used reasoning very similar to a harmless error analysis. In our view, Shields reached the correct result because, like here, the underlying felony was not in dispute and the error was harmless.
Here, the testimony establishing a robbery was uncontradicted.[4] Christopher A. hit the victim, knocking him off his bike, and took from his person a cellular phone. Magee acknowledged the robbery was committed, but argued that he did not know that a robbery had occurred and thus could not be convicted as an accessory to the crime. Consistent with this strategy, Magee agreed that the trial court did not need to instruct the jury on the elements of a robbery.
Since no one disputed that the robbery occurred, and the only issue was Magee's knowledge of the perpetrator's actions, we conclude beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman v. California, supra, 386 U.S. at p. 24, 87 S.Ct. 824.) Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J, and LEVY, J.
NOTES
[*] Kennard, J., dissented.
[1] All statutory references are to the Penal Code unless otherwise stated.
[2] The instruction as read to the jury stated: "The defendant is accused in Count I of having committed the crime of being an accessory to a felony in violation of Section 32 of the Penal Code. [¶] Every person who, after a felony has been committed, harbors, conceals or aids a principal in that felony, with the specific intent that the principal may avoid or escape from the arrest, trial, conviction or punishment, having knowledge that the principal has committed that felony or has been charged with that felony or convicted thereof, is guilty of the crime of accessory to a felony in violation of Penal Code Section 32.[¶] In order to prove this crime, each of the following elements must be proved: Number one, a felony, namely, robbery, was committed; number two, defendant harbored, concealed or aided a principal in that felony with the specific intent that the principal avoid or escape arrest, trial, conviction or punishment; and number three, defendant did so with knowledge that the principal committed the felony."
[3] Section 32 states in full: "Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony."
[4] The elements of a robbery are (1) the victim had possession of property of some value, (2) the property was taken from the victim or his or her personal presence, (3) the property was taken against the will of the victim, (4) the taking was by either force or fear, and (5) the property was taken with the specific intent to permanently deprive the victim of the property. (CALJIC No. 9.40.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322824/ | 609 S.E.2d 722 (2005)
271 Ga.App. 388
HIGH
v.
The STATE.
No. A04A2053.
Court of Appeals of Georgia.
January 25, 2005.
*723 William Phillips, Macon, for Appellant.
Richard Milam, District Attorney, Mark Daniel, Jason Johnston, Assistant District Attorneys, for Appellee.
MIKELL, Judge.
Michael Leon High was convicted of armed robbery and sentenced to 15 years imprisonment. He appeals following the denial of his motion for new trial, challenging the admission of similar transaction evidence and of his statements against interest. We affirm.
1. Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial shows that High was involved in a string of three armed robberies that occurred on June 27, 2002, July 6, 2002, and July 10, 2002. In this case, High was tried for the first armed robbery, and the state filed a pre-trial notice of its intent to introduce evidence of the July robberies as similar transactions. High assigns two errors to the admission of this evidence.
(a) In his first enumerated error, High asserts that the trial court erred in permitting the state to establish the transactions by hearsay testimony during the pre-trial Uniform Superior Court Rule 31.3(B) hearing. However, the only objection raised by trial counsel during the hearing was to the prosecutor's request to state in his place as to what the similar transaction evidence would show. The prosecutor then presented the testimony of the lead investigators for each crime, and trial counsel raised no further objections. Pretermitting whether High waived any objection to the admissibility of the transactions, there was no error.
A hearing in which the [s]tate relies upon the statements of the prosecuting attorney to make the required showing for the admissibility of similar transaction evidence is sufficient to satisfy the requirements of USCR 31.3(B). Some cases differentiate a hearing in which the prosecutor simply states the evidence in her place from an evidentiary hearing. USCR 31.3 clearly grants the trial court the discretion as to the reception of evidence. There is no per se right to an evidentiary hearing, only to *724 a hearing, nor any mandatory obligation to produce testimonial evidence.[1]
Therefore, the prosecutor's statement in his place would have been sufficient. As High received the benefit of an evidentiary hearing, he has no cause to complain on appeal.
(b) In his second enumerated error, High asserts that the trial court erred in charging the jury that the similar transaction evidence was admissible for the purpose of showing bent of mind and course of conduct, although the court had originally ruled that the purpose of the evidence was to show motive, intent and identification. The state contends that High waived any objection to the charge, and we agree. In response to the court's inquiry, trial counsel stated that he had no objections to the charge, and he did not reserve objections. "The right to raise an erroneous charge on appeal may be lost only in certain well-defined instances, as where defense counsel in response to an inquiry by the trial judge plainly states that he has no objections to the charge as given."[2] Moreover, even if counsel had preserved the objection, we would not have found merit in his argument. "Where the purposes set forth in the court's charge are legitimate, the fact that they vary somewhat from the purposes mentioned in the USCR 31.3(B) hearing does not necessarily render the charge erroneous."[3] Showing the defendant's bent of mind and course of conduct are legitimate purposes for the admission of similar transaction evidence, where, as here, those matters are in issue.[4] Thus, the court's charge was proper.
2. Finally, High argues that the trial court erred in ruling his statements admissible following the Jackson-Denno hearing because they were induced by hope of benefit. In this regard, OCGA § 24-3-50 provides: "To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury."
Pretermitting whether, as the state argues, trial counsel waived the right to assert error by failing to object to the admission of High's taped statement at trial, we find no error in the court's ruling.
The standard for determining whether or not a confession was voluntary is the preponderance of the evidence standard. The trial court's decision on this point will not be disturbed on appeal unless there is obvious error. To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury. The Supreme Court of Georgia has construed "slightest hope of benefit" to mean the hope of a lighter sentence.[5]
In this case, the investigator who taped High's statement, John Fields, testified that he never promised High anything in exchange for his statement. According to Fields, he only said that he would let the judge hear it and that he would speak with the district attorney. Fields testified that he told High that if he cooperated and showed that he was trying to get his life together, it might help him. "Merely telling a defendant that his or her cooperation will be made known to the prosecution does not constitute the `hope of benefit' sufficient to render a statement inadmissible under OCGA § 24-3-50."[6] We have also held that telling a suspect that "judges love to hear that defendants helped the police" was not a "hope of benefit."[7] It follows that the trial court did *725 not err in determining that High's statement was voluntarily made.
Judgment affirmed.
BLACKBURN, P.J., and BARNES, J., concur.
NOTES
[1] (Citation and punctuation omitted; emphasis in original.) Talmadge v. State, 236 Ga.App. 454, 457-458(1)(e), 512 S.E.2d 329 (1999).
[2] (Citation omitted.) Colkitt v. State, 251 Ga.App. 749, 752(2), 555 S.E.2d 121 (2001).
[3] (Citations omitted.) Jordan v. State, 230 Ga.App. 560, 561, 497 S.E.2d 48 (1998).
[4] Willett v. State, 223 Ga.App. 866, 872(3), 479 S.E.2d 132 (1996).
[5] (Punctuation and footnotes omitted.) Griffin v. State, 257 Ga.App. 167, 167-168, 570 S.E.2d 611 (2002).
[6] (Citations and punctuation omitted.) Leigh v. State, 223 Ga.App. 726, 727(1), 478 S.E.2d 905 (1996).
[7] Stephens v. State, 164 Ga.App. 398, 399(3), 297 S.E.2d 90 (1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322815/ | 104 Ga. App. 264 (1961)
121 S.E.2d 331
WOLFE
v.
CITY OF ALBANY.
38906.
Court of Appeals of Georgia.
Decided July 14, 1961.
Rehearing Denied July 28, 1961.
*266 Adair, Goldthwaite & Stanford, J. R. Goldthwaite, Jr., for plaintiff in error.
H. Grady Rawls, contra.
TOWNSEND, Presiding Judge.
1. The attacks launched against the ordinance in question on the grounds that it violated the First and Fourteenth amendments to the Constitution of the United States, the provisions of the National Labor Relations Act (29 U. S.C.A. § 151 et seq.) and of the Labor Management Reporting and Disclosure Act (29 U. S.C.A. § 504) need not be considered here for the reason that these grounds are restricted to the effect of the ordinance upon the rights of the defendant as a labor organizer only, and the present decision is not confined within that narrow category. Insofar, however, as the Federal statutes are concerned, the attacks are without merit for the reason that the defendant failed to show by competent proof that his solicitation of employees of A. & M. Karagheusian, Inc. was a matter involving interstate commerce. The only evidence that this employer, whose employees alone were solicited to become members of the Textile Workers Union of America, was engaged in interstate commerce was made by reference to a prior decision of the National Labor Relations Board dated August 14, 1959, containing a finding of fact from undisclosed testimony taken at a hearing of May 5, 1959, that such employer was engaged in interstate commerce. Not only is the finding of fact of that body not binding upon a judicial tribunal hearing a totally different case, but the decision of the NLRB relates to facts almost a year prior to the alleged offense here and, even if it could be otherwise considered, would have no probative value as of the *267 time of this infraction. Congress has no power to intrude in the field of purely intrastate commerce. Foster Brothers Mfg. Co. v. National Labor Relations Board, 85 F.2d 984. Whether or not the activities of the employer are such that the impact of the labor controversy would affect interstate commerce is a fact to be determined in each case as it arises. Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453 (58 SC 656, 82 LE 954); Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197 (59 SC 206, 83 LE 126); National Labor Relations Board v. Mid-Co Gasoline Co., 172 F.2d 974; National Labor Relations Board v. Vulcan Forging Co., 188 F.2d 927. Accordingly, the first 9 grounds of attack in the plea in abatement are either without merit or are not passed upon.
2. Paragraph 11 specifically attacks Section 1 of the ordinance on the ground that it violates Article I, Sec. I, Par. XV of the Constitution of Georgia (Code § 2-115) guaranteeing the right of freedom of speech because the criminal sanction has no valid relationship to the protection of the public safety or welfare of the citizens of the municipality nor is there any other legally cognizable ground for restricting the privileges and immunities granted in the amendment. Paragraph 10 attacks conditions (a) and (b) of Section 2 of the ordinance on the same grounds. There is no specific attack on condition (c) requiring the payment of a license fee, and it will therefore be assumed that plaintiff in error impliedly admits that a regulatory or taxing measure, applied to a person whose occupation was that of a paid union organizer, may be upheld, if it does not in the Federal field infringe upon the limitations laid down in Hill v. Florida, 325 U.S. 538 (65 SC 1373, 89 LE 1782). In Stapleton v. Mitchell, 60 F. Supp. 51, 61, although a Kansas statute requiring payment of a $1.00 fee was struck down, it was nevertheless recognized that "when used as an economic weapon in the field of industrial relations or as coercive technique, speech, press and assembly are subject to reasonable regulation in the public interest and in that respect the state is the primary judge of the need, and it is not required to wait until the danger to the community which it seeks to avoid is `clear and present.'" This reference *268 to the holding in Thomas v. Collins, 323 U.S. 516 (65 SC 315, 89 LE 430) points up the delicacy of any decision as to the right to exact a license fee as applied to labor organizers, where the right to free speech under the Constitutional guarantee is interposed against the right of a state or local government either to raise revenue or to promote public safety and good order within its boundaries, attempted to be carried out by taxing and licensing business occupations. That question, also, is not presented here because nothing in the ordinance under consideration reveals it to be either a revenue measure or one designed to regulate business occupations. It does not limit the class of persons to which it applies to those engaged in any trade or business; it does not restrict its application to paid solicitors of memberships nor to any particular type of organization and under its broad language any member of any social or fraternal organization who "shall solicit memberships in any club . . . where there is any charge for membership" would be equally guilty. See Thomas v. City of Atlanta, 59 Ga. App. 520 (1 SE2d 598). However, "it is as much the duty of this court to refrain from passing upon issues not embraced within the errors assigned as it is to decide those that are. That which lies beyond the exceptions is forbidden ground." Clark v. Bandy, 196 Ga. 546, 558 (27 SE2d 17). Because of the wording of the assignments of error neither the right to charge a license fee nor the question of the reasonableness of such fee will be specifically dealt with herein.
3. "The police power of the General Assembly is very broad, but must be exercised in subordination to the Constitution of this State." Commissioners of Glynn County v. Cate, 183 Ga. 111, 113 (1) (187 S.E. 636). "The police power is an attribute of sovereignty, and a necessary characteristic of every civilized government. It is inherent in the State of Georgia, and in municipal corporations where there have been express grants by the State through their charters. . . Therefore, unless a statute or ordinance passed by a duly-constituted legislative authority is violative of the limitations placed on the police power by the Constitution, or, as it is more commonly stated, is repugnant to the Constitution, it is not invalid." DeBerry v. City of LaGrange, *269 62 Ga. App. 74, 77 (8 SE2d 146). "Municipal ordinances must be reasonable. The limitations of the power of a city council in this regard are not to be measured by the more extensive powers of the State legislature." Mayor &c. of Savannah v. Cooper, 131 Ga. 670, 676 (63 S.E. 138). "Unless an act restricting the ordinary occupations of life can be said to bear some reasonable relation to one or more of these general objects of the police power [i.e., public health, safety, morality, and general welfare] it is repugnant to constitutional guaranties and void." Bramley v. State, 187 Ga. 826, 835 (2 SE2d 647).
The privileges granted by our Bill of Rights, the precious "jewels of liberty" to which we so frequently give lip service, are all too often ignored in the exigencies of particular factual situations, and it is for this reason among others that, perhaps at the risk of over-simplification, this court is deciding only one ground of the plaintiff in error's attack upon the validity of the ordinance in question in holding that the prior restraints placed upon this defendant or any other citizen within the City of Albany before he can lawfully invite other persons to join any club or association which charges dues (and indeed, what club or association does not?) constitute a denial of this Constitutional right to free speech. Free speech, like other basic liberties, can be defined less by words than by situations. It is to some extent relative. Free speech does not give one the right to malign another or do any act which is injurious to the person or property of another. Nor does it necessarily exempt one from regulation, license, or payment of tax which under some other theory of law is a protected public or private right. That which may be a permissible regulation even though it restricts the right of free speech to some extent must bear some genuine and reasonable relation to the general welfare, and to the public health, safety or morals. In other words, the right to free speech is a reasonable right limited only by conditions reasonably imposed for the benefit of society; the right exists except where the limitation clearly appears. It may be true that there are regulatory measures which a municipality may still lawfully impose upon the activities of paid solicitors for labor unions and which would be not only upheld as within the State Constitution but also as *270 within the purview of the Federal statutes. (See De Veau v. Braisted, 363 U.S. 144 (80 SC 1146, 4 LE2d 1109). As to such cases it was stated, In re Porterfield, 28 Cal. 2d 91 (168 P2d 706, 167 A.L.R. 675): "Were it not for the direct application by the Supreme Court of the constitutional speech and assembly guaranties to the facts of the Thomas case [Thomas v. Collins, supra] there would seem to be little basis for arguing that the solicitation by Porterfield for compensation was not a business act subject to police regulation. . . The foregoing considerations, plus the fact that in the instant case the only restriction upon speech (other than that involved in the standards prescribed for issuance of the license . . .) is that which is incidental as a part of the regulation of paid solicitation, suggest the conclusion that the constitutional principle of free speech does not render wholly immune from reasonable regulation the profession or business of solicitation [for a labor union] in which petitioner is engaged."
But that is not the issue upon which this case is decided. This ordinance denies to all citizens of the City of Albany the right to request their friends to join any dues-paying association unless they first obtain a license for that purpose, and the grant of the license is conditioned, not only upon payment of a fee, but on the furnishing of statements that the applicant is of good moral character, that he has never violated any law, and that he has never joined any organization having "Communistic" beliefs. It was held in Herndon v. Lowry, 301 U.S. 242, 258 (57 SC 732, 81 LE 1066): "The limitation upon individual liberty must have appropriate relation to the safety of the state. Legislation which goes beyond this need violates the principle of the Constitution. If, therefore, a state statute penalize innocent participation in a meeting held with an innocent purpose merely because the meeting was held under auspices of an organization membership in which, or the advocacy of whose principles, is also denounced as criminal, the law, so construed and applied, goes beyond the power to restrict abuses of freedom of speech and arbitrarily denies that freedom." The words are no less true of the free speech guarantee of our State Constitution than of the First Amendment to the Federal Constitution. In Haynes v. *271 City of Albany, 29 Ga. App. 313 (115 S.E. 30) an ordinance placing a residence prohibition against any former inmate of a red light district unless she produced evidence of visible means of support or good moral character was held "in its spirit, if not in its letter . . . retroactive and unconstitutional, for then the offense is bottomed upon past acts." There is no basis for arguing that the ordinance is regulatory as to the nature of the organization, for it is comprehensive of them all whether good or bad; nor is there any basis for arguing that it is for the protection of the public against fraudulent solicitation of memberships, since many a former law violator, and even some hard pressed to establish evidence of present good morality, might ask others to join a worthy cause.
There being no reasonable relationship between the restraints imposed on freedom of speech and the general welfare of the community, the ordinance is unconstitutional. It was error for the judge of the superior court to dismiss the petition for certiorari.
Judgment reversed. Frankum and Jordan, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322797/ | 202 Va. 906 (1961)
JAMES HAZEL BRITT
v.
COMMONWEALTH OF VIRGINIA.
Record No. 5289.
Supreme Court of Virginia.
September 8, 1961.
J. Kenneth Rader, for the plaintiff in error.
Present, All the Justices.
1. Britt was sentenced to two years in the penitentiary upon conviction of criminal seduction. On appeal he contended the court had in effect directed the grand jury to find a true bill when in its charge it stated that the Commonwealth's attorney sends to the grand jury only enough witnesses to show probable cause. This argument had no merit, for the statement was in no way a direction to the jury or an infringement upon their functions.
2. The evidence failed to show beyond a reasonable doubt that the prosecutrix had been seduced, as that term is used in Code 1950, section 18-48. She did not testify that she was in love with defendant or engaged to him. She admitted she objected to intercourse with him only because of the fear of pregnancy, and on each occasion consented after he promised to marry her if she became pregnant. This evidence showed a course of bargaining rather than that the dominating force which induced the prosecutrix to yield was defendant's promise to marry.
3. Nor was the alleged promise of marriage corroborated as required by Code 1950, section 18-52. Though corroborating evidence may be circumstantial and need only supply facts supporting the essential elements of the offense, the record in the instant case showed none of the usual circumstances tending to confirm the promise of marriage, such as admissions by defendant, token of engagement, or parents' belief that the parties are engaged.
Error to a judgment of the Circuit Court of Goochland county. Hon. C. Champion Bowles, judge presiding. The opinion states the case.
D. Gardiner Tyler, Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.
EGGLESTON
EGGLESTON, C.J., delivered the opinion of the court.
James Hazel Britt was convicted by a jury and his punishment fixed at two years in the State Penitentary on an indictment charging him with seducing under promise of marriage Thelma Dickerson, an unmarried female of previous chaste character. The lower court overruled a motion for a new trial and entered judgment on the verdict. We granted the defendant a writ of error.
Prior to his arraignment the defendant moved the court to quash the indictment on the ground that in its charge to the grand jury the court stated that "the Commonwealth's attorney does not send all of his witnesses to the grand jury because that is not necessary. He just sends enough to show probable cause." In support of his motion to quash the defendant contended that this statement was prejudicial to him "in that it directed that a true bill be found." The motion to quash was overruled, the defendant excepted, and that ruling of the lower court is the subject of the first assignment of error.
There is no merit in this assignment. The statement complained of is obviously an extract from the charge made pursuant to Code, | 19-129. [1] It is merely a general statement relating to the procedure to be followed in all cases which may be presented to the grand jury. There is no suggestion in the language used that the grand jury should find a true bill in this or in any other case which may be presented to them. It in no way infringed upon the function of the grand jury whose duty it is to examine into accusations made against persons charged with crime and determine whether it is proper that they be brought to trial.
In Cutchin City of Roanoke, 113 Va. 452, 478, 74 S.E. 403, we said that it is the duty of the grand jury, among other things, "To examine into accusations against persons charged with crime, and, if they see just cause, to find bills of indictment against them". Hence, the language used by the lower court in the present case, that the Commonwealth's attorney sends to the grand jury only a sufficient number of witnesses "to show probable cause" for finding a true bill was not improper or prejudicial to the defendant.
The main assignments of error challenge the sufficiency of the *908 evidence to support the verdict. Specifically, the contentions are that the evidence does not warrant the finding that the prosecutrix was seduced and yielded to the defendant "under promise of marriage, conditional or unconditional," as required by Code, | 18-48, [2] and does not warrant the finding that the testimony of the prosecutrix was corroborated, as required by | 18-52. [3]
-- No conviction under || 18-48 and 18-50 shall be had on the testimony of the female seduced, abducted, or detained, unsupported by other evidence, nor unless the indictment shall be found within two years after the commission of the offense." (Recodified by Acts of 1960, ch. 358, p. 422, as | 18.1-42.)"
The evidence on behalf of the Commonwealth consists of the testimony of the prosecutrix, Thelma Dickerson, and that of her mother and father, in narrative form. No evidence was introduced on behalf of the defendant.
According to the prosecutrix, at the time of the alleged offense which she fixed at "March, 1959," she and the defendant were seventeen and nineteen years of age, respectively. She had completed the tenth grade in a public school and had become a trained beautician. She had known the defendant for about three years and they had been "dating" since July, 1957, or 1958. Together they had attended church, the movies and dances during that time, but the defendant had taken no meals at her home. During the three years they had gone together he had given her a "make-up set" on her birthday in February, 1958, or 1959, "she was uncertain which," a necklace at Christmas, 1958, a sweater at Christmas, 1959, and a "box lunch" on Memorial Day, 1960. She was unable to "approximate" the value of any of these gifts. He had not, she said, given her an engagement ring.
The prosecutrix testified that her first act of sexual intercourse with the defendant occurred at about 12:25 a.m., on a date in March, 1959, which she "could not remember," in the defendant's car on the "leadin" road to Deep Run Hunt Club. According to the narrative, "Thelma testified on direct examination that the defendant asked her to have sexual intercourse with him after they had been parked about *909 twenty or twenty-five minutes, during which period he had been hugging and kissing her and having his hands on her; that she refused, saying that she was afraid she would become pregnant; that the defendant said if that happened he would marry her; that she then went ahead and had sexual intercourse with him; that they had had sexual intercourse on several subsequent occasions; and, that on each such occasion she would say that she was afraid she would become pregnant after which the defendant promised to marry her if she became pregnant and then she would have sexual intercourse with him."
She further testified that she had never been married, and that prior to her experience with the defendant she had not had sexual intercourse. She was pregnant at the time of the trial. The defendant, she said, who had been coming to see her "twice on weekends and once during the week for two years," ceased his visits in June, 1960.
On cross-examination the prosecutrix testified that on the occasion of their first intercourse, when the defendant "passed her home and drove his automobile into the Deep Run Hunt Club property she thought that he did so because he intended to have sexual intercourse with her; that she did not protest his actions; that the only question in her mind was the possibility of becoming pregnant; and that sexual intercourse was all right with her except for the possibility of pregnancy."
Pearl Dickerson, the mother of the prosecutrix, testified that Thelma and the defendant "had been going together for about three years as any boy would go to see a girl;" that "he came quite often and never missed over two weeks at a time;" that they had gone together to the movies and to church; that he had given her a sweater, a vanity set, a necklace, and a "box lunch;" that she "did not know whether they were planning to get married," but that "they acted like boys and girls who are in love." She further testified that during the time that Thelma and the defendant were going together other boys came to see her and that the defendant "did not prevent" their doing so.
Clarence Dickerson, the father of the prosecutrix, testified that the defendant and Thelma had been going together for two or three years; that "sometimes they went out alone and sometimes with another couple;" and that he did not know where they had gone and did not ask them. He further said that he "thought they were in love."
In order to constitute the crime of seduction under Code, | 18-48, *910 there must be (1) a promise of marriage, conditional or unconditional; (2) seduction of an unmarried female; (3) illicit connection with such female; and (4) the female must be of previous chaste character. Judd Commonwealth,
146 Va. 267, 272, 273, 135 S.E. 710; Evans Commonwealth, 183 Va. 775, 778, 33 S.E.2d 636, 637. While under the terms of the statute the chastity of the female is presumed, in the absence of evidence to the contrary, the burden is on the Commonwealth to prove beyond a reasonable doubt the other constituent elements of the offense.
In the present case the undisputed testimony of the prosecutrix establishes the conditional promise of the defendant to marry her if she became pregnant. The illicit connection is likewise established by her undisputed testimony. But the serious question presented is whether the evidence establishes beyond a reasonable doubt the seduction of the prosecutrix within the meaning and intent of the statute.
In Hillman Commonwealth, 155 Va. 1004, 1007, 154 S.E. 475, we said: "An essential element of seduction is the consent of the female to the act of intercourse, and she must have consented, or yielded, by reason of the promise" of marriage. Again, in Spangler Commonwealth, 188 Va. 436, 440, 441, 50 S.E.2d 265, 267, we said that where, as here, the specific charge is seduction under a promise of marriage, "the dominating force which influences the female to yield her person must be the promise to marry her."
Hence, in the present case the question is, Does the evidence on behalf of the Commonwealth, which comes entirely from the prosecutrix, show beyond a reasonable doubt that the dominating force which induced her to yield to the defendant was his promise to marry her? In our opinion, the testimony of the prosecutrix does not measure up to this requirement. In the first place, it is significant as to what the prosecutrix did not say. She did not testify that she and the defendant were enamored of each other, that they were engaged, or had planned to be married in any event. She did not say that on the occasion of her first downfall she was in love with him and was overcome by his advances. It is true that she said that she yielded on this and each subsequent occasion only after he had promised to marry her if she became pregnant. But it is clear from her further testimony that the dominating influence with her was not the defendant's promise to marry her, but the avoidance of the consequences of pregnancy which might or might not follow from their misconduct.
The prosecutrix admitted that she "thought" on the occasion of her *911 first downfall that when the defendant passed her home and drove into the Hunt Club lane he intended to have intercourse with her. And yet she "did not protest his actions." She further admitted that "sexual intercourse was all right with her except for the possibility of pregnancy," and that such "possibility" was "the only question in her mind." (Emphasis added.) In this situation, she bargained with the defendant, and merely to guard against a possible pregnancy, extracted from him the conditional promise to marry her. On each subsequent occasion she bargained with him in a similar fashion. This does not constitute a seduction within the meaning and intent of the statute. See Spangler Commonwealth, supra, 188 Va., at pages 440, 441, 442, 50 S.E.2d, at pages 267, 268; Bottoms Commonwealth, 168 Va. 714, 191 S.E. 682.
Nor do we find that the alleged promise of marriage is corroborated, as required by Code, | 18-52, supra. We have several times pointed out that under the statute there cannot be a conviction on the unsupported evidence of the female seduced, but there must be other evidence not emanating from her mouth which adds to, strengthens, confirms, or corroborates her. Such evidence need not be direct but may be circumstantial or partly direct and partly circumstantial. If circumstantial, it need only supply such facts or circumstances as tend to support such testimony of the prosecutrix upon the essential elements of the offense. And when there is other testimony fairly tending to support the prosecutrix, it is for the jury to say whether she is corroborated. Fuller Commonwealth, 190 Va. 19, 26, 27, 55 S.E.2d 430, 434, and cases there cited. We adhere to these principles.
However, in the present case, the record is devoid of the usual circumstances which tend to support the promise of marriage. There are no subsequent admissions or declarations of the defendant as to such promise. Nor are there such other circumstances which usually accompany the existence of an engagement of marriage. Neither the defendant nor the prosecutrix had expressed to her parents their intent to marry, and the mother admitted that she did not know of any such intent or plans. The defendant was not treated in the home as the daughter's fiance. On the contrary, the mother regarded his visits "as any boy would go to see a girl." There was no gift of a ring or other token of their engagement. There were but four gifts of undetermined value, scattered over a period of about three years. Two of these were before the time of the alleged offense and two subsequent thereto. While the parents of the prosecutrix said that *912 the young couple appeared to be in love, the defendant did not object to her going with other boys and she frequently did so.
In Riddleberger Commonwealth, 124 Va. 783, 786, 97 S.E. 310, we held that the corroborating evidence is insufficient to support a conviction when it "is as consistent with the conclusion that there was no promise of marriage as with the conclusion that there was such a promise." Such is the case here.
For these reasons we find the evidence insufficient to sustain the verdict. Consequently, the judgment is reversed, the verdict set aside, and the case remanded to the lower court for a new trial if the Commonwealth be so advised.
Reversed and remanded.
NOTES
[1] By Acts of 1960, ch. 366, p. 525, this section was recodified as | 19.1-154.
[2] "| 18-48. Seduction of female of previous chaste character. -- If any person, under promise of marriage, conditional or unconditional, seduce and have illicit connection with any unmarried female of previous chaste character, or if any married man seduce and have illicit connection with any unmarried female of previous chaste character, he shall be guilty of a felony, and, upon conviction thereof, shall be punished by confinement in the penitentiary not less than two, nor more than ten years. For the purposes of this section, the chastity of the female shall be presumed, in the absence of evidence to the contrary.' (Recodified by Acts of 1960, ch. 358, p. 422, as | 18.1-41.)
[3] "| 18-52. Evidence necessary to convict; limitation of prosecution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322813/ | 202 Va. 892 (1961)
JOHN SCOTT CARTER, ET AL., ETC.
v.
WILLIS SCOTT CARTER, INDIVIDUALLY AND AS ADMINISTRATRIX, ETC.
Record No. 5277.
Supreme Court of Virginia.
September 8, 1961.
Robert L. Marshall, for the appellants.
Present, All the Justices.
John S. Carter, a plant manager for American Cyanamid Company, was killed in an airplane crash in 1959. At the time of his death he was insured under two policies carried by his employer. The first was a group policy first effected in 1949, at which time he named his wife as his beneficiary. But after the birth of his two sons he named them (and his mother in a small amount) in the wife's place. The second policy was effected in 1950, covering accident, and stated that the beneficiary would be the same as that under the group policy. This was reiterated in a company memorandum found in deceased's files, dated 1955. At this time deceased's coverage was $40,000. It was not proved he knew of any subsequent increase, though coverage at time of death was in fact $126,000. In interpleader action brought by the insurance carrier the widow argued that her husband could not conceivably have intended to exclude her from the benefits of the accident policy and urged reformation of the beneficiary clause on the ground deceased was unaware of the amount of coverage. The trial court held the designation of beneficiary effective as to $40,000 only, directing the payment of the remaining $85,000 odd to the widow in her capacity as executrix. On appeal, however, the designation was held effective as to the entire sum. The contract provisions were clear, requiring no construction; and there was no evidence that deceased, who was a responsible business man and experienced in insurance matters, misunderstood them or did not know what he was doing. Whether he knew of the increased coverage or not was immaterial.
Appeal from a decree of the Circuit Court of Nelson county. Hon. C. G. Quesenberry, judge presiding. The opinion states the case.
Samuel H. Williams (Williams, Robertson & Sackett, on brief), for the appellee.
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
Indemnity Insurance Company of North America, hereinafter referred to as the insurer, initiated this proceeding by filing a bill of interpleader praying the lower court to determine to whom and in what proportion the proceeds of an accident insurance policy issued by it covering John S. Carter, in the event of his accidental death, should be paid. It alleged that Carter died in the crash of an airplane on October 30, 1959; that he left surviving him Willis Scott Carter, his widow, who qualified as administratrix of his estate, Aurelia I. Carter, his mother, and John Scott Carter and Francis C. Carter, respectively 17 and 7 years of age, his only children. Each of the above named survivors was made a party defendant to the bill, the widow in her own right and as administratrix of the estate of her late husband. A guardian ad litem was appointed for the infants, answers were filed on behalf of each of the defendants, and the cause duly matured.
The facts, set out in the pleadings, in the depositions of witnesses, and by the exhibits, are not in dispute.
John S. Carter was the manager of the plant of American Cyanamid Company at Piney River, Virginia, where he had been employed by that company since 1938. At the time of his death, he was returning in an airplane to his home in Virginia from New York City, where he had gone on business for his company.
In 1949, American Cyanamid Company, sometimes hereinafter referred to as the employer, inaugurated a system of employee insurance, and purchased from the Prudential Insurance Company of America a policy of Group Insurance providing death, hospital and other benefits. On February 1, 1949, there was issued to John S. Carter a certificate of coverage under this policy, with death benefits amounting to $14,000.00, payable to his wife as beneficiary. On January 1, 1950, November 1, 1951, and September 1, 1953, certificates were issued to Carter showing an increase of benefits upon each of the said dates. On January 1, 1957, he was furnished a certificate showing that the amount payable as death benefits had increased to $26,000.00.
Under the terms of that policy, decedent had the right, without the consent of the beneficiary, to change the beneficiary by giving a written notice to his employer on a form provided by the insurer. Accordingly, on January 12, 1951, at the request of decedent, a rider was issued by the insurer containing the provision that, upon the *894 death of the insured, the sum of $2,000.00 should be paid to his mother, Aurelia I. Carter, and the remaining portion to his son, John Scott Carter.
On June 4, 1954, after the birth of his second son, decedent made a further change in his beneficiaries by making the following designation:
"(a) $2,000, or the proceeds if less, to Aurelia I. Carter, Beneficiary, mother of the Insured, if living, otherwise to such of John S. Carter and Francis C. Carter, sons of the Insured, as may be living, Beneficiaries, in equal shares or to the survivor of them, if any, otherwise to the executors or administrators of the Insured; and"
"(b) The remaining portion, if any, of the proceeds to such of said sons as may be living, in equal shares or to the survivor of them, if any, otherwise to the executors or administrators of the Insured."
In 1950, American Cyanamid Company purchased additional insurance for the benefit of its employees by taking out a policy with the Indemnity Insurance Company of North America, known as a Blanket Accident Policy. This policy provided coverage for its employees, including the decedent, in the event of death, as a result of an accident while engaged in travel on the business of the company. The employer company issued a memorandum dated April 11, 1955, found in the files of the decedent after his death, addressed to "Division of Department Executives, Plant and Office Managers, All Holders of Air Travel Cards -- Subject: Travel Insurance for Employees," superseding a memorandum of June 5, 1951. In the memorandum, it was stated that the additional coverage was "intended as a complement to its other group insurance for employees." It set out a schedule showing death benefits based on the rate of employee's regular fixed compensation in the form of salary or wages. It stated that "Indemnity for loss of life of the insured employee is payable to the beneficiary designated by the insured employee under the Company's Employees Group Insurance Plan, or in the event no beneficiary has been designated thereunder, payment shall be made to the estate of the insured employee."
A clause of the Blanket Accident Policy, in force at decedent's death, contained an almost identical provision setting out that in the event of accidental death, indemnity is "payable to the Beneficiary, or Beneficiaries in the proportions designated by such Insured Employee under the Group Life Policy carried by the Employer, if any, otherwise, as on file with the employer, if no beneficiary designated, then to the estate of such Insured Employee." *895
In 1950, when the Blanket Accident Policy was issued, coverage of the decedent amounted to $28,000.00. Carter had a coverage of $40,000.00 at his salary scale according to the memorandum of April 11, 1955. The coverage increased to $52,000.00 in 1956; to $118,000.00 in 1958; and in 1959 amounted to $126,000.00.
Decedent's salary at the date of his death was $15,000.00 per year. The evidence does not show that Carter received any formal notice of the precise amount of the increased benefits arising from increases in his salary, except by the memorandum of April 11, 1955, which disclosed that his coverage was $40,000.00 at the time of its issue.
Both the 1955 memorandum and the superseded memorandum of June 5, 1951, likewise addressed to the executives of the several divisions of the company, plant and office managers, set out the benefits of the Blanket Accident Policy and suggested that all employees be made acquainted with their contents. In June, 1951, decedent was the personnel manager of the plant of the American Cyanamid Company.
The trial court held that since it appeared from the evidence decedent knew that his coverage under the Blanket Accident Policy amounted to $40,000.00, when he designated his mother and his sons as beneficiaries under the Group Policy, and was thereafter unaware of any increased coverage, and made no designation as to the payment thereof, he effectively designated the distribution of $40,000.00 only, that is, $2,000.00 to his mother and $19,000.00 to each of his sons, and died intestate as to the balance of the amount payable under the policy, that is, $86,000.00.
The court thereupon decreed that the Indemnity Insurance Company of North America, after the payment of a fee of $100.00 to the guardian ad litem of the infant defendants, and a fee of $200.00 to their counsel for services rendered in this proceeding, pay to Aurelia I. Carter the sum of $2,000.00; to the First National Trust and Savings Bank of Lynchburg, Virginia, guardian of John Scott Carter the sum of $19,000.00, and as guardian of Francis C. Carter a like sum of $19,000.00, the beneficiaries designated under the Group Policy and by reference designated beneficiaries to the extent of $40,000.00 under the Blanket Accident Policy; and pay the balance of the fund amounting to $85,700.00 to Willis Scott Carter, administratrix of the estate of John S. Carter, deceased.
The court further decreed that because of the objection and exception of the guardian ad litem of the infant defendants to the payment of the said sum of $85,700.00 to the estate of the decedent, instead of *896 to the two infant defendants, the said sum should be paid to the clerk of the trial court and deposited in the First National Trust and Savings Bank of Lynchburg, Virginia, on savings account, subject to the further order of the court.
The deposit has accordingly been made, and we are concerned here only with its distribution to the beneficiary or beneficiaries entitled to it. No exception has been made to any other distribution under the decree.
Willis Scott Carter, widow of the decedent, contends that it is inconceivable that her husband intended her to be excluded from the benefits of the Blanket Accident Policy, in view of their mutual love, respect and cooperation. She argues that his designation of beneficiaries, as applied to the above policy, should be corrected and reformed on the ground that he did not appreciate the full import of his employer's memorandum of 1955, and was unaware of the amount of the indemnity provided.
The provision of the Blanket Accident Policy relating to the designation of a beneficiary or beneficiaries thereunder is clear, simple, direct and free from ambiguity. It specifically provides that indemnity shall be payable to the beneficiary or beneficiaries in the proportion designated by the insured employee under the Group Policy procured by the employer. It is conceded that decedent effectively designated his mother and his two sons to receive all of the proceeds payable under the Group Policy.
There is no evidence of mistake of fact, unilaterally or mutually, and there is no charge of fraud or misrepresentation. The question before us is not what is best for decedent's wife or family, or what decedent may have wished to do in consideration of all circumstances; but whom did he designate as his beneficiary or beneficiaries of the indemnity provided in the Blanket Accident Policy.
The terms, provisions and conditions of a life insurance policy are to be considered the same as in other contracts, subject only to the provisions of law affecting insurance contracts. The courts have neither the duty nor the power to make the contracts. It is only their function to construe them. The intention of the parties must be determined from what they actually say and not from what it may be supposed they intended to say. Where the meaning of the language used is clear, a contract needs no interpretation. It speaks for itself. We are bound to adhere to it as the authentic expression of the intention of the parties. Darden North American Benefit Association, *897 170 Va. 479, 482, 197 S.E. 413; Atlantic Life Insurance Company Worley, 161 Va. 951, 960, 172 S.E. 168; Indemnity Insurance Company Jordan, 158 Va. 834, 841, 164 S.E. 539; 12 Am. Jur., Insurance, | 245, page 627; 44 C.J.S., Insurance, | 289, page 1136.
John Shadrach Carter occupied a responsible business position, and had had considerable experience in obtaining life insurance and in designating his beneficiaries. [1] In the Group Policy, he originally designated his wife as beneficiary. In 1951, after he received notice from the Prudential Insurance Company that his coverage under the policy had increased to $16,000.00, he changed the designation from his wife to his mother and son, John Scott Carter. On June 4, 1954, after the birth of his second son, and with knowledge of the increased coverage to $22,000.00, he designated as his beneficiaries his two sons and his mother, omitting his wife. On January 1, 1957, he was furnished a certificate showing an increase to $26,000.00; but he still did not designate his wife as one of his beneficiaries.
When decedent left his home on October 26, 1959, by airplane for New York, he purchased a policy of insurance on his life in the amount of $25,000.00, naming his wife as beneficiary. When he left New York by airplane to return home on October 30, 1959, he purchased a similar policy in the amount of $25,000.00, designating his wife as beneficiary.
The proceeds from these additionally mentioned policies are not in controversy here; but their purchase by decedent is cited to show his interest in his family and his experience in obtaining life insurance coverage.
It is not consistent with decedent's character as an experienced businessman, and his familiarity with insurance contracts to believe that he did not know what he was doing, in 1954, when he designated his mother and his sons as the only beneficiaries of the Group Policy, or that he did not know that the same designation applied to the Blanket Accident Policy.
We do not know why decedent did not include his wife or his estate as a beneficiary in the two policies along with those named by him. He plainly indicated that he did not desire his wife to share in the Group Policy, when he changed the beneficiaries therein. Whatever reason he then may have had, may have been the same reason *898 which impelled him not to include her as a beneficiary under the Blanket Accident Policy. What he desired to do must be ascertained from what he declared.
The only authentic expression of his intention is the designation that he made in the Group Policy, a designation which specifically became a part of the Blanket Accident Policy. He named his mother to receive a specified portion of the indemnity payable and then named his sons to receive "the remaining portion" in equal shares, without any limitation or restriction whatever on the amount thereof. It was only in the event that his mother and his sons failed to survive him that the proceeds were to go to the executors or administrators of his estate. We have no right to usurp his right to name his beneficiaries.
We have been cited to no insurance case in Virginia, nor have we found one, which deals with the precise question presented here. However, in several will cases involving the construction of devises or bequests where the property involved increased in value between the time of the execution of the will and the death of the testator, we have held that the devises or bequests were to be considered independently of such increase. We said, and we here repeat, that where a testator fails to make provisions in his will dependent upon circumstances, either foreseen or unforeseen, then the courts should refuse to make such provisions for him; and that it is our duty to follow the intention of the person signing an instrument as shown by the language used and not to reform or correct the same because of unforeseen conditions arising after its execution. Trower Spady, 117 Va. 173, 178, 83 S.E. 1049; Hurt Hurt, 121 Va. 413, 423, 93 S.E. 672. Cf. Rule First National Bank, 182 Va. 227, 28 S.E.2d 709.
It is immaterial whether or not decedent was aware of the full amount of his increased coverage under the Blanket Accident Policy. He disposed of the entire amount, whatever it might be, by designating his mother to receive "$2,000, or the proceeds if less," and his sons, "or to the survivor of them, if any, otherwise to the executors or administrators" of his estate, "the remaining portion." It would be difficult to employ language making a more positive and effective disposition of the entire proceeds of the policy, and the portions thereof which his designated beneficiaries should receive.
For the foregoing reasons, we are of opinion that the decree of the trial court, insofar as it directed the payment of the sum of $85,700.00 to Willis Scott Carter, administratrix of the estate of the decedent, is erroneous and should be reversed. We will, therefore, here enter a final decree ordering that, out of the sum of $85,700.00 on deposit on *899 savings account in the First National Trust and Savings Bank of Lynchburg, Virginia, there be paid a fee of $2,000.00 to Robert L. Marshall, counsel and guardian ad litem for the infant defendants upon this appeal, and that the balance of $83,700.00, and interest thereon, be paid to the First National Trust and Savings Bank of Lynchburg, Virginia, guardian of John Scott Carter and Francis C. Carter, the infants to share equally in said balance.
Reversed and final decree.
NOTES
[1] It appears from the record that decedent, prior to his marriage, purchased a policy of life insurance for $1,000.00, and immediately following his marriage named his wife as beneficiary therein; that following the birth of their son, John, he took out an insurance policy of $5,000.00 on his life, designed to provide funds for the education of his son, and also purchased an endowment policy on the life of his son. Upon the birth of his second son, he purchased an endowment policy on the life of that son to provide him with funds for an education. In 1958, decedent cashed the endowment policy taken out for his second son, in order to use the proceeds to acquire a house. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322845/ | 609 S.E.2d 445 (2005)
Griselda GUTIERREZ, Employee, Plaintiff,
v.
GDX AUTOMOTIVE, Employer, St. Paul Fire & Marine Insurance Company, Carrier, Defendants.
No. COA04-415.
Court of Appeals of North Carolina.
March 15, 2005.
*447 Brooke & Brooke Attorneys at Law, by Thomas M. Brooke, China Grove, for plaintiff-appellee.
Stiles Byrum & Horne, L.L.P., by Henry C. Byrum, Jr., and Virginia Lee Bailey, Charlotte, for defendants-appellants.
*446 TYSON, Judge.
GDX Automotive ("GDX") and St. Paul Fire & Marine Insurance Company (collectively, "defendants") appeal from opinion and award entered by the North Carolina Industrial Commission ("the Commission") awarding Griselda Gutierrez ("plaintiff") benefits for an injury she sustained at work. We reverse.
I. Background
The undisputed findings of fact show that GDX manufactures interior car parts. Plaintiff worked for GDX as an assembler from 28 June 1999 through 28 February 2001. She was approximately thirty years old, had completed approximately three years of high school, and was an undocumented worker of Mexican descent who spoke no English.
On 14 July 1999, plaintiff lifted a bin of parts weighing approximately fifteen pounds and immediately experienced lower back pain. That day, she sought medical attention at ProMed, where Dr. David Mobley ("Dr. Mobley") diagnosed her with a lumbar strain and recommended conservative treatment, to include medications and warm compresses. On 20 July 1999, plaintiff returned to Dr. Mobley, and he noted an improvement in her condition. Plaintiff reported pain after "bending and lifting and washing and drying clothes."
She returned to ProMed again on 21 July 1999 and was examined by Dr. Ronald Huffman ("Dr. Huffman"). Dr. Huffman's examination revealed good range of motion of plaintiff's back, ability to twist without difficulty, negative straight leg raising, and no neurological symptoms. On 27 July 1999, Dr. Mobley examined plaintiff and approved her to return to work at regular duty, which she resumed that day.
Plaintiff did not seek further medical treatment until 28 March 2000, when she returned to ProMed after injuring her right elbow, and again on 21 September 2000 for treatment for a severe headache. Plaintiff did not complain of back pain during either visit.
Although plaintiff missed work on 9 January 2001, she returned to work. On 15 January 2001, plaintiff sought treatment from Dr. Michael Binder ("Dr. Binder"), a chiropractor, and stated she had been experiencing lower back pain from working on her job for approximately fifteen months. On 17 January 2001, plaintiff presented a chiropractor's note excusing her from work until 19 January 2001. Plaintiff again visited Dr. Binder's office on 5 February 2001 and received work restrictions, which her employer could not accommodate.
On 9 March 2001, plaintiff sought treatment from Dr. Jeffrey Baker ("Dr. Baker"), an orthopaedic surgeon. Dr. Baker diagnosed plaintiff with degenerative disk disease and referred her for physical therapy. Following a hearing, Deputy Commissioner George T. Glenn, II, awarded plaintiff continuing disability compensation and medical treatment for her back injury. Defendants appealed to the Full Commission, which concluded plaintiff was entitled to ongoing temporary total disability compensation and medical treatment for an injury that occurred on 14 July 1999. Defendants appeal.
II. Issues
The issues presented on appeal are whether the Commission erred by: (1) failing to consider testimony and adjudicate evidence of plaintiff's treating physicians revealing plaintiff fully recovered from the back strain she sustained on 14 July 1999; (2) concluding that plaintiff's alleged back condition after 27 July 1999 proximately resulted from her occupational injury on 14 July 1999; and (3) concluding that plaintiff has been totally disabled as a direct result of her occupational injury since 5 February 2001.
III. Standard of Review
On appeal from the Commission in a workers' compensation claim, our standard of review is
whether there is any competent evidence in the record to support the Commission's findings of fact and whether these findings *448 support the Commission's conclusions of law. The findings of fact made by the Commission are conclusive upon appeal when supported by competent evidence, even when there is evidence to support a finding to the contrary. In weighing the evidence[,] the Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony and may reject a witness'[s] testimony entirely if warranted by disbelief of that witness.
Plummer v. Henderson Storage Co., 118 N.C.App. 727, 730-31, 456 S.E.2d 886, 888 (internal citations omitted), disc. rev. denied, 340 N.C. 569, 460 S.E.2d 321 (1995).
IV. Testimony of Treating Physicians
Defendants contend the trial court erred by failing to consider testimony and to adjudicate evidence from plaintiff's two treating physicians that plaintiff fully recovered from her back strain injury. We agree.
Defendants concede that credibility determinations of the Commission are binding on appeal, but argue the Commission may not ignore competent evidence when weighing the evidence. We have repeatedly held "[i]t is reversible error for the Commission to fail to consider the testimony or records of a treating physician." Whitfield v. Lab Corp. of America, 158 N.C.App. 341, 348, 581 S.E.2d 778, 784 (2003) (citing Jenkins v. Easco Aluminum Corp., 142 N.C.App. 71, 78, 541 S.E.2d 510, 515 (2001)). Further, before finding the facts, the Commission "must consider and evaluate all the evidence before it is rejected." Jarvis v. Food Lion, 134 N.C.App. 363, 366-67, 517 S.E.2d 388, 391 (1999) (citations omitted), disc. rev. denied, 351 N.C. 356, 541 S.E.2d 139 (1999).
Here, plaintiff failed to report any problems regarding her back injury during several subsequent visits to ProMed after her back injury and when she was treated by Dr. Eric Troyer ("Dr. Troyer") for her headaches and menstrual problems. Defendant contends that plaintiff's failure to inform ProMed and Dr. Troyer of any continuing back injuries in 2000 shows that she was not experiencing pain or other difficulty with her back during that year. Although this evidence tends to indicate that plaintiff had no further difficulty with her back after she was released to return to work, it is not for this Court to weigh the evidence. See Plummer, 118 N.C.App. at 730, 456 S.E.2d at 888.
The opinion and award entered by the Commission shows that it recognized that plaintiff was treated by other physicians for unrelated injuries during the course of her treatment for the back injury. The Commission found, "Plaintiff sought treatment at ProMed for the treatment of other injuries . . .," but entered no findings regarding plaintiff's treatment with Dr. Troyer. A review of Dr. Troyer's deposition reveals that plaintiff, who was seeking treatment for symptoms totally unrelated to her back injury, omitted any reference to her back injury or back pain when giving her medical history to Dr. Troyer. The Commission is not required to receive evidence from every physician who had treated plaintiff, but is required to enter findings of fact regarding material evidence properly presented to and considered by the Commission. See Whitfield, 158 N.C.App. at 348, 581 S.E.2d at 784. The Commission erred by failing to enter a finding of fact regarding the consideration, credibility, or relevancy of Dr. Troyer's deposition testimony.
V. Causation
Defendants also contend the Commission erred by awarding plaintiff compensation benefits when no competent evidence shows plaintiff's symptoms were proximately caused by her injury. We agree.
It is well-settled in our jurisprudence that "[i]n a worker's compensation claim, the employee has the burden of proving that his claim is compensable . . . [and] must prove that the accident was a causal factor by a preponderance of the evidence." Holley v. ACTS, Inc., 357 N.C. 228, 231-32, 581 S.E.2d 750, 752 (2003) (internal quotations and citations omitted). "Although expert testimony as to the possible cause of a medical condition is admissible if helpful to the jury, it is insufficient to prove causation, particularly when there is additional evidence or testimony *449 showing the expert's opinion to be a guess or mere speculation. . . ." Id. at 233, 581 S.E.2d at 753 (internal quotations and citations omitted). In Holley, our Supreme Court held, "the entirety of causation evidence before the Commission failed to meet the reasonable degree of medical certainty standard necessary to establish a causal link between plaintiff's twisting injury and her [disabling condition]." Id. at 234, 581 S.E.2d at 754. The Court specifically noted the evidence and the plaintiff's medical history showed several potential causes of the injury.
Here, plaintiff's own treating physicians only testified that plaintiff's injury was a "possible" cause of her symptoms. This evidence is insufficient to support plaintiff's burden of proving causation to establish compensability. Id.
Plaintiff argues Dr. Baker's testimony that plaintiff's injury "could or might have resulted in the symptoms presented" is sufficient to establish compensability. Our Supreme Court specifically rejected "could or might" testimony to prove causation and stated, "mere possibility has never been legally competent to prove causation." Id. at 234, 581 S.E.2d at 753. Plaintiff's argument is without merit.
No evidence supports a finding of causation by the Commission. Without competent evidence, the Commission's conclusions are likewise unsupported and the opinion and award must be reversed.
IV. Disability
Defendants also argue that the Commission erred by concluding plaintiff was disabled as a result of her injury. In addition to and as an alternative basis to support reversal of the Commission's opinion and award, we agree with defendants' argument.
We have stated:
[D]isability as defined in the [Workers' Compensation] Act is the impairment of the injured employee's earning capacity rather than physical disablement. Peoples v. Cone Mills Corp., 316 N.C. 426, 434, 342 S.E.2d 798, 804 (1986). The burden is on the employee to show that [s]he is unable to earn the same wages [s]he had earned before the injury, either in the same employment or in other employment. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982).
Russell v. Lowes Product Distribution, 108 N.C.App. 762, 765, 425 S.E.2d 454, 457 (1993). In meeting this burden, plaintiff must show:
(1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.
Id. (internal citations omitted).
Plaintiff failed to present any evidence that she has been unsuccessful after a diligent effort to obtain employment. Our review of the record shows no evidence that plaintiff made any attempt to obtain any position after 5 February 2001. Further, plaintiff presented no evidence of a preexisting condition preventing her from earning the same or higher wages as she did while employed with GDX.
The Commission found plaintiff was physically incapable of work in any employment based on Dr. Baker's report. This finding of fact is unsupported by any competent evidence in the record. Dr. Baker testified that his office never assigned plaintiff any specific work restrictions or instructed her not to work. He testified to the contrary and stated, "What I observed in the patient, she could work."
Without any evidence to support the Commission's finding that Dr. Baker "indicated that plaintiff was unable to work," the Commissions finding of disability constitutes a separate and independent reason to reverse the Commission's opinion and award.
*450 VII. Conclusion
The Commission failed to make any finding of fact revealing that it considered the deposition testimony from Dr. Troyer, plaintiff's treating physician. The Commission further erred by concluding plaintiff's injury, which she sustained while working for GDX, was the proximate cause of her symptoms. Without any evidence to support the causation element, the Commission erred in awarding plaintiff compensation benefits. The Commission erred by determining plaintiff was disabled, when no competent evidence in the record supports this conclusion.
The opinion and award is reversed.
Reversed.
Judges MCGEE and GEER concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322867/ | 609 S.E.2d 362 (2004)
271 Ga.App. 90
The STATE
v.
BIBBINS.
No. A04A1305.
Court of Appeals of Georgia.
December 1, 2004.
Reconsideration Denied December 16, 2004.
*364 William T. McBroom, District Attorney, Thomas J. Ison, Kr., Assistant District Attorney, for appellant.
Virgil Brown, Eric Hearn, Ronald Ellington, Virgil L. Brown & Associates, Square Zebulon, for appellee.
ELDRIDGE, Judge.
The State appeals from an order granting Stephen Ralph Bibbins' motion to suppress drugs found pursuant to an alleged consent search conducted during the course of a valid traffic stop. The trial court did not make a factual finding about whether consent was actually obtained. Instead, the court determined that the detaining officer "exceeded the scope" of the traffic stop in asking for consent to search for drugs; thus, Bibbins' consent, if any, was the product of an "illegal detention." The following stipulated facts are necessary for proper resolution of this appeal.
While traveling on Interstate 75 on June 5, 2003, Special Agent Alex Bauch of the Griffin-Spalding Narcotics Task Force stopped a truck driven by Bibbins after the truck crossed the fog line. Bauch approached the vehicle, obtained Bibbins' driver's license, noted that Bibbins had a Florida address, and informed him that he had been stopped for crossing the fog line. Bauch then ran Bibbins' license information through the police computer and discovered no problems. He returned to Bibbins' truck and, just before writing a citation for failure to maintain lane, stated, "Do you mind if I ask you a question?" When Bibbins responded, "Sure," Bauch told him that Spalding County had a problem with "people driving through with large amounts of drugs, marijuana, and guns, and currency related to the drug trade." Bauch then asked Bibbins whether he could search Bibbins' vehicle for contraband. At that point, Bauch was still holding Bibbins' license in preparation for writing out a traffic ticket. Based upon Bibbins' reply, a search was conducted and approximately four pounds of marijuana was discovered. The officer then arrested Bibbins and cited him for the drug possession and the lane violation. Held:
By this appeal, we are squarely presented with the opportunity to address an issue that as the transcript of the motion to suppress hearing amply demonstrates has caused considerable consternation in law enforcement circles, as well as with bench and bar, i.e., whether asking for consent to search for drugs during the course of a brief, ongoing traffic stop can, in and of itself, be a Fourth Amendment violation so as to make a valid detention "illegal," thereby rendering any consent to search the product of such illegal detention. This Court welcomes the chance to consider this issue, since the confusion that can be generated by the application of Fourth Amendment legal principles in the "real world" has not gone unnoticed. We who parent wisdom through written opinion also recognize that "[m]ore wisdom is latent in things as they are than in all the words men use."[1] So, a pragmatic deliberation encompassing the views of other jurisdictions on this issue is warranted and due.
1. In the field, even when officers have no basis for suspecting a person, they may approach and request consent to search for drugs.[2] This is a "first tier" encounter, and the request to search, itself, does not turn the encounter into an illegal detention: "it is clear that merely requesting consent for a search is not a seizure and does not require articulable suspicion."[3] So, too, an *365 officer may detain a citizen when a traffic violation has been committed in his presence; this detention is a legitimate "second tier" encounter. However, in this instance, the dissent would find that an officer may not request consent to search for drugs; that the request, itself, turns the otherwise legitimate detention into a Fourth Amendment violation.
What an anomalous result. Approaching a person to request consent to search causes him to stop for at least the time needed to hear the request and respond, which delay could be called a "detention," though it is not. Yet the same request asked of someone already lawfully detained causes no undue delay, but is considered by the dissent to create an unlawful "detention." If a request to search does not turn a first tier encounter into an invalid detention, the same request does not turn a second tier encounter into an invalid detention. After all, a refusal is an authorized result in both instances. Rather, "police questioning, by itself, is unlikely to result in a Fourth Amendment violation."[4] Indeed,
a police officer's questioning, even on a subject unrelated to the purpose of the stop, is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure.... [T]he issue regarding unrelated questions concerns not the content of the questions, but their impact on the duration of the stop.... Therefore, only unrelated questions which unreasonably prolong the detention are unlawful; detention, not questioning, is the evil at which Terry's prohibition is aimed.[5]
In State v. Gibbons,[6] this Court considered a Terry detention in which an officer instituted a valid traffic stop for a seat belt violation, but he performed no act necessary to discharge the duties that he had incurred by virtue of the traffic stop: he did not conduct a license check, vehicle check, or insurance check; and he did not make any inquiry relating to the traffic violation for which the stop was made. Nor did he ever indicate that the detainee would be cited for a seat belt violation. In fact, the officer admitted that he obtained the detainee's driver's license, retained it, and thereafter asked numerous, wide-ranging questions simply because he had "an uneasy feeling" about the detainee.[7] Under the specific facts of Gibbons, the detention following the initial stop of the vehicle appeared to be a pretext to furnish the officer solely with a forum to ask questions, not to pursue the ends of a legitimate traffic stop. Consequently, we upheld the trial court's grant of the motion to suppress. Central to our decision, however, was the unreasonable prolongation of the duration of the traffic stop solely in order to ask questions: "It [was] this continued detention that [made] the questioning and request to search without reasonable suspicion of criminal activity impermissible."[8] This distinction must not be lost: the unreasonable prolongation of the duration of the seizure not the content of the questions invalidated the stop.[9]
It must also be understood that the duration of a traffic stop is not synonymous with its "scope," and for several years now, this has been a gray area. The issue of the "scope" of a search and seizure was first articulated in Terry, itself, where it was held that a search and seizure must be "reasonably related in scope to the circumstances which justified the interference in the first *366 place";[10] to that end, a traffic detention "must be temporary and last no longer than is necessary to effectuate the purpose of the stop."[11] A simplistic interpretation of the term "purpose" might propel the conclusion that it refers to only the specific traffic offense that inspired the pull-over, and thus, any action or inquiry unrelated to that specific traffic offense is impermissible. But to accept this interpretation would be to deny the realities of a traffic stop, which has as its "purpose" the enforcement of traffic laws for highway public safety,[12] and in which law enforcement has never been restricted simply to writing out a ticket and ending the encounter. Instead, an officer's duties relative to any traffic detention have always included a computerized check of license, registration, vehicle identification number (VIN), and identification, regardless of the specific violation involved. "The foremost method of enforcing traffic and vehicle safety regulations, it must be recalled, is acting upon observed violations. Vehicle stops for traffic violations occur countless times each day; and on these occasions, licenses and registration papers are subject to inspection and drivers without them will be ascertained."[13] Certainly, "[s]uch checks serve a valid traffic and general law enforcement purpose as they warn the responding officer of any known dangers about the person stopped and the status of the car. They are also closely related to the purpose for the initial detention traffic safety and security."[14] During the course of an ongoing traffic stop where these duties are being diligently pursued, this Court has long allowed law enforcement to ask brief, general investigative questions such as those related to travel plans, itinerary, and ownership of the vehicle.[15] Comparable questions have been approved in other jurisdictions as relating to the scope of any traffic investigation.[16] And such questions asked during the course of a traffic violation investigation do not unreasonably prolong the duration of the stop. As a practical matter, it takes time to check a detainee's license and registration and to complete a citation or warning, whether brief general investigative questions are asked or not; as long as the questions do not unreasonably delay the accomplishment of these activities, the stop has not been prolonged.[17]*367 Also, under the same circumstances, the highest court in this nation has recognized the authority of an officer to ask a drug-related question during the course of a traffic stop, e.g., "Are you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?"[18] Such an inquiry is reasonably related to legitimate highway public safety concerns "in light of the problem of interstate drug traffic."[19] It is minimally intrusive and does not unreasonably prolong an ongoing detention.[20] So, too, during the course of an ongoing traffic investigation, a simple request for consent to search is not impermissible and does not cause unreasonable delay.[21] AS ONE OF OUR SISTEr states determined when considering the same issues we speak to today,
[Defendant] argues ... that the very asking of the first question about drugs and firearms, without a reasonable suspicion that he possessed either, transformed the legal stop into an illegal stop, making his consent automatically invalid. In Robinette, [supra,] the police asked the suspect the same question, immediately followed by a request to search, just as in this case. The [United States Supreme] Court in Robinette did not expressly decide whether the asking of this question and asking permission to search violated the Fourth Amendment. However, we have difficulty in reconciling its conclusion that Robinette's consent to search, if voluntary based on all the circumstances, is valid with [defendant's] proposition that the consent is invalid solely because the officers could not legally ask to search in the first place.[22]
This Court's long-held position on this issue is illustrated as follows:
During this valid traffic stop, [the trooper] asked [the defendant] about weapons and drugs and then asked for consent to search. [Defendant] claims that the police officer's mere asking of the questions, which admittedly did not prolong the stop, was in and of itself a violation of his constitutional rights and rendered his consent invalid. We have previously rejected such a notion. Having already effected a valid stop of the vehicle, the trooper certainly did not violate the appellant's Fourth Amendment rights merely by requesting such consent.[23]
This holding and the numerous cases which reflect it have never been overruled and are binding authority on this Court.
Truly, from the sheer volume of cases cited, both supra and by the dissent, it bears recognition that the disarray generated through the practical application of complex Fourth Amendment issues is extensive. Conflict exists. Yet, it is not only incorrect but a deep oversimplification to say, as the *368 dissent has, that the Eighth, Ninth, and Tenth Circuits "have held that an officer may not ask questions during a traffic stop that are unrelated to the purpose of the original stop." Such a blanket statement ignores the struggle these circuits have had with this issue, a struggle that mirrors our own. Like here, there is a "split in authority" within the circuits themselves. Scratch the surface of any of the cases cited by the dissent, and additional cases revisiting the issue for an alternate result will be revealed. For example, the dissent's multiple cites to the Tenth Circuit case, United States v. Holt,[24] for the proposition that questioning, itself, may be a Fourth Amendment violation ignores that circuit's more recent foray into this arena, United States v. Oliver.[25]Oliver went to great lengths to distinguish Holt, asserting that Holt had not meant to go as far as some might have it; that Holt stood only for "reasonableness" in any detention and that, "[q]uestioning in itself does not constitute a search or seizure."[26] Indeed, Oliver reaffirmed the Tenth Circuit's prior statement in United States v. Walker:[27]
[O]ur determination that the defendant was unlawfully detained might be different if the questioning by the officer did not delay the stop beyond the measure of time necessary to issue a citation. For example, this case would be changed significantly if the officer asked the same questions while awaiting the results of an NCIC license or registration inquiry.[28]
The point is that the mixed messages reflected in the case law demonstrate the slippery slope of confusion created when Fourth Amendment search and seizure law is used to control perceived police abuses against which the Fourth Amendment was never designed to protect. That police questioning occurs during a traffic seizure does not make the questioning a Fourth Amendment issue; the seizure is. And the dissent's justification that this issue is "far from settled" in other jurisdictions is hardly a rationale to leave it so in this one.[29]
Today, this Court takes a step toward clarity, as have the courts from many other jurisdictions. We reaffirm the long-standing precepts addressed above, recognizing that the "scope" of a traffic detention has never been limited to the isolated traffic offense that led to the pull-over, but is broad enough to encompass identified, legitimate law enforcement goals relating to highway public safety, as long as the pursuit of those goals does not unreasonably prolong the duration of a valid, ongoing stop.[30]
2. In a hearing on a motion to suppress, the focus on the unreasonable prolongation of the duration of an ongoing, valid traffic investigation decided on a case-by-case basis precludes a deliberate delay in issuing a citation while conducting a lengthy "fishing expedition," as occurred in the Gibbons case. In assessing whether a valid, *369 ongoing traffic investigation is too long in duration to be justified, common sense must reign.[31] The "touchstone of the Fourth Amendment is reasonableness ... measured in objective terms by examining the totality of the circumstances."[32] Therefore, a reviewing court may consider many factors in determining whether the duration of an ongoing traffic detention has been unreasonably prolonged, by questioning or otherwise. These factors may include the length of time involved; however, it should be remembered that the establishment of a rigid time frame for traffic detentions has been expressly rejected by Fourth Amendment jurisprudence.[33] Additional inquiry should examine whether during the detention the police were diligently pursuing "a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant";[34] whether (as in Gibbons) wide-ranging questioning extended the duration of the stop beyond a reasonably brief period;[35] and whether there was an unwarranted delay in returning a driver's license or issuing a citation which extended the stop's duration unreasonably. This list is by no means exhaustive; it is not meant to be. Pragmatically, as the cases before this Court illustrate, the permutations between traffic stops are as great as the variations between the participants and the circumstances surrounding each encounter.
In the case before us, the evidence is that the brief, nine-minute traffic detention had not been concluded at the time the officer requested consent to search. During the ongoing detention, the record shows that the officer conducted a license and insurance check; that the checks were diligently pursued; that the officer was holding Bibbins' license in preparation for writing out a traffic citation; that the request for consent to search was made immediately after the license was checked and just before the ticket was written and thus the request, itself, did not cause unreasonable delay; that the search allegedly agreed to by Bibbins postponed the issuance of the lane violation citation and thus such postponement was acquiesced in; that the citation was in fact issued after the search; and that no extensive questioning occurred. There is no claim that the traffic stop was illegal, and the described circumstances meet the State's burden to establish the validity of the ongoing traffic investigation. The evidentiary burden to prove an illegality then shifted to Bibbins.[36] Bibbins did not meet his burden to show that the officer's request to search unreasonably prolonged the duration of the nine-minute traffic detention so as to render the ongoing traffic detention illegal. Accordingly, any consent to search was not the *370 product of an "illegal detention." The trial court's grant of Bibbins' motion to suppress was error.
3. Having concluded that the officer's request to search Bibbins' car for contraband did not render the otherwise valid traffic stop an illegal detention, another issue remains: whether Bibbins voluntarily consented to the search of his car. The analysis of this issue should not be confused with the analysis discussed above. The question of whether the duration of an ongoing, valid traffic detention and investigation is "reasonable" involves a separate inquiry. If the answer is no, an illegal detention results. At that point, it matters not whether the stop was "ongoing" or "concluded," the issue remains the same: whether the subsequent consent was the product of the prior illegality or sufficiently attenuated therefrom.[37]
If, however, as in this case, the duration of the ongoing detention and investigation was reasonable, the question is whether objective factors demonstrate that the detainee's consent was voluntary. In that regard, the circumstances surrounding a traffic stop do not in and of themselves prevent a detainee from voluntarily consenting to a search of his vehicle. As the United States Supreme Court explained in its examination of the issue of voluntary consent during a traffic stop,
There is no reason to believe, under circumstances such as are present here, that the response to a policeman's question is presumptively coerced; and there is, therefore, no reason to reject the traditional test for determining the voluntariness of a person's response.[38]
This traditional test looks to the totality of the circumstances, including factors such as the youth of the accused, his lack of education, his lack of intelligence, the length of detention, whether there was an advisement of constitutional rights, the repeated and prolonged nature of any questioning, the use of physical punishment, and the psychological impact of all these factors on the accused; certainly, no single factor is controlling.[39] Further, advisement of the right to refuse is a consideration, but it is not determinative.[40] Altogether, the role of filtering the wheat from the chaff in relation to the voluntariness of any consent belongs to the trial court. The appellate courts cannot judicially legislate against the potential for coercive police conduct in attaining voluntary consent anymore than we can ignore the legality of a search carried out after consent has been voluntarily given.
The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial restrictions upon such searches would jeopardize their basic validity.[41]
We leave the role where it belongs. In the case before us, the trial court declined to make a factual determination as to whether consent was given and, if so, whether such consent was voluntary. We remand this case to the court below for this determination, with a right to seek an appeal through established channels, depending upon the result.[42]
Judgment reversed and case remanded with direction.
ANDREWS, P.J., JOHNSON, P.J., MILLER and ELLINGTON, JJ., concur.
RUFFIN, P.J., and ADAMS, J., dissent.
RUFFIN, Presiding Judge, dissenting.
Because the majority's opinion effectively overrules established precedent without so *371 stating[43] and ignores the Supreme Court's decision in Daniel v. State,[44] I respectfully dissent.
This case revolves around Stephen Ralph Bibbins' alleged consent to the search of his vehicle during a traffic stop. Recently, our Supreme Court set forth a framework for analyzing the validity of such consent. First addressing the limits of a traffic stop, the Court in Daniel v. State noted that
[t]he officer's purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention.[45]
A traffic stop usually should last no longer than necessary to complete the purpose of the stop, and its scope "`must be carefully tailored to its underlying justification.'"[46] Thus, under Daniel, the initial question is whether the police inquiry exceeded the permissible limits of a valid traffic stop. If the inquiry fell within those limits, the detention was lawful, and we address whether consent made during the lawful detention was voluntary.[47] But, if the police inquiry exceeded the stop's legal limits, we must analyze the constitutionality of the expanded encounter and determine whether it violated the Fourth Amendment.
Extending an encounter beyond the initial stop is not always unconstitutional.[48] As found in Daniel,
lengthening the detention for further questioning beyond that related to the initial stop is permissible in two circumstances. First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter.[49]
Once again, if the extended encounter was permissible under the Fourth Amendment, we immediately consider whether the consent was voluntary.[50] If the encounter constituted an illegal second detention, however, we then determine "whether the consent was given voluntarily (under the totality of the circumstances test) and whether that consent was sufficiently attenuated from the unlawful seizure so that it was not the product thereof."[51]
The Daniel framework which binds this Court thus presents three questions for analysis: (1) Did the police inquiry extend beyond the limits of the original traffic stop? (2) If so, was the extended encounter legal under the Fourth Amendment? and (3) If consent resulted during an illegal detention, was it both voluntary and sufficiently attenuated from the unlawful detention that it was *372 not the product thereof? I will discuss each question in turn.
1. Although the majority does not address the Daniel framework, the basis of its opinion appears to involve the first question. According to the majority, Special Agent Bauch's request for consent to search Bibbins' truck did not extend the original traffic stop. I strongly disagree.
As we found in State v. Gibbons, a case in which three members of the current majority joined, and the author of the current majority dissented, "[a]n officer who questions and detains a suspect for reasons other than those connected with the original purpose of the stop exceeds the scope of permissible investigation unless he has `reasonable suspicion' of other criminal activity."[52]Gibbons is not alone in this pronouncement. We adhered to such principle before Gibbons, and we have followed it since.[53]
The record shows that when Bauch asked Bibbins for consent to search his truck, Bauch had already obtained the information from Bibbins' license, had checked the information on the police computer, and had found "no problems." But, instead of writing a ticket for the lane violation, otherwise continuing the traffic investigation, or returning the license, Bauch launched into an unrelated drug probe, without any objective basis at that time, and sought consent to search. I fail to see how such inquiry falls within the permissible scope of a lane-violation traffic stop under the language in Gibbons.
Moreover, I can find no reasonable distinction between this situation and several of our prior decisions. In State v. Habib,[54] for example, an officer stopped a car for a seat belt violation. While speaking with the car occupants, he noticed that both the driver and passenger had dry mouths, which the officer believed to be consistent with marijuana use. The officer obtained permission to search the passenger, and the search revealed the odor of marijuana. The passenger admitted to smoking marijuana the previous day, and the officer at that point "`felt like' both men had been smoking."[55] The officer then obtained consent to search the driver, which produced no contraband, and consent to search the car, which revealed marijuana in the back seat. During this encounter, the two men were not free to leave, and the officer held the driver's license.
The trial court granted the driver's motion to suppress, determining that the officer lacked articulable reasonable suspicion to expand the traffic stop and launch a drug probe. It concluded that the officer proceeded on a "`mere hunch'" based on the car occupants' dry mouths. We affirmed the trial court's decision, finding that the officer impermissibly exceeded the scope of the stop by conducting a drug investigation without reasonable suspicion.[56]
Similarly, in Smith v. State,[57] an officer stopped a motorist for a suspected drunk driving violation. The officer questioned the driver about his manner of driving, but the driver had no odor of alcohol on his breath, and the officer did not administer any field *373 sobriety tests. Instead, the officer requested consent to search the driver's truck. When the driver refused, the officer asked whether the driver had narcotics in the vehicle. Although the driver denied having such contraband, the officer continued to detain him and asked a police dispatcher to send a drug dog to the scene. While waiting for the drug dog, the officer noticed a plastic bag in the driver's mouth. The bag, which the driver spat out at the officer's request, contained marijuana.
The trial court denied the driver's motion to suppress, and we reversed.[58] We concluded that, without reasonable articulable suspicion, the officer asked the driver questions "that did not relate to his suspicion that [the driver] was driving under the influence and that did not relate to any traffic violations, but instead probed into [the driver's] possession of contraband, specifically narcotics, and culminated in the officer's request to search [the] truck."[59] We found that such probe illegally exceeded the permissible scope of a DUI investigation.[60] Thus, because the officer discovered the marijuana during an illegal detention, it should have been suppressed.[61]
Under established Georgia precedent, Special Agent Bauch exceeded the permissible limits of the initial traffic stop when he delayed the conclusion of that stop, commenced an unrelated drug inquiry, and asked consent to search Bibbins' car.[62] To find otherwise effectively overrules extensive case law.[63]
In its opinion, the majority asserts that Bauch's request for consent to search did not unreasonably prolong and thus did not impermissibly extend the traffic stop. In several recent cases, we have indicated that "only unrelated questions which unreasonably prolong the detention are unlawful."[64] I question whether such language properly follows the mandate that an investigative stop last no longer than necessary and have a scope carefully tailored to its underlying justification.[65] Clearly, scope and duration are not synonymous. And I cannot agree with the majority's suggestion that a drug inquiry conducted during a routine traffic stop in which the officer has found "no problems" somehow relates to issues of traffic safety and enforcement.[66]
Regardless, however, the record here shows that Bauch's unrelated drug inquiry did, in fact, unreasonably prolong the detention. At the time Bauch requested consent to search, he had completed his traffic investigation. But, rather than writing Bibbins a ticket, returning his license, or otherwise releasing him, Bauch abandoned the purpose of the stop and conducted a fishing expedition for drugs.
This is not a situation in which an officer asked for consent to search while writing a *374 traffic ticket, thus obtaining consent without prolonging the detention.[67] On the contrary, Bauch's actions unreasonably delayed the progression and conclusion of the stop.[68]Regardless of the delay's length, it extended the detention beyond that necessary to effectuate the stop's purpose.[69] This is the simple and single moment of analytical significance. Even the majority's author has noted previously that a prolonged detention results when "[an] officer without an apparent valid purpose since no investigation was being conducted into the traffic violation authorizing the stop retained the detainee's identification materials."[70]
Although the State bears the burden of proof,[71] it presented no evidence that Bauch's request fell within the traffic stop's permissible limits. In fact, the record shows the opposite. Accordingly, I find that Bauch extended the original traffic stop.[72]
2. The question thus becomes whether this prolonged encounter was constitutionally permissible. The State does not claim that Bauch had reasonable articulable suspicion to extend the stop. Instead, it contends that the stop became a consensual encounter during which Bibbins agreed to additional questioning, as well as the search of his truck. We must consider, therefore, whether the initial detention de-escalated into a consensual police-citizen encounter not implicating the Fourth Amendment.[73]
A consensual police-citizen encounter "has been defined as simply the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement official."[74] And an encounter constitutes "voluntary cooperation" if, given all of the surrounding circumstances, a reasonable person would have believed that he was free to leave.[75] In other words, no seizure occurs as long as a citizen feels free to disregard an officer's questions and walk away.[76]
Although distinguishing a consensual encounter from a seizure is "`necessarily imprecise,'"[77]*375 our Supreme Court has found that "`an encounter initiated by a traffic stop may not be deemed consensual unless the driver's documents have been returned to him.'"[78] We have similarly concluded that no reasonable person would feel free to leave a traffic stop before receiving his or her copy of the traffic citation.[79]
The record shows that Special Agent Bauch sought and obtained the alleged consent before returning Bibbins' license or writing Bibbins a traffic citation. As a matter of law, therefore, Bibbins was not free to leave, and the traffic stop had not become a consensual encounter. Consequently, the continued detention, which extended the traffic stop without reasonable suspicion, was illegal.[80]
3. The final relevant question involves the validity of Bibbins' alleged consent. As found by the Supreme Court, "[e]ven where the driver and vehicle occupants have been illegally detained, the driver or owner of the vehicle may nonetheless voluntarily consent to a search of the vehicle."[81] Once again, the State bears the burden of proving such consent to be voluntary, and this burden is particularly heavy when the consent follows an illegal detention.[82] Furthermore, if
an individual is illegally seized, searched or arrested, any consent obtained thereafter must be analyzed to determine both whether the consent was given voluntarily (under the totality of the circumstances test) and whether that consent was sufficiently attenuated from the unlawful seizure so that it was not the product thereof.[83]
The trial court did not specifically address the issue of consent. But even if Bibbins voluntarily agreed to the vehicle search, I believe that, as a matter of law, the illegal detention tainted the consent because the record reflects that the purpose of the continued detention was to request such consent. Under similar circumstances, we have held consent to search to be a product of the illegal detention in violation of the Fourth Amendment.[84] Precedent controls and takes note of similarities as well as sameness.
4. Having applied the analytical framework set forth in Daniel, I conclude that the trial court properly granted Bibbins' motion to suppress. The State cannot establish that Bibbins validly consented to the search of his truck. The majority's effort to find otherwise eviscerates significant case law and undercuts the Fourth Amendment. As a result, the bench, bar, and law enforcement personnel are left without guidance as to what officers can and cannot do during a traffic stop, a condition which the majority claims to correct.
I note that, under Daniel, Bauch could have obtained valid consent by allowing the stop to de-escalate into a consensual police-citizen encounter and then obtaining consent. But Bauch did not do so. Instead, he illegally extended a traffic stop, violating Bibbins' Fourth Amendment right to be free of unreasonable searches and seizures. Accordingly, I respectfully dissent.[85]
*376 I am authorized to state that Judge ADAMS joins in this dissent.
ADAMS, Judge, dissenting.
I concur fully in Presiding Judge Ruffin's dissent but write separately to note that (1) there is a split in the federal circuits regarding the main question presented; (2) federal circuit court opinions on this matter are not controlling on this Court; (3) the United States Supreme Court has limited the scope of permissible investigation in the related area of roadblock cases, to not include ordinary criminal wrongdoing such as illegal drug activities; (4) the result suggested by the dissents is not anomalous; and (5) the posture of this case on appeal and the record before us raises questions.
1. The primary question debated in this case is whether an officer may, during the course of a traffic stop, question the driver and request consent to search, on a subject unrelated to the purpose of the stop, without articulable suspicion of other illegal activity, such as drugs. The majority relies in part on the Eleventh Circuit case of United States v. Purcell, 236 F.3d 1274, 1279-1280 (11th Cir.2001), for the proposition that the only constitutional concern raised by such questioning is "not the content of the questions, but their impact on the duration of the stop." What the majority fails to note is that the Eleventh Circuit's comments that it recites were only meant to describe the Fifth Circuit's reasoning on the matter. In fact, in Purcell the Eleventh Circuit did not establish or adopt any particular guideline or test to determine when the scope of the stop has been exceeded. Id. Instead, the Eleventh Circuit Court simply "recognized that there are two possible tests for when a police investigation exceeds the scope of a routine traffic stop." United States v. Boyce, 351 F.3d 1102, 1111 (11th Cir.2003). Indeed, the federal circuits are split on this very question.
The Eighth, Ninth, and Tenth Circuit Courts have held that an officer may not ask questions during a traffic stop that are unrelated to the purpose of the original stop, even if the questioning does not extend the stop, unless the officer has reasonable suspicion of illegal activity.[86] The Fifth, Sixth, and Seventh Circuit Courts generally agree that such questioning is allowed so long as the unrelated questioning does not unreasonably lengthen the traffic stop.[87] So, the issue is far from settled in the federal courts.
2. Moreover, a federal circuit court's opinion on this issue is not binding on this Court, but merely persuasive authority.[88]
*377 3. The majority also appears to reason that questions about drug trafficking on our nation's roads are properly within the legitimate scope of all traffic stops. But as shown above, the federal circuit courts are split on this issue and the United States Supreme Court has not spoken.[89] Furthermore, in an instructive and possibly analogous case, the United States Supreme Court has held that roadblock/checkpoints contravene the Fourth Amendment if they are established for the primary purpose of detecting evidence of ordinary criminal wrongdoing, such as illegal drug activities. City of Indianapolis v. Edmond, 531 U.S. 32, 41-42(III), 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).[90] In other words, roadblocks, which may be established "to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety," may not be established with the primary purpose of drug interdiction (although illegal drug activities may be investigated if articulable suspicion develops). Id. The United States Supreme Court has therefore recognized that, at least in the roadblock setting, drug interdiction is beyond the scope of roadway-safety-traffic-law enforcement, which, as noted by the majority, is already broadly defined to include computerized checks of license, insurance, registration, VIN, and identification.
4. The majority contends that a restriction during a traffic stop on an officer's ability to request consent to search for drugs produces an anomalous result. The majority relies heavily on the idea that police questioning, in and of itself, does not constitute a seizure for Fourth Amendment purposes, see Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991), and on the argument that what is allowed at a first-tier stop cannot be improper at a second-tier stop.
But, as our own Court has noted, at a first-tier stop officers may "ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave." (Citation and punctuation omitted; emphasis supplied.) Akins v. State, 266 Ga.App. 214, 215, 596 S.E.2d 719 (2004). This distinguishes a first-tier stop from a second-tier stop, which, as is well established, is a temporary detention that constitutes a seizure within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-810, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). Similarly, as the United States Supreme Court has made clear, "[s]o long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required." (Citations and punctuation omitted.) Florida v. Bostick, 501 U.S. at 434, 111 S. Ct. 2382. In other words, although questioning alone is not a seizure, at a second-tier stop, the person is already seized. The tier system is based on the idea that more and more justification is required for police actions as the level of detention increases. Accordingly, it is not anomalous that during a traffic stop, police are required to have articulable suspicion to question a person about a nontraffic topic.
5. Finally, the posture of this case requires comment. At the hearing on the motion to suppress, the arresting officer was present in the courtroom but he did not testify, no other evidence was introduced, *378 and the parties did not stipulate to any facts. Rather, the parties and the court simply discussed the legal issue. The trial court indicated that it was concerned about this area of law because it had recently learned how law enforcement officers were being trained in this area. The two counsel and the court then discussed what they perceived as conflicting lines of authority from the Court of Appeals regarding consent to search. Finally, the court made a suggestion:
I can tell you what I can do. I can just make the decision and give y'all discretionary appeal and let you take it up there and straighten it out. . . .
Defense counsel suggested that the court rule in such a way so as to avoid having an interlocutory appeal. The court apparently agreed, and it decided to grant the motion to suppress so as to allow a direct appeal. Defense counsel commented, "... it's an adversarial system but we're together wanting to know what the answers are type thing (sic)."
On appeal, the only "stipulation" of facts before this Court is an attachment to both the State's and the defense's brief in which both counsel agree that the "Statement of Facts" section of their briefs shall constitute the "facts that would be adduced at trial." This Court may not consider documents attached to appellate briefs. High Voltage Vending v. Odom, 266 Ga.App. 537, 538, 597 S.E.2d 428 (2004). "Nevertheless, where `facts ... necessary for disposition are stated in a brief, and the State concedes such statement is substantially correct, we are permitted to reach a decision upon the agreed upon facts.'" (Citation and punctuation omitted.) Williams v. State, 253 Ga.App. 10, 557 S.E.2d 473 (2001). Oddly, however, the one thing that is not stipulated is what the defendant said in response to the question of whether he would agree to a search. The parties agree that Bibbins's answer to the request for consent to search is inaudible on the video tape. Ultimately, Bibbins's answer proved irrelevant based on the law in Daniel v. State, 277 Ga. 840(2)(a), 597 S.E.2d 116 (2004).
We caution the bench and bar that appeals may not be manufactured by the parties. The trial court should give full consideration of the merits of issues raised below based on the law and the facts as presented to it. It makes this Court's job much more tedious and difficult if it is required to sort out questions of whether proper procedure has been followed.
NOTES
[1] Antoine de Saint-Exupery.
[2] Palmer v. State, 257 Ga.App. 650, 652(1), 572 S.E.2d 27 (2002).
[3] Stokes v. State, 238 Ga.App. 230, 232, 518 S.E.2d 447 (1999). See also Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) (police questioning does not constitute a seizure for Fourth Amendment purposes).
[4] Immigration & Naturalization Svc. v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984).
[5] (Citation and punctuation omitted.) United States v. Purcell, 236 F.3d 1274, 1279-1280 (11th Cir.2001).
[6] State v. Gibbons, 248 Ga.App. 859, 547 S.E.2d 679 (2001).
[7] Id. at 863, 547 S.E.2d 679.
[8] Id. at 864, 547 S.E.2d 679 (Pope, P.J., concurring specially).
[9] See United States v. Machuca-Barrera, 261 F.3d 425, 432 (5th Cir.2001) (it is "the length of the detention, not the questions asked, that makes a specific stop unreasonable"); accord United States v. Brigham, 382 F.3d 500, 508 (5th Cir.2004) (en banc).
[10] Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
[11] (Emphasis supplied.) Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983).
[12] Delaware v. Prouse, 440 U.S. 648, 658-660, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979).
[13] Id. at 659, 99 S. Ct. 1391.
[14] Kothe v. State, 152 S.W.3d 54, n. 36 (Tex.Crim.App.2004); State v. Pegeese, 351 N.J.Super. 25, 31, 796 A.2d 934 (2002).
[15] See, e.g., United States v. Hardy, 855 F.2d 753(I) (11th Cir.1988); Almond v. State, 242 Ga.App. 650, 530 S.E.2d 750 (2000); State v. Hall, 235 Ga.App. 412, 509 S.E.2d 701 (1998); Sprauve v. State, 229 Ga.App. 478, 494 S.E.2d 294 (1997); Gamble v. State, 223 Ga.App. 653, 655-656, 478 S.E.2d 455 (1996); Sutton v. State, 223 Ga.App. 721, 723-724, 478 S.E.2d 910 (1996); Pitts v. State, 221 Ga.App. 309, 471 S.E.2d 270 (1996); Roundtree v. State, 213 Ga.App. 793, 446 S.E.2d 204 (1994); Benavides v. State, 193 Ga.App. 737, 388 S.E.2d 886 (1989); State v. Combs, 191 Ga.App. 625, 382 S.E.2d 691 (1989); O'Keefe v. State, 189 Ga.App. 519, 520, 376 S.E.2d 406 (1988); Lombardo v. State, 187 Ga.App. 440, 370 S.E.2d 503 (1988); Smith v. State, 184 Ga.App. 304, 305-306, 361 S.E.2d 215 (1987); Daugherty v. State, 182 Ga.App. 730, 356 S.E.2d 902 (1987).
[16] Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). Accord United States v. Jeffus, 22 F.3d 554, 556-557 (4th Cir.1994); United States v. Villa, 153 F. Supp. 2d 1247 (2001); United States v. Purcell, supra at 1279-1280; United States v. Shabazz, 993 F.2d 431 (5th Cir.1993); United States v. Palomino, 100 F.3d 446, 449-450 (6th Cir.1996); United States v. Bullock, 48 Fed.Appx. 912 (4th Cir.2002); State v. Griffith, 236 Wis. 2d 48, 613 N.W.2d 72, 78-85 (Wis.2000); State v. McClendon, 130 N.C.App. 368, 375, 502 S.E.2d 902 (1998).
[17] Kothe v. State, supra; accord 4 W. LaFave, Search and Seizures § 9.2(f), at 51-58. See also United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 1576, 84 L. Ed. 2d 605 (1985) ("Clearly this case does not involve any delay unnecessary to the legitimate investigation of the law enforcement officers."); United States v. Zucco, 71 F.3d 188, 190-191 (5th Cir.1995) (Terry detention not prolonged merely because officer waited for computer check); State v. Maginnis, 150 S.W.3d 117 (Mo.App.2004) (as long as the officer is running the records check, and issuing a citation, the officer may continue to conduct a reasonable investigation of the traffic violation by conversing with the driver).
[18] Ohio v. Robinette, 519 U.S. 33, 38-39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996); Delaware v. Prouse, supra at 654, 99 S. Ct. 1391.
[19] State v. Hall, supra at 415, 509 S.E.2d 701 (1998); accord O'Keefe v. State, supra at 525, 376 S.E.2d 406; Kan v. State, 199 Ga.App. 170, 171(1), (2), 404 S.E.2d 281 (1991).
[20] State v. Akuba, 686 N.W.2d 406, 417-418 (S.D.2004); State v. Hickman, 335 N.J.Super. 623, 636-637, 763 A.2d 330 (2000); State v. Griffith, supra; State v. Gaulrapp, 207 Wis. 2d 600, 608-609, 558 N.W.2d 696 (1996).
[21] Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (upholding a request to search made during a traffic stop). See also United States v. Wellman, 185 F.3d 651, 656 (6th Cir.1999) (traffic stop not unconstitutionally extended by obtaining consent to search motor home while officer was waiting for information on defendant's driver's license and vehicle registration); accord United States v. Brigham, supra at 509; People v. Bell, 43 Cal. App. 4th 754, 765-768, 51 Cal. Rptr. 2d 115 (1996); State v. Akuba, supra at 417-418; State v. Watkins, 73 S.W.3d 881, 883 (Mo.App.2002); State v. Hunter, 107 N.C.App. 402, 407, 420 S.E.2d 700 (1992), overruled on other grounds by State v. Pipkins, 337 N.C. 431, 446 S.E.2d 360 (1994); State v. Hyland, 840 S.W.2d 219, 221 (Mo.1992); State v. Acinelli, 191 Ariz. 66, 69(2), 952 P.2d 304 (1997).
[22] (Emphasis supplied.) State v. Gaulrapp, supra at 608, 558 N.W.2d 696.
[23] (Punctuation omitted.) Henderson v. State, 250 Ga.App. 278, 279, 551 S.E.2d 400 (2001) (physical precedent only), citing Kan v. State, supra at 171, 404 S.E.2d 281; Pupo v. State, 187 Ga.App. 765, 766(2), 371 S.E.2d 219 (1988). Accord State v. Benjamin, 266 Ga.App. 205, 206(2), 596 S.E.2d 623 (2004); Anderson v. State, 265 Ga.App. 146, 150(2), 592 S.E.2d 910 (2004); Navicky v. State, 245 Ga.App. 284, 285(2), 537 S.E.2d 740 (2000); Gamble v. State, 223 Ga.App. 653, 656(3), 478 S.E.2d 455 (1996).
[24] United States v. Holt, 264 F.3d 1215 (10th Cir.2001).
[25] United States v. Oliver, 363 F.3d 1061 (10th Cir.2004).
[26] Id. at 1067.
[27] United States v. Walker, 933 F.2d 812 (10th Cir.1991).
[28] Id. at 816, n. 2; see United States v. Oliver, supra at 1066.
[29] Contrary to the dissent's urging, the Supreme Court of Georgia case of Daniel v. State, 277 Ga. 840, 597 S.E.2d 116 (2004), clearly held that "[o]nce the underlying basis for the initial traffic stop has concluded," lengthening a detention must be either consensual or supported by articulable suspicion. (Emphasis supplied.) Id. at 841, 597 S.E.2d 116. Daniel did not address questions asked during the course of a valid stop that did not lengthen the detention. Accordingly, the post-stop "consensual encounter" analysis employed by Daniel is not applicable here, in the middle of an ongoing traffic stop which is nonconsensual from the inception. Instead, during an ongoing traffic detention, "the issue regarding unrelated questions concerns not the content of the questions, but their impact on the duration of the stop." United States v. Purcell, supra at 1279-1280. Moreover, Daniel's emphasis on the "lengthening of the detention" appears to dispel the dissent's position that a question, in itself, can constitute a Fourth Amendment violation.
[30] See Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004) (approving a roadblock/checkpoint for the primary purpose of general law enforcement because "Law enforcement officer[s] may . . . request any person to furnish information or otherwise cooperate in the ... prevention of crime.") (punctuation omitted).
[31] In that regard, the further inapplicability of Daniel v. State, supra, to the dissent's analysis is illustrated by the dissent's decidedly circular reasoning: the dissent quotes Daniel:"`[e]ven where the driver and vehicle occupants have been illegally detained, the driver or owner of the vehicle may nonetheless voluntarily consent to a search of the vehicle.' Daniel at 846 [597 S.E.2d 116]." But the dissent holds, "even if Bibbins voluntarily agreed to the vehicle search, ... the illegal detention tainted the consent." How can it be that under Daniel, voluntary consent can cure an illegal detention, but under the dissent, an illegal detention will taint voluntary consent? The source of the conflict is the dissent's belief that the request to search for drugs creates the illegal detention because it is unrelated to the traffic violation that provoked the stop. When the request, itself, creates the illegality, any consent will always be the "product" of the illegal request and thus tainted, making Daniel impossible to apply rationally.
[32] (Citation and punctuation omitted.) Ohio v. Robinette, supra at 39, 117 S. Ct. 417.
[33] United States v. Sharpe, supra at 686-687, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985).
[34] Id. at 686, 105 S. Ct. 1568.
[35] State v. Gibbons, supra at 860-863(2), 547 S.E.2d 679.
[36] United States v. Sharpe, supra at 687-688, 105 S. Ct. 1568 (defendants must present evidence that the officers were dilatory in their investigation). See also Davis v. State, 266 Ga. 212, 465 S.E.2d 438 (1996); Watts v. State, 274 Ga. 373, 375-376(2), 552 S.E.2d 823 (2001). Both Davis and Watts contain a legal discussion of the shifting burdens involved in OCGA § 17-5-30(b), which governs all motions to suppress in Georgia. Thus, while the facts of Davis and Watts may have involved a search warrant, the legal, "burden shifting" discussion contained therein applies to this case and all other cases involving motions to suppress.
[37] See Daniel v. State, supra at 846, 597 S.E.2d 116.
[38] Schneckloth v. Bustamonte, supra at 247, 93 S. Ct. 2041.
[39] Id. at 226, 93 S. Ct. 2041; Hunter v. State, 190 Ga.App. 52, 53(1), 378 S.E.2d 338 (1989).
[40] Schneckloth v. Bustamonte, supra at 226-227, 93 S. Ct. 2041.
[41] Id. at 229, 93 S. Ct. 2041.
[42] OCGA §§ 5-6-34(b); 5-7-1(a)(4).
[43] See, e.g., State v. Habib, 260 Ga.App. 229, 581 S.E.2d 576 (2003); State v. Gibbons, 248 Ga.App. 859, 863(2), 547 S.E.2d 679 (2001); Smith v. State, 216 Ga.App. 453, 455(2), 454 S.E.2d 635 (1995). In his dissenting opinion in Gibbons, the author of the current majority expressly stated that Smith, supra, should be overruled. See Gibbons, supra at 869, 547 S.E.2d 679 (Eldridge, J., dissenting). Although the current majority opinion does not expressly overrule Smith, it achieves this result.
[44] 277 Ga. 840, 597 S.E.2d 116 (2004).
[45] (Punctuation omitted.) Id. at 841(1), 597 S.E.2d 116.
[46] Id.
[47] See Buck v. State, 239 Ga.App. 828, 831, 522 S.E.2d 252 (1999) (when an individual consents to a search during a lawful detention, "the only question remaining is whether [the] consent to search was valid").
[48] See Daniel, supra.
[49] (Citations and punctuation omitted; emphasis supplied.) Id. See also Gonzales v. State, 255 Ga.App. 149, 150, 564 S.E.2d 552 (2002) ("Once a routine traffic stop has ended, an officer must have either valid consent or reasonable suspicion of criminal conduct before conducting additional questioning and searching a vehicle.").
[50] See Daniel, supra at 846(3), 597 S.E.2d 116; Buck, supra.
[51] (Citation omitted.) Daniel, supra at 846-847, 597 S.E.2d 116.
[52] 248 Ga.App. at 863(2), 547 S.E.2d 679.
[53] See, e.g., Habib, supra at 230-231(1), 581 S.E.2d 576 (officer impermissibly expanded scope of traffic stop for seat belt violation when he launched into a drug investigation and requested consent to search car without reasonable articulable suspicion); Almond v. State, 242 Ga.App. 650, 652, 530 S.E.2d 750 (2000) ("If during an investigatory stop the officer, without an articulable suspicion, proceeds to ask questions unrelated to the reason for the stop, the officer goes beyond the permissible scope of the investigation, and the further detention of the car driver exceeds that permitted by Terry v. Ohio [, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] and its progeny." (footnote omitted)); Migliore v. State of Ga., 240 Ga.App. 783, 784, 525 S.E.2d 166 (1999) ("`[A]n officer who questions and detains a suspect for other reasons exceeds the scope of permissible investigation unless he has "reasonable suspicion" of other criminal activity.'"); State v. Blair, 239 Ga.App. 340, 341, 521 S.E.2d 380 (1999) (same); Smith, supra at 455(2), 454 S.E.2d 635 (officer exceeded permissible scope of DUI traffic stop when he "probed into [the defendant's] possession of contraband, specifically narcotics," and requested permission to search the defendant's vehicle).
[54] Supra.
[55] Habib, supra at 230, 581 S.E.2d 576.
[56] See id. at 230-231, 581 S.E.2d 576.
[57] Supra.
[58] Smith, supra at 455, 454 S.E.2d 635.
[59] Id.
[60] See id.
[61] See id.
[62] See, e.g., Habib, supra; Gibbons, supra at 863-864, 547 S.E.2d 679; Migliore, supra; Smith, supra.
[63] See footnote 43, supra.
[64] (Punctuation omitted.) Evans v. State, 262 Ga.App. 712, 715(1)(a), 586 S.E.2d 400 (2003). See also Henderson v. State, 250 Ga.App. 278, 280, 551 S.E.2d 400 (2001) (physical precedent only).
[65] See Daniel, supra at 841, 597 S.E.2d 116 (citing Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality opinion)).
[66] The majority cites several cases for the proposition that a drug-related inquiry during a traffic stop "is reasonably related to legitimate highway public safety concerns `in light of the problem of interstate drug traffic.'" See State v. Hall, 235 Ga.App. 412, 415, 509 S.E.2d 701 (1998); Kan v. State, 199 Ga.App. 170, 171, 404 S.E.2d 281 (1991); O'Keefe v. State, 189 Ga.App. 519, 520, 376 S.E.2d 406 (1988). I find nothing in the cited cases, however, that draws a link between a drug investigation and traffic safety. Similarly, although the majority asserts that the United States Supreme Court has "recognized the authority of an officer to ask a drug-related question during the course of a traffic stop," the cases it relies upon do not approve or even address the legality of such questioning. See Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996); Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979).
[67] Compare Evans, supra at 715-716, 586 S.E.2d 400 (evidence supported trial court's conclusion that drug-related questioning and request for consent to search car did not unreasonably prolong traffic stop where there was no undue delay between initial stop and issuance of traffic ticket and record showed that officer requested consent to search while writing ticket); Henderson, supra at 281, 551 S.E.2d 400 (police request for consent to search car for weapons and drugs did not impermissibly expand traffic stop where officers asked for consent while writing traffic ticket).
[68] See Gibbons, supra at 868, 547 S.E.2d 679 (Ruffin, J., concurring specially) (officer cannot delay issuance of a traffic citation in order to conduct fishing expedition for evidence of other criminal activity); State v. Johnson, 209 Ga.App. 84, 86, 432 S.E.2d 580 (1993) ("`In assessing the effect of the length of the detention, it must be determined whether the police diligently pursued their investigation.'").
[69] See Daniel, supra at 841, 597 S.E.2d 116.
[70] Evans, supra at 716, 586 S.E.2d 400.
[71] See State v. Taylor, 226 Ga.App. 690, 692, 487 S.E.2d 454 (1997). I cannot countenance the majority's effort to shift the evidentiary burden here to Bibbins. The only cases cited to support its proposition that Bibbins bore the "evidentiary burden" of showing a subsequent illegality relate to searches pursuant to a search warrant. In Davis v. State, 266 Ga. 12-213, 465 S.E.2d 438 (1996), and State v. Slaughter, 252 Ga. 435, 439, 315 S.E.2d 865 (1984), the Supreme Court found that, when a defendant challenges a search warrant on a basis other than the three statutory grounds listed in OCGA § 17-5-30(a)(2), the State meets its evidentiary burden by producing the warrant and its supporting affidavit. The evidentiary burden then shifts to the defendant to show that the warrant was invalid. See Davis, supra; Slaughter, supra. Nothing in Davis or Slaughter, however, supports such burden shifting in a case that does not involve a search warrant. In fact, the Slaughter Court noted that "[b]ecause the burden is on those officers who conduct a search without a warrant to show that the search was conducted pursuant to an exception to the Fourth Amendment [Cit.] warrant requirement, it can be said that a search without a warrant is presumed to be invalid and the burden is on the state to show that the warrantless search was valid." Slaughter, supra at 436, 315 S.E.2d 865. Searches conducted pursuant to a warrant, on the other hand, are presumed valid. Id. at 437, 315 S.E.2d 865.
[72] See Habib, supra; Gibbons, supra at 863-864, 547 S.E.2d 679; Migliore, supra; Smith, supra.
[73] See Daniel, supra at 842(2), 597 S.E.2d 116.
[74] (Punctuation omitted.) Id.
[75] See id.
[76] See id.
[77] Id.
[78] Id. at 843(2)(a), 597 S.E.2d 116.
[79] See Faulkner v. State, 256 Ga.App. 129, 130, 567 S.E.2d 754 (2002). See also Daniel, supra at 844, 597 S.E.2d 116 (citing Faulkner).
[80] See id. at 841, 597 S.E.2d 116. As noted by the majority, the Supreme Court determined in Daniel that, under the facts of that case, the officer obtained consent to search after the valid traffic stop had concluded and the post-stop contact had evolved into a consensual encounter. See id. at 849(5), 597 S.E.2d 116. Citing this distinction, the majority argues that the Daniel analysis does not apply here. I disagree. Although the factual circumstances in Daniel produced a different outcome, the Supreme Court's analytical framework is certainly applicable in this case. And under that framework, Bibbins allegedly consented to the search at a time when he was illegally detained.
[81] Id. at 846, 597 S.E.2d 116.
[82] See id.
[83] (Citations omitted.) Id. at 846-847, 597 S.E.2d 116.
[84] See Faulkner, supra at 131, 567 S.E.2d 754; Gonzales, supra at 150-151, 564 S.E.2d 552.
[85] According to the majority, my dissent hinges on the mistaken conclusion that Bauch's search request itself turned an otherwise valid traffic stop into an illegal detention. This is an oversimplification of the issue. My point is not simply that the request rendered the stop illegal, but that it impermissibly exceeded the limits of the initial, valid traffic stop, raising Fourth Amendment concerns.
[86] See United States v. Ramos, 42 F.3d 1160 (8th Cir.1994) (officer may only ask questions that are not related to the traffic stop if he has additional suspicion that would allow him to expand the scope of inquiry); United States v. Murillo, 255 F.3d 1169, 1174 (9th Cir.2001) (holding that questions posed by officers require either some relation to the basis for the custody or an independent source of reasonable suspicion); United States v. Holt, 264 F.3d 1215, 1227 (10th Cir.2001) (en banc) (both the length and scope of a traffic stop are relevant factors in deciding whether the stop comports with the Fourth Amendment). Compare United States v. Oliver, 363 F.3d 1061 (10th Cir.2004) (panel decision issued subsequent to Holt, supra.), and United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir.2000) (only an en banc panel may overrule a prior panel's decision).
[87] See, e.g., United States v. Shabazz, 993 F.2d 431, 437 (5th Cir.1993) (approving unrelated questions about travel plans where officer was waiting for results of computer check when he asked the questions); United States v. Palomino, 100 F.3d 446, 449-450 (6th Cir.1996) (suggesting that no constitutional violation occurred because drug questioning did not extend stop longer than was necessary for the original purpose of the stop); United States v. Childs, 277 F.3d 947 (7th Cir.2002) (officer's drug-related question did not turn reasonable detention into unreasonable detention where the question was asked while the driver was being processed and passenger could have protected himself by declining to answer).
[88] Arizonans for Official English v. Arizona, 520 U.S. 43, 58, 117 S. Ct. 1055, 137 L. Ed. 2d 170 (1997) (supremacy clause does not require state courts to yield to a federal appellate court's interpretation on a question of federal law); Macon-Bibb County Hosp. Auth. v. Nat. Treasury Employees Union, 265 Ga. 557, 558, 458 S.E.2d 95 (1995) (decisions of federal courts of appeal are not binding on this Court, but their reasoning is persuasive).
[89] In support of its position, the majority cites United States Supreme Court cases that involve fact patterns that include drug-related questions during traffic stops. But none of these cases addresses directly the question of the scope of permissible questioning. See Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996); Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). As stated by the Tenth Circuit Court, "[a]lthough the [United States Supreme] Court has not directly addressed the issue we now face, it has, in applying the Terry analysis, routinely employed language indicating there are limitations on both the length of the detention and the manner in which it is carried out (what I refer to here as the `scope' or `breadth' of the detention)." United States v. Holt, 264 F.3d at 1229.
[90] Compare Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004) (upholding traffic stop established for the specific purpose of obtaining information about a recent fatal hit-and-run accident; roadblock was not established for drug interdiction). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323330/ | 152 Ga. App. 641 (1979)
263 S.E.2d 482
ITT INDUSTRIAL CREDIT COMPANY
v.
BURNHAM.
58516.
Court of Appeals of Georgia.
Argued September 6, 1979.
Decided November 16, 1979.
Rehearing Denied December 3, 1979.
Lewis N. Jones, for appellant.
John L. Watson, Jr., for appellee.
SHULMAN, Judge.
Defendant's motion to dismiss plaintiff's appeal was granted on the grounds that a trial transcript had not been filed within the 20-day limit of Code Ann. § 6-808. We affirm.
1. It is undisputed that because plaintiff failed to timely pay court costs, his trial transcript was filed three days late. When a transcript is not timely filed, it is within the authority of the trial court to dismiss an appeal for *642 delay (Code Ann. § 6-809 (b)) if the court finds that such delay was both unreasonable and inexcusable. ITT Indus. Credit Co. v. Carpet Factory, Inc., 140 Ga. App. 204 (230 SE2d 354).
A. In the case at bar the trial court determined as a matter of fact that the reasons for delay proffered by counsel did not excuse his late payment of court costs. "`Since ... the cause for delay in the processing of the appeal is a fact issue for determination in the trial court' [Cit.]" (Gilman Paper Co. v. James, 235 Ga. 348, 349 (219 SE2d 447)), we refuse to disturb the court's finding that appellant's delay was inexcusable.
B. Nor will we upset the court's determination that the delay was unreasonable. Again, this finding is within the discretion of the trial court. Young v. Climatrol Southeast Dist. Corp., 237 Ga. 53, 55 (226 SE2d 737). See also Pickett v. Paine, 139 Ga. App. 508 (229 SE2d 90), holding that a one-day delay was unreasonable.
Appellant urges that since a two-day delay in Young was held to be reasonable, as a matter of law, that a three-day delay should similarly be considered reasonable.
Contrary to appellant's contentions, Young does not stand for the proposition that a two-day delay is not unreasonable as a matter of law. Rather, the holding in Young (reversing the trial court's dismissal of an appeal) was based on the Supreme Court's determination that the trial court had failed to exercise its discretion to determine whether or not the delay had been reasonable. Since before the trial court is authorized to dismiss an appeal under Code Ann. § 6-809 (b) the court must first determine that the delay was both unreasonable and inexcusable, the Supreme Court reversed the trial court for its failure to make the requisite findings of fact.
Unlike the trial court in Young, the court, in the case before us, exercised its discretion in determining that plaintiff's delay in paying costs was both inexcusable and unreasonable. This being so, we refuse to disturb the court's finding on appeal.
2. Appellant urges that the court's determination that there was no evidence to show that appellant was a nonresident corporation was erroneous and mandates *643 reversal. Apparently, it is appellant's contention that appellant's residency influenced the court's finding that late payment was inexcusable. We find no merit in this contention.
Although there is evidence that appellant had out-of-state corporate offices, there is no evidence in the record to support appellant's contention that appellant was not a resident of Georgia.
Judgment affirmed. Deen, C. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323348/ | 263 S.E.2d 624 (1980)
Malcolm M. LOWDER, Mark T. Lowder and Dean A. Lowder
v.
ALL STAR MILLS, INC., Lowder Farms, Inc., Carolina Feed Mills, Inc., All Star Foods, Inc., All Star Hatcheries, Inc., All Star Industries, Inc., Tanglewood Farms, Inc., Consolidated Industries, Inc., Airglide, Inc., and W. Horace Lowder.
No. 7920SC387.
Court of Appeals of North Carolina.
March 4, 1980.
*626 Moore & Van Allen by John T. Allred and Jeffrey J. Davis, Charlotte, for plaintiffs and receivers.
DeLaney, Millette, DeArmon & McKnight by Ernest S. DeLaney, Jr., Charlotte, for defendant-appellant.
ERWIN, Judge.
The foremost question presented is whether the trial court had jurisdiction to adjudge defendant in contempt on 21 February 1979.
G.S. 5A-11 provides in pertinent part:
"§ 5A-11. Criminal contempt.(a) Except as provided in subsection (b), each of the following is criminal contempt:
* * * * * *
(3) Willful disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution."
While G.S. 5A-21(a) provides:
"§ 5A-21. Civil contempt; imprisonment to compel compliance.(a) Failure to comply with an order of a court is a continuing civil contempt as long as:
(1) The order remains in force;
(2) The purpose of the order may still be served by compliance with the order; and
(3) The person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable him to comply with the order."
As recognized in G.S. 5A-12(d) and G.S. 5A-21(c), a person may be found to be in both criminal and civil contempt, although only a single act was committed. Thus, defendant's acts, i. e., his failure to comply with the court's order to refrain from interfering *627 with the receivers as they carried out their duties and his failure to furnish copies of his income tax returns could possibly be acts of civil as well as criminal contempt.
Two means are available to institute proceedings for civil contempt. One means is the issuance of an order of a judicial official directing the alleged contemnor to appear at a specified reasonable time and show cause why he should not be held in civil contempt, and the other is issuance of notice by a judicial official that the alleged contemnor will be held in contempt unless he appears at a specified reasonable time and shows cause why he should not be held in contempt. G.S. 5A-23. In either case, G.S. 5A-23 provides that "[t]he order or notice may be issued on the motion and sworn statement or affidavit of one with an interest in enforcing the order, including a judge, and a finding by the judicial official of probable cause to believe there is civil contempt." Although the language used in the statute seems to be permissive in nature, prior case law under the antecedent statute established that in cases of civil contempt, previously denominated as cases as for contempt, a petition, affidavit, or other proper verification charging a willful violation of an order of court was necessary in order for an order to show cause to issue. Rose's Stores v. Tarrytown Center, 270 N.C. 206, 154 S.E.2d 313 (1967); In re Deaton, 105 N.C. 59, 11 S.E. 244 (1890). We do not believe the Legislature has altered this requirement. See G.S. 5A-23; Billings, Contempt, Order in the Courtroom, Mistrials, 14 Wake Forest L.R. 909, 917 (1978). In the instant case, no petition, affidavit, or other proper verification served as a basis for the issuance of the order to show cause. To the contrary, the order was issued on the basis of the receiver's unsworn testimony given ex parte to the court. Thus, the order to show cause could not lawfully have been one based on civil contempt.
G.S. 5A-13 provides:
"§ 5A-13. Direct and indirect criminal contempt; proceedings required.(a) Criminal contempt is direct criminal contempt when the act:
(1) Is committed within the sight or hearing of a presiding judicial official; and
(2) Is committed in, or in immediate proximity to, the room where proceedings are being held before the court; and
(3) Is likely to interrupt or interfere with matters then before the court."
Under prior statutory case law, failure to comply with a prior court order would amount to an act of indirect contempt when the act was committed outside the presence of the court, at a distance from it, even though the act was one which tended to degrade, interrupt, prevent, or impede the administration of justice as here. G.S. 5-7 (since repealed); Blue Jeans Corp. v. Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969); Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822 (1954); Ingle v. Ingle, 18 N.C. App. 455, 197 S.E.2d 61 (1973). This was so, even though the act fell within the confines of G.S. 5-1(4) (since repealed). Accordingly, we hold that defendant's acts were not acts of direct contempt within the meaning of G.S. 5A-13(a)(3).
G.S. 5A-13(b) provides that "[a]ny criminal contempt other than direct criminal contempt is indirect criminal contempt and is punishable only after proceedings in accordance with the procedure required by G.S. 5A-15." G.S. 5A-15(a) provides that in cases of indirect contempt, a judicial officer "may proceed by an order directing the person to appear before a judge at a reasonable time specified in the order and show cause why he should not be held in contempt of court." The language of G.S. 5A-15(a) is substantially the same as that contained in its predecessor statute, G.S. 5-7. Where an order to show cause was based on an act of indirect contempt, the filing of a petition, an affidavit, or other proper verification was not required as a prerequisite to issuance of the order under G.S. 5-7, see In re Deaton, 105 N.C. 59, 11 S.E. 244 (1890), although they may be a proper basis for issuance of the show cause order. See Rose's Stores v. Tarrytown Center, *628 supra. We do not believe that G.S. 5A-15(a) imposes such a limitation, and, thus, we hold that the trial court had jurisdiction to determine whether or not defendant had violated its 9 February order on 21 February 1979. Nevertheless, we hold that the trial court erred in holding defendant in contempt.
The trial court's basis for holding defendant in contempt was twofold: (1) an affidavit had been submitted by John M. Bahner, Jr., relating defendant's alleged contemptuous acts; and (2) defendant's refusal in open court to furnish complete copies of his income tax returns and his refusal to furnish a list, schedule, of his personal assets. The affiant did not testify at the hearing and was not present, nor did defendant testify at the hearing.
In Cotton Mills v. Local 578, 251 N.C. 218, 111 S.E.2d 457 (1959), cert. denied, 362 U.S. 941, 80 S. Ct. 806, 4 L. Ed. 2d 770 (1960), our Supreme Court held that a person denying his asserted violation of a restraining order in contempt proceedings has the right under the provisions of Article I, Section 17 (now enacted as Article I, Section 19) of the Constitution of North Carolina, synonymous with due process of law under the United States Constitution, to confront and cross-examine witnesses by whose testimony the asserted violation is to be established, but the right was waivable. Here, no waiver has occurred. Defendant, through his counsel, adamantly objected to the use of the affidavit as a basis for holding him in contempt. By doing so, he preserved his right to confront and cross-examine the witnesses against him, and inasmuch as the contempt adjudication was based on the affidavit, it was invalid.
Under the Fifth Amendment of the United States Constitution, an individual may not be compelled in any criminal case to be a witness against himself. The privilege applies in any proceeding, civil or criminal, where the evidence supplied may serve as a link in a chain leading to a criminal conviction. Maness v. Meyers, 419 U.S. 449, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975), accord, Allred v. Graves, 261 N.C. 31, 134 S.E.2d 186 (1964). Defendant has timely asserted the federal privilege, and, thus, we must determine its applicability.
The leading federal case determining whether or not an individual may be compelled to produce his federal income tax returns without violating his privilege to be free from self-incrimination is Fisher v. United States, 425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). In Fisher, the Supreme Court was called upon to decide whether enforcement of summonses served by the Internal Revenue Service on taxpayers' attorneys in investigations of possible civil or criminal liability under the federal income tax laws, which directed the attorneys to produce relevant documents of the taxpayers' accountants that had been given to the attorneys by the taxpayers for the purpose of obtaining legal advice in the tax investigation, violated the taxpayers' Fifth Amendment privilege against self-incrimination. In order to decide the propriety of the summonses, as they related to the assertion of the attorney-client privilege, the Court stated that it was necessary to decide the question now before us, but refused to do so on the grounds that the papers were not "private" ones; i. e., they were not prepared by the taxpayer. Nevertheless, the Court stated:
"The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena. Curcio v. United States, 354 U.S. 118, 125, 77 S. Ct. 1145, 1150, 1 L. Ed. 2d 1225, 1231 (1957). The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments of the taxpayer are both `testimonial' and `incriminating' for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their *629 resolution may instead depend on the facts and circumstances of particular cases or classes thereof."
425 U.S. at 410, 96 S.Ct. at 1581, 48 L.Ed.2d at 56. What Fisher reaffirms is that compulsion, incrimination, and testimonial communication must all exist before a claimant can invoke the protection of the Fifth Amendment privilege. That the filing of an income tax return is testimonial was established in Garner v. United States, 424 U.S. 648, 656, 96 S. Ct. 1178, 1183, 47 L. Ed. 2d 370, 378 (1976), wherein the Court stated: "The information revealed in the preparation and filing of an income tax return is, for purposes of Fifth Amendment analysis, the testimony of a `witness,' as that term is used herein." There can be no serious doubt that an order to produce is compulsory. Fisher v. United States, supra; see also Rey v. Means, In & For Tulsa Cty., 575 P.2d 116 (Okl.1978). Thus, the essential inquiry becomes whether the information sought is incriminating. Here, defendant has been accused of diverting, converting, and misusing corporate assets. The diversion and conversion are surely susceptible to criminal punishment. Submission of the tax returns would surely furnish a link on the chain leading down the road to criminal prosecution. The privilege against self-incrimination does not protect defendant from prosecution, but it does protect him from being a witness against himself. Inasmuch as Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886), protects against such disclosures, it is still the law of the land, and defendant could not be held in contempt for failure to furnish copies of his federal and state income tax returns. Furthermore, he could not be required to write out a list of his personal assets, see Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968), and the contempt citation could not be upheld on that ground. Counsel for the plaintiffs and the receivers contend that defendant has waived the privilege against self-incrimination pointing to Garner v. United States, supra. We hold that he has not. Garner did not present a situation where defendant was forced to produce the disputed tax returns. In Garner, the government already had the tax return.
We need not decide the propriety of the 28 February 1979 order, since in light of our foregoing text, it could not stand. We are compelled, however, to address defendant's contentions that the trial court erred in appointing the receivers, in not considering his motion to alter and amend the findings of fact, and conclusions of law in the 9 February order, and in not hearing his motion to vacate.
In denying to hear defendant's motions at the show cause hearing, the trial court stated:
"COURT: We can't conduct a very full hearing on those things, Mr. DeLaney, I have not got copies of those, I don't have the files here. They were not scheduled for a hearing at this time.
MR. DELANEY: Judge, I'm in this position, I knowI feel that these are matters which should be reviewed."
In refusing to hear these matters, the trial court did not commit error. The sole question before him to be adjudicated at a hearing of an order to show cause why defendant should not be held in contempt for violation of the court's decree was whether the decree had been violated, and the court correctly disregarded hearing anything else. Rose's Stores v. Tarrytown Center, supra; Williamson v. High Point, 214 N.C. 693, 200 S.E. 388 (1939). Since defendant's motions are still pending, they may be scheduled for hearing on remand. Other questions presented need not be decided in light of our foregoing text.
The orders adjudging defendant in contempt are
Reversed.
CLARK and ARNOLD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2756408/ | [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Equity Dublin Assocs. v. Testa, Slip Opinion No. 2014-Ohio-5243.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-5243
EQUITY DUBLIN ASSOCIATES ET AL., APPELLEES, v. TESTA, TAX COMMR.,
ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Equity Dublin Assocs. v. Testa,
Slip Opinion No. 2014-Ohio-5243.]
Real property taxation—Exemptions—Building leased to community college not
exempt—R.C. 5709.07(A)(4) and 3354.15.
(No. 2014-0168—Submitted September 10, 2014—Decided December 2, 2014.)
APPEAL from the Board of Tax Appeals, Nos. 2011-Q-1792 and 2011-Q-1795.
____________________
O’DONNELL, J.
{¶ 1} This appeal addresses a claim of tax exemption for two separate
buildings located on two separate parcels of real property, one of which is situated
in the Dublin City School District, the other in the Columbus City School District.
The landlords seek the exemption on the basis that Columbus State Community
College is a tenant in each of the buildings and provides educational services to its
students at each location.
SUPREME COURT OF OHIO
{¶ 2} The appellants are the tax commissioner and the boards of
education of the two school districts (collectively, the “BOE”). The
commissioner and the BOE seek reversal of the partial grant of exemption by the
Board of Tax Appeals (“BTA”). The BTA predicated its decision on the public-
college exemption in R.C. 5709.07(A)(4) as construed in Cleveland State Univ. v.
Perk, 26 Ohio St. 2d 1, 268 N.E.2d 577 (1971). Because we conclude that Perk’s
holding does not apply to the facts in this case, we reverse the decision of the
BTA.
Facts and Procedural History
{¶ 3} This case involves two different exemption applications, two
different parcels of real property in Franklin County, and two different property
owners, but the exemption claims presented share a common issue for our review.
The buildings that are located in the Dublin school district were owned by Equity
Dublin Associates, and the building in the Columbus school district was owned
by SHSCC #2 Limited Partnership. We will refer to the owners collectively as
“Equity Dublin.”
{¶ 4} Equity Dublin filed the applications for exemption on March 16,
2005, seeking exemption for tax year 2005 and remission for the preceding three
years. Both applications predicate the claim for exemption on R.C. 3354.15
(releasing a “community college district” from the requirement to pay taxes or
assessments on real or personal property) and 3358.10 (applying R.C. 3354.15 to
“state community college districts”). Each application recites that the property
was leased to Columbus State Community College.
{¶ 5} The Dublin application sought to exempt 13,545 square feet of a
116,000-square-foot office complex, stating that the annual enrollment of students
at the site was 1,490 and reciting that “[a] full array of courses are [sic] offered
and students in these locations can earn an Associate of Arts and Sciences Degree
at these sites.” The Columbus application sought to exempt 12,000 square feet of
2
January Term, 2014
office space in Groveport, leased to and occupied by Columbus State to educate
some 490 enrolled students.
{¶ 6} Excerpts of lease instruments were attached to both applications,
showing Columbus State as lessee. The lease of the Groveport property shows
Columbus State’s contractual obligation to pay the property taxes. The lease for
the Dublin property differs, presumably because there Columbus State is renting
part but not all of the premises. In the Dublin lease, the contract obligates
Columbus State to pay taxes with respect to its personal property, but the real
property tax is built into the rent; indeed, the contract contains a rent-adjustment
clause, which, in case of a real-property tax increase, would increase the rent
amount based on Columbus State’s pro rata share of the tax increase.
{¶ 7} On May 23, 2011, the tax commissioner issued final
determinations on the two applications. Regarding R.C. 3354.15, the tax
commissioner’s determinations reject the claim of exemption based on the
language of the statute and Athens Cty. Auditor v. Zaino, 106 Ohio St. 3d 293,
2005-Ohio-4986, 834 N.E.2d 804. Because the owner and taxpayer was a for-
profit landlord, and because real-property taxes are imposed on the owner rather
than the lessee, the tax commissioner ruled that the exemption was not available
pursuant to R.C. 3354.15.
{¶ 8} Next, the commissioner proceeded to determine possible exempt
status pursuant to R.C. 5709.07(A)(4), which exempts “[p]ublic colleges and
academies and all buildings connected with them” and additionally exempts “all
lands connected with public institutions of learning, not used with a view to
profit.” Relying on R.C. 5709.07(B), which states, “This section shall not extend
to leasehold estates or real property held under the authority of a college or
university of learning in this state,” the commissioner concluded that “the statute
provides exemption to college buildings and land, not leased or otherwise used for
profit.” According to the commissioner, this exemption did not extend to the
3
SUPREME COURT OF OHIO
properties at issue, because of the for-profit nature of the leases. In reaching that
conclusion, the commissioner distinguished two cases: Bexley Village, Ltd. v.
Limbach, 68 Ohio App. 3d 306, 588 N.E.2d 246 (1990), and Perk, 26 Ohio St. 2d
1, 268 N.E.2d 577.
{¶ 9} Finally, the tax commissioner cited former R.C. 5709.07(A)(1),
which exempted “[p]ublic schoolhouses, the books and furniture in them, and the
ground attached to them necessary for the proper occupancy, use, and enjoyment
of the schoolhouses, and not leased or otherwise used with a view to profit.”
Am.S.B. No. 171, 142 Ohio Laws, Part I, 147. Here the commissioner regarded
the court’s decision in Anderson/Maltbie Partnership v. Levin, 127 Ohio St. 3d
178, 2010-Ohio-4904, 937 N.E.2d 547, as dispositive, and concluded that because
“the applicant is a for-profit commercial property management company that
leases the subject property to a school under a commercial lease,” the property “is
not entitled to exemption.”
{¶ 10} Equity Dublin appealed to the BTA.1 The BTA consolidated the
cases and held a hearing at which the parties elected not to present additional
evidence. In its decision, the BTA held that R.C. 3354.15 did not apply, because,
as explained in Athens Cty. Auditor v. Wilkins, 106 Ohio St. 3d 293, 2005-Ohio-
4986, 834 N.E.2d 804, the community college is not being required by law to pay
property tax when it is not the owner of the property, given that the law imposes
the obligation to pay on the owner alone. BTA Nos. 2011-Q-1792 and 2011-Q-
1795.
{¶ 11} As for the public-college exemption at R.C. 5709.07(A)(4), the
BTA held that this court’s decision in Perk, 26 Ohio St. 2d 1, 268 N.E.2d 577,
along with the Tenth District decision in Bexley Village, 68 Ohio App. 3d 306, 588
N.E.2d 246, permitted exemptions when the public college leased the property
1
Columbus State’s board of trustees joined Equity Dublin in the notices of appeal, but the BTA
granted the motions of the BOE and the tax commissioner to dismiss the trustees from the appeal.
4
January Term, 2014
from a landlord. The BTA found it particularly important that the modular
buildings at issue in Perk were owned by a for-profit private company and leased
by Cleveland State University. Yet although the leased building space was held
to be exempt, the BTA also held that the parking lot in the Groveport case was not
exempt under the authority of Bexley Village. Thus, the BTA decision was a split:
the buildings or portions of buildings leased and occupied by Columbus State
were exempt, but the parking lots were not.
{¶ 12} The tax commissioner moved the BTA for reconsideration. The
primary ground of the motion was that consideration of the exemption claim
under R.C. 5709.07(A)(4) was barred because the existence of a “more specific”
exemption referring to community colleges at R.C. 3354.15 meant that “R.C.
5709.07(A)(4) cannot provide the appellant commercial property owners/lessors
with a property-tax exemption.” The “controlling holding” for this proposition
was Athens Cty. Auditor, in which the court stated that “R.C. 3357.14 is the only
appropriate statutory provision under which to consider [the for-profit landlord’s]
application for exemption.” 106 Ohio St. 3d 293, 2005-Ohio-4986, 834 N.E.2d
804, ¶ 13. As a second ground for reconsideration, the commissioner advanced
R.C. 5709.07(B)’s statement that the section does not extend exemption to
“leasehold estates.”
{¶ 13} On January 28, 2014, the BTA issued a decision denying the
motion for reconsideration. First, the BTA rejected the primary ground for
reconsideration, noting that R.C. 3354.15 “is not applicable at all” because the
properties “are owned by private, for-profit corporations.” Second, the BTA
rejected the second ground for reconsideration by relying on Perk, 26 Ohio St. 2d
1, 268 N.E.2d 577, in which, as in the present case, buildings “connected” with
Cleveland State were exempted even though Cleveland State leased them from a
for-profit company.
5
SUPREME COURT OF OHIO
{¶ 14} The tax commissioner and the BOE have appealed the partial grant
of exemption, and for the following reasons, we reverse.
Arguments of the Parties
{¶ 15} Combined, the BOE and the tax commissioner advance ten
propositions of law, but these can be consolidated into to three main arguments.
First, the BOE and the commissioner argue that exemption is not justified under
R.C. 3354.15. They advance this argument even though the BTA rejected the
claim of exemption on that ground below, and even though no cross-appeal was
filed by Equity Dublin. In response, Equity Dublin takes up the invitation to
address the claim of exemption under R.C. 3354.15, contending that the statute
furnishes an alternative ground for affirming the decision below.
{¶ 16} Second, the BOE and the commissioner contend that the existence
of an exemption specifically aimed at community colleges at R.C. 3354.15
precludes the possibility of exemption under the general public-college exemption
set forth at R.C. 5709.07(A)(4). This argument rests on a pronouncement in
Athens Cty. Auditor, 106 Ohio St. 3d 293, 2005-Ohio-4986, 834 N.E.2d 804, ¶ 13,
in which the court agreed with the assertion that “R.C. 3357.14 is the only
statutory provision directly related” to the type of college at issue in that case and
therefore is “the only appropriate statutory provision under which to consider
[the] application for exemption.” As a result, “R.C. 5709.07(A)(4) cannot provide
[the for-profit property owner] with a property-tax exemption.” Id. at ¶ 13.
{¶ 17} In response, Equity Dublin points out that the court in Athens Cty.
Auditor proceeded to consider whether the property there was exempt under R.C.
5709.07(A)(4) and also that the argument has a circular and obscure quality, given
that the appellants are arguing both that R.C. 3354.15 is unavailable to landlords
because it is specific to community colleges and that R.C. 5709.07(A)(4) is
unavailable to landlords because it applies more generally than the community-
college exemption does.
6
January Term, 2014
{¶ 18} Third, the BOE and the commissioner contend that the public-
college exemption is not available to a for-profit landlord, and they place heavy
reliance on
{¶ 19} R.C. 5709.07(B), which states that the section “shall not extend to
leasehold estates or real property held under the authority of a college or
university of learning in this state.” Equity Dublin counters primarily by its direct
reliance on Perk, 26 Ohio St. 2d 1, 268 N.E.2d 577, in which Cleveland State
University was able to exempt modular buildings located on the campus even
though those buildings were owned by a for-profit landlord and leased out to
Cleveland State for its use. At oral argument, the tax commissioner additionally
contended that our decision in Case W. Res. Univ. v. Wilkins, 105 Ohio St. 3d 276,
2005-Ohio-1649, 825 N.E.2d 146, “said that [Perk] has no applicability
anymore.”
{¶ 20} The tax commissioner makes one additional argument of a
jurisdictional nature. According to the commissioner, a claim of exemption under
R.C. 5709.07(A)(4) is jurisdictionally barred because the exemption applications
do not mention that statute as a basis for the exemption claim. The commissioner
advances this contention despite the fact that his own determination extensively
addressed the availability of exemption under that section.
Standard of Review
{¶ 21} We review BTA decisions to determine whether they are
reasonable and lawful. R.C. 5717.04; Satullo v. Wilkins, 111 Ohio St. 3d 399,
2006-Ohio-5856, 856 N.E.2d 954, ¶ 14, citing Columbus City School Dist. Bd. of
Edn. v. Zaino, 90 Ohio St. 3d 496, 497, 739 N.E.2d 783 (2001). Although we
defer to the BTA with respect to its determination of factual issues, we “ ‘will not
hesitate to reverse a BTA decision that is based on an incorrect legal conclusion.’
” Satullo, ¶ 14, quoting Gahanna-Jefferson Local School Dist. Bd. of Edn. v.
Zaino, 93 Ohio St. 3d 231, 232, 754 N.E.2d 789 (2001).
7
SUPREME COURT OF OHIO
{¶ 22} The essential facts of this matter are not in dispute; instead, this
appeal confronts us with how the exemption statutes, properly construed, apply to
those facts. This presents us with a question of law, which we decide de novo.
Akron Centre Plaza, L.L.C. v. Summit Cty. Bd. of Revision, 128 Ohio St. 3d 145,
2010-Ohio-5035, 942 N.E.2d 1054, ¶ 10.
Failure to File Cross-Appeal
{¶ 23} Both the tax commissioner and the BOE argue that the
appellee/property owners are not entitled to exemption under R.C. 3354.15. But
that issue is not before the court. The BTA determined that that exemption did
not apply, and the BOE and the tax commissioner—who opposed exemption of
the property on any basis—were not aggrieved by that finding. As a result, they
have no standing to appeal it. See Newman v. Levin, 116 Ohio St. 3d 1205, 2007-
Ohio-5507, 876 N.E.2d 960, ¶ 3 (tax commissioner lacked standing to appeal
from a BTA decision to the extent that that decision affirmed his determination),
citing Dayton-Montgomery Cty. Port Auth. v. Montgomery Cty. Bd. of Revision,
113 Ohio St. 3d 281, 2007-Ohio-1948, 865 N.E.2d 22, ¶ 33.
{¶ 24} For its part, Equity Dublin asserts that the BTA erred in denying
exemption pursuant to R.C. 3354.15 and maintains that the provision is an
alternative ground for affirmance. But the case law is clear that in appeals from
the BTA to the court under R.C. 5717.04, the specification requirement in the
statute makes it necessary for a cross-appeal to be filed in order to place the issue
before the court. See Dayton-Montgomery Cty. Port Auth., ¶ 32.
{¶ 25} Because Equity Dublin did not cross-appeal, we cannot grant relief
on the basis that the BTA rejected the exemption claim premised upon R.C.
3354.15 and 3358.10.
8
January Term, 2014
Identifying a Particular Statute on an Exemption Application
Is Not a Jurisdictional Prerequisite
{¶ 26} Before considering the property exemption issue, we address the
threshold issue of jurisdiction raised by the tax commissioner, who contends that
because Equity Dublin’s application identified R.C. 3354.15 and 3358.10 but
failed to identify R.C. 5709.07(A)(4) as a basis for exemption, there was no
jurisdiction for the commissioner himself—or derivatively, the BTA and this
court—to consider whether the property was exempt under R.C. 5709.07(A)(4).
As the BTA noted, the tax commissioner’s jurisdictional argument represents a
change in approach, because the commissioner’s final determination in this case
considered two statutory exemptions that were not identified on the face of the
exemption application.
{¶ 27} We reject the commissioner’s argument. Even when a requirement
on a tax form has been omitted and is procedurally important, it is not a
jurisdictional prerequisite unless the statutes prescribe that requirement.
Groveport Madison Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision,
137 Ohio St. 3d 266, 2013-Ohio-4627, 998 N.E.2d 1132, ¶ 14-15, 23, citing and
relying on Knickerbocker Properties, Inc. XLII v. Delaware Cty. Bd. of Revision,
119 Ohio St. 3d 233, 2008-Ohio-3192, 893 N.E.2d 457.
{¶ 28} In this case, the relevant statute is R.C. 5715.27, which authorizes
exemption applications. It states that an owner “may file an application with the
tax commissioner, on forms prescribed by the commissioner, requesting that such
property be exempted from taxation.”
{¶ 29} As we explained in Groveport Madison, the fact that the form itself
calls for identification of an exemption statute did not create a jurisdictional
requirement; there, the valuation-complaint form called for identification of the
property owner, but proper identification of that person was not a jurisdictional
prerequisite, because it was not directly required by the statute. Accord
9
SUPREME COURT OF OHIO
Knickerbocker, ¶ 10-14 (although form called for setting forth the property
owner’s address, supplying a proper address was not a jurisdictional prerequisite,
because the statute did not require it).
{¶ 30} In accord with this case authority, Equity Dublin’s failure to
identify R.C. 5709.07(A)(4) as a basis for exemption on the application does not
bar the claim.2 This is particularly true when, as here, the tax commissioner
devoted extensive substantive consideration to the R.C. 5709.07(A)(4) claim.
R.C. 3354.15 Does Not Preclude Consideration
of the Claim under R.C. 5709.07(A)(4)
{¶ 31} The tax commissioner and the BOE argue that because R.C.
3354.15 expresses an exemption in relation to community colleges, that provision
is, to quote the commissioner’s second proposition of law, “the exclusive statute
under which a claim to exemption based on a community college district’s lease
of the property may be considered.” Or, as alternatively formulated by the BOE
in its second proposition of law, R.C. 3354.15 is “the exclusive exemption for
property acquired, owned or used by a community college district” and is
“therefore the only appropriate statutory provision under which to consider an
exemption claim for such property.” This argument rests on a pronouncement in
Athens Cty. Auditor, 106 Ohio St. 3d 293, 2005-Ohio-4986, 834 N.E.2d 804, in
which we agreed with the assertion that “R.C. 3357.14 is the only statutory
provision directly related” to the type of college at issue in that case and therefore
“the only appropriate statutory provision under which to consider [the] application
2
At page 17 of his brief, the tax commissioner mistakenly asserts that the court has endorsed the
doctrine that identifying the exemption statutes in the application is a jurisdictional prerequisite.
The only court case cited is NBC-USA Housing, Inc.-Five v. Levin, 125 Ohio St. 3d 394, 2010-
Ohio-1553, 928 N.E.2d 715, ¶ 10, but that citation is unavailing. There the court did no more than
enforce the familiar doctrine that, pursuant to R.C. 5717.02, the appellant at the BTA must
identify in its notice of appeal to the BTA the errors complained of in the tax commissioner’s
determination. That is not at all the same as requiring that the basis for exemption have been
stated in the exemption application.
10
January Term, 2014
for exemption.” Id. at ¶ 13. As a result, “R.C. 5709.07(A)(4) cannot provide [the
for-profit property owner] with a property-tax exemption.” Id.
{¶ 32} What this argument ignores is that in Athens Cty. Auditor, we did
proceed to consider the claim of exemption under R.C. 5709.07(A)(4), and we
concluded that the exemption did not apply for reasons totally unrelated to the
existence of a more specific exemption. Additionally, Athens Cty. Auditor
involved technical colleges, which are subject to different statutes than the state
community college at issue here. Under these circumstances, our reasoning about
exclusivity in Athens Cty. Auditor is not binding on us as precedent in this case,
because of the factual distinction between these cases.
{¶ 33} Beyond those factors, our consideration of Equity Dublin’s claim
under Perk, 26 Ohio St. 2d 1, 268 N.E.2d 577, gives us cause to call into question
the validity of our pronouncement in Athens Cty. Auditor. In Perk, a state
university sought exemption as a lessee of modular buildings that had been
installed on its land and were used for university purposes. R.C. 3345.17 created
a specific tax exemption for state universities that depended on the university’s
ownership;3 yet in Perk, we considered and granted an exemption to the
university as lessee under R.C. 5709.07(A)(1).
{¶ 34} By the same logic, the fact that R.C. 3354.15 creates an exemption
relating to community colleges as property owners does not prevent consideration
3
Cleveland State’s property was exempted by R.C. 3345.17 in 1964. Am.H.B. No. 2, 130 Ohio
Laws, Part II, 181, 333. As we pointed out in Perk, Cleveland State University was created by
R.C. Chapter 3344 in 1964, and the university’s exemption application in that case pertained to
buildings installed in 1967. Perk, 26 Ohio St. 2d at 2. Plainly, Cleveland State’s application in
Perk was designed to evade the limitation on the state-university exemption that we have referred
to as the “ownership qualification” in Columbus School Dist. Bd. of Edn. v. Testa, 130 Ohio St. 3d
344, 2011-Ohio-5534, 958 N.E.2d 557, ¶ 13: because Cleveland State did not own the modular
buildings at issue in Perk, the university had to seek exemption under R.C. 5709.07(A)(4). Under
the appellants’ exclusivity argument in this case, the exemption sought in Perk would have had to
be denied; yet we granted the exemption in that case.
11
SUPREME COURT OF OHIO
of a right to exemption under R.C. 5709.07(A)(1) based on the community
college being a lessee of the buildings at issue.
The Public-College Exemption Applies to Buildings Leased
by the College Only When the College Owns the Land
1. Case W. Res. Univ. applies where the college is lessor, not lessee
{¶ 35} In arguing that exemption under R.C. 5709.07(A)(1) is not
warranted here, the BOE and the tax commissioner emphasize R.C. 5709.07(B),
which states that “[t]his section shall not extend to leasehold estates or real
property held under the authority of a college or university of learning in this
state,” as a reason to deny the exemption. Reliance is placed upon Case W. Res.
Univ., 105 Ohio St. 3d 276, 2005-Ohio-1649, 825 N.E.2d 146. Indeed, the tax
commissioner contends that Case W. Res. Univ. both eclipses Perk and
independently establishes that the public-college exemption is never available
where there is a leasehold (except in precisely specified circumstances).
{¶ 36} The tax commissioner is mistaken on both counts. Case W. Res.
Univ. addresses the situation where the public college is the owner and lessor of
property that has been leased by the public college to a third-party tenant. That is
the opposite of the situation here. Moreover, far from saying that Perk “has no
applicability anymore,” Case W. Res. Univ. does not even cite Perk.
{¶ 37} Because Case W. Res. Univ. is inapposite, we proceed to address
whether the property at issue is exempt under the holding of Perk.
2. Perk limits its holding to buildings “on campus,” i.e.,
on the land owned by the institution
{¶ 38} The case law is clear that, as the claimant seeking exemption,
Equity Dublin has “the onus * * * to show that the language of the statute ‘clearly
express[es] the exemption’ in relation to the facts of the claim.’ ”
Anderson/Maltbie, 127 Ohio St. 3d 178, 2010-Ohio-4904, 937 N.E.2d 547, ¶ 16,
quoting Ares, Inc. v. Limbach, 51 Ohio St. 3d 102, 104, 554 N.E.2d 1310 (1990).
12
January Term, 2014
The court also stated in Anderson/Maltbie that it would not broaden the judicial
reading of the statute beyond the scope of exemption already established in the
case law. Id. at ¶ 22-23.
{¶ 39} In plain terms, R.C. 5709.07(A)(4) provides an exemption as
follows:
(A) The following property shall be exempt from taxation:
***
(4) Public colleges and academies and all buildings
connected with them, and all lands connected with public
institutions of learning, not used with a view to profit * * *.
{¶ 40} The starting point is that “public colleges” are listed as a type of
“property” to be exempted. The clear implication of this manner of speaking is
that the statute’s reference to public colleges and academies is intended to refer to
property insofar as it is owned and occupied and used by those institutions for
their basic institutional purposes.
{¶ 41} Equity Dublin seeks exemption by citing the statute as construed
and applied in Perk, 26 Ohio St. 2d 1, 268 N.E.2d 577. In that case, Cleveland
State was unable to afford to construct permanent buildings on part of its campus.
As a result, it contracted for modular buildings to be installed that were owned by
the installer, a for-profit company that leased the buildings to Cleveland State. Id.
at 3. The BTA in this case read Perk as holding that “property used solely for
classrooms and faculty offices were buildings ‘connected with’ a public college,”
and in the BTA’s view the court had “specifically rejected the argument that the
property must be owned and used by the public college to be entitled to
exemption.” (Emphasis sic.) BTA Nos. 2011-Q-1192 and 2011-Q-1195, at 8.
13
SUPREME COURT OF OHIO
But the BTA’s characterization ignores a crucial element of the court’s reasoning
in Perk.
{¶ 42} Consistent with Anderson/Maltbie, Equity Dublin must present
facts governed by Perk and the language of the statute in order to prevail. In
Perk, the buildings were leased from a for-profit company, as in this case; but
those buildings were installed on land owned by Cleveland State for which
Cleveland State had obtained exemption as public property used exclusively for
public purposes. Perk at 2. That circumstance factually distinguishes Perk from
this case.
{¶ 43} Two circumstances support the interpretation that ownership of
land was decisive in Perk. First, the language of the statute that the court relied
on indicates that it was. “Looking solely at the language ‘public colleges and
academies and all buildings connected therewith,’ we think it clear that the
buildings in question, standing on the campus of Cleveland State and being used
solely for classroom and faculty offices, are buildings ‘connected’ with a public
college.” Id. at 5. Notably, the court’s process of reasoning in that passage
identifies both the use of the buildings and their presence “on the campus” as
relevant to determining that they are connected. The court also incorporated both
elements into the syllabus: “[B]uildings located on the campus of a state
university and used exclusively for classrooms and faculty offices are exempt
from taxation, even though such buildings are not owned by the university * * *.”
(Emphasis added.) Paragraph two of the syllabus.
{¶ 44} Second, Perk relied heavily on the court’s earlier decision in
Denison University v. Bd. of Tax Appeals, 2 Ohio St. 2d 17, 205 N.E.2d 896
(1965). In that case, Denison sought exemption for various parcels of real
property that it owned: a 127-acre farm with certain buildings, including a
carpentry shop used for university maintenance and repair, a lumber shed used for
storing lumber intended for the carpentry shop, the dwelling of the caretaker, and
14
January Term, 2014
riding facilities used for physical education; the president’s home on the college
campus; and a guesthouse and its eight-acre tract. Id. at 19. In upholding the
exemption claim as to all of the property, and in finding that the buildings were
sufficiently “connected with” the college and that the ancillary lands were not
used for profit, we stated that it would be “unreasonable to tax facilities for such
education where private donations have provided those facilities and thereby
relieved tax dollars from providing them.” (Emphasis added.) Id. at 28-29.
{¶ 45} In other words, the ownership of the lands by the public college as
an endowment for the public good justified the broad scope of exemption under
R.C. 5709.07 in Denison. Such a justification is not present in this case, where
neither the land nor the building constitutes a “private donation” or a public
expenditure, but both are leased from a for-profit landlord. Allowing the public-
college exemption when neither the buildings nor the land belongs to the college
is inconsistent with the rationale of Denison, as it is contrary to the reasoning of
Perk.
CONCLUSION
{¶ 46} The BTA erred by construing R.C. 5709.07(A)(4) to allow
exemption in this case. We therefore reverse the decision of the BTA.
Decision reversed.
O’CONNOR, C.J., and KENNEDY, and FRENCH, JJ., concur.
PFEIFER, and LANZINGER, and O’NEILL, JJ., dissent.
__________________
PFEIFER, J., dissenting.
{¶ 47} Because the majority adds a requirement to R.C. 5709.07(A) that is
not in the statute, I dissent. I would hold instead that the decision of the Board of
Tax Appeals (“BTA”) was reasonable and lawful.
{¶ 48} Under R.C. 5709.07(A)(4), the following property is exempt from
taxation: “Public colleges and academies and all buildings connected with them,
15
SUPREME COURT OF OHIO
and all lands connected with public institutions of learning, not used with a view
to profit.” The BTA reasonably and lawfully determined that the buildings leased
by Columbus State Community College are entitled to exemption under R.C.
5709.07(A)(4) because they are “connected with” the community college. The
majority does not quarrel with the fact that Columbus State used the property at
issue for basic institutional purposes, educating an annual enrollment of 1490
students at the Dublin property and 490 students at the Groveport property. I
would hold that those facts, which demonstrate a use of the property for core
educational purposes, provide the requisite connection between the buildings and
Columbus State to allow the exemption.
{¶ 49} But the majority inserts an additional requirement for the
exemption—that the land beneath the buildings be owned by the public college—
which it claims was made mandatory by this court in Cleveland State Univ. v.
Perk, 26 Ohio St. 2d 1, 268 N.E.2d 577 (1971). In Perk, this court considered
whether the exemption in former R.C. 5709.07, which was identical in all
meaningful respects to the version of the statute at play in this case, should apply
to temporary buildings leased to Cleveland State University. A few years after
Cleveland State’s 1964 founding, “apparently lacking financial ability to build
needed classrooms and faculty offices, its board of trustees * * * entered into an
agreement with Modulux, Inc., a corporation for profit, by which Cleveland State
leased from Modulux seven temporary relocatable buildings for a term of three
years with an option for a one-year or two-year renewal.” Id. at 2. Modulux and
Cleveland State, which was contractually obligated to reimburse Modulux for any
property taxes it paid on the buildings, sought an exemption from property taxes.
The BTA denied the exemption, basing its decision on the for-profit nature of
Modulux, and ignoring the educational use of the buildings:
16
January Term, 2014
“The buildings are being used by Modulux, Inc., a
corporation for profit, to generate income and profit. The fact that
the lessee uses the property for educational purposes is immaterial.
Modulux, Inc., is not an institution of learning and, as owner of the
subject property, Modulux, Inc., is not using the property for
educational purposes.”
Id. at 3, quoting the BTA’s decision.
{¶ 50} This court reversed, holding instead that the fact that the lessee
used the property for educational purposes was not immaterial, but crucial:
“Looking solely at the language ‘public colleges and academies and all buildings
connected therewith,’ we think it clear that the buildings in question, standing on
the campus of Cleveland State and being used solely for classrooms and faculty
offices, are buildings ‘connected’ with a public college. Id. at 5.
{¶ 51} The majority has made this court’s recognition in Perk that the
buildings at issue were on Cleveland State’s campus a sine qua non of eligibility
for an R.C. 5709.07(A) exemption. However, although the building’s location
may have been a factor in cementing the connection of the buildings to Cleveland
State, their location was not an indispensable part of the holding.
{¶ 52} Perk resolved two key issues. First, the court held that the
applicant for the exemption need not be the owner. The second issue was whether
the limiting phrase “not used with a view to profit” of R.C. 5709.07 controlled the
phrase “public colleges and academies and all buildings connected therewith.”
The court held that the limiting phrase applied to lands, not buildings. This court
concluded, “Thus it appears that the buildings in question are entitled to tax
exemption, even if ‘used with a view to profit’ within the meaning of those words
in R.C. 5709.07.” Perk at 8. Thus, this court held that buildings connected with
public colleges are exempt from taxation, even if they are not owned by the public
17
SUPREME COURT OF OHIO
college and even if a nonpublic entity profits from the public college’s use of the
buildings.
{¶ 53} Whether the buildings were connected with Cleveland State was
never an issue in Perk. Yes, the court noted that the buildings were on the
campus of Cleveland State and used exclusively for classrooms and offices, but
this court in no way held that buildings must be on an institution’s main campus
in order to qualify for the exemption. All that the statute requires is that the
building be connected with the college. Perk does not hold otherwise.
{¶ 54} The exemption at issue applies to the buildings, and thus, who
owns the land below the buildings is not relevant. R.C. 5709.07(A)(4) treats land
differently from buildings. This case is about buildings. The buildings in this
case are indisputably connected to Columbus State. Two thousand students per
year went to these buildings in order to earn credits for a degree from Columbus
State. Are those credits worth less than those earned in a building on the main
campus in downtown Columbus? Should Columbus State be punished for its
efforts at suburban outreach? As the majority acknowledges, it is Columbus
State—like Cleveland State in Perk—that will be paying the taxes in this case if
the R.C. 5709.07 exemption is deemed inapplicable. Ultimately, that burden will
fall upon students and taxpayers. Certainly the General Assembly had that fact of
life in mind when it instituted the exemption.
{¶ 55} The General Assembly has determined that buildings used to
educate Ohioans at public colleges are exempt from taxation. This court has
previously determined that that exemption should apply regardless of the owner
of the buildings. But the majority takes an incidental fact from Perk and makes it
an essential element of eligibility for an R.C. 5709.07(A)(4) exemption. In doing
so, it ignores the intent of the statute and encumbers the mission of community
colleges in Ohio.
18
January Term, 2014
LANZINGER and O’NEILL, JJ., concur in the foregoing dissenting opinion.
__________________
Luper, Neidenthal & Logan, Matthew T. Anderson, and M. Salman Shah,
for appellees.
Michael DeWine, Attorney General, and Barton A. Hubbard and David D.
Ebersole, Assistant Attorneys General, for appellant Tax Commissioner of Ohio.
Rich & Gillis Law Group, L.L.C., Mark H. Gillis, and Kimberley G.
Allison, for appellants Dublin City School District Board of Education and
Columbus City School District Board of Education.
__________________
19 | 01-03-2023 | 12-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/4516212/ | Filed 3/12/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F076295
Plaintiff and Respondent,
(Super. Ct. No. VCF325028TT)
v.
PEDRO LOPEZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian,* Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Julie A.
Hokans, and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
*Retired judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
Pedro Lopez (defendant) was one of several Norteño gang members found guilty
of conspiring to commit two home invasion robberies. Law enforcement agencies were
already conducting a wiretapping operation when the conspiracy began to develop. As a
result, the perpetrators were apprehended while driving to the targeted homes and were
thwarted from committing the intended crimes. Defendant appeals from a judgment of
conviction on counts of unlawful possession of a firearm and ammunition, attempted
robbery, conspiracy to commit robbery, and a violation of the gang conspiracy statute,
Penal Code section 182.5 (all further statutory references are to this code).
Defendant’s claims allege insufficient evidence, instructional error, and sentencing
error. He presents meritorious arguments with regard to a duplicative conspiracy charge
and the section 182.5 conviction, although the latter count need only be modified to
conform to the jury’s findings. On the topic of sentencing, we hold a conspiracy
conviction under section 182 may be subject to the alternate penalty provision of section
186.22, subdivision (b)(4)(B), which imposes a prison term of 15 years to life for certain
gang-related crimes. We affirm in part, reverse in part, and remand the matter for further
proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The People’s evidence showed, and defendant does not dispute, that the Norteños
are a criminal street gang with members located throughout the Central Valley of
California. Defendant was affiliated with a Norteño “subset” in Fresno County called
Varrio East Side Reedley. Gang members from other subsets or “cliques” also
participated in the underlying events, and there are no issues regarding the perpetrators’
common ties to an overarching criminal enterprise.
In 2015, multiple law enforcement agencies conducted a joint investigation into
the activities of Norteño gang members in Tulare County. Operation Red Sol involved
the wiretapping of phones used by certain high-ranking members, including Emanuel
Avalos, Rigoberto Benavidez, and Pedro Sanchez. Sanchez held the position of
2.
“regiment commander” and was considered “the boss of Tulare County.” Avalos lived in
Lindsay and held the subordinate position of “south county leader.” Investigators
believed Benavidez was in the process of “taking over Madera County,” which suggested
he and Sanchez were similarly situated within the gang’s organizational hierarchy.
On August 24, 2015, law enforcement agents listened as Sanchez, Benavidez, and
Avalos began recruiting people for a “job” in Visalia. Sanchez communicated with
defendant both telephonically and via text messaging, and defendant agreed to meet up
with the “workers” that evening. In a separate message exchanged between Sanchez and
Benavidez, Sanchez remarked, “This is a good lick and great opportunity.” The agents
understood the word “lick” to be a slang term for robbery.
In addition to monitoring the electronic communications, agents conducted visual
surveillance outside of Avalos’s home in Lindsay and Benavidez’s apartment in Visalia.
At approximately 4:00 p.m., Sanchez and Avalos met at Avalos’s residence with a gang
member named Luis Corona and several unidentified Hispanic males. Corona
subsequently departed in a white Nissan Altima.
Over the next few hours, the involved parties alluded to a plan for the robbers to
impersonate agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF).
Conversations between Sanchez and Avalos specified that uniforms would be provided
and everyone would be armed with guns. Benavidez worked on finding a suitable place
for the men to convene before and after the robberies. Earlier in the day, he had asked
the central county leader, Val Ornelas, for assistance in locating a safe house near
Pinkham Street, “anywhere from Lovers Lane to Ben Maddox [Way] and from Noble
[Avenue] to Tulare [Avenue].”
Shortly after 7:00 p.m., Benavidez drove to the 1100 block of Pinkham Street and
met up with four people in a white Nissan Altima, which had just driven there from
Avalos’s residence. Avalos’s brother, Cervando, was among the group of people in the
white car. Both vehicles then drove to Benavidez’s apartment complex on South Encina
3.
Street, and Benavidez called Sanchez to tell him the designated meeting place could not
be used and everyone should meet at his apartment. Sanchez sent defendant a message
informing him of the change, and defendant proceeded to contact Benavidez for
directions. At approximately 7:35 p.m., defendant and a group of unidentified passengers
arrived at Benavidez’s apartment in a silver BMW.
At 7:47 p.m., Cervando Avalos began making a series of calls to his brother and
Sanchez to complain about defendant’s crew being unprepared. There were no ATF
uniforms and some people did not have ammunition for their firearms. They were also in
need of a second vehicle. Cervando said defendant’s BMW had “dealer plates” and other
distinctive features that made it “too easy to spot.” When apprised of the situation,
Sanchez authorized a 24-hour postponement. While Cervando was talking to Sanchez,
defendant’s group left to obtain bullets and returned a few minutes later.
During a subsequent phone call between the Avalos brothers, Emanuel asked to
speak with whoever was “in charge there.” Defendant came on the line and provided a
status report, claiming they were “stocked up” with weapons and had two bulletproof
vests. Emanuel asked, “Is there anything on there that says ATF?” Defendant said no
and described the attire as “SWAT gear.”
Agents conducting aerial surveillance observed defendant’s BMW leave the
apartment complex again and drive to the vicinity of Pinkham Street and Noble Avenue.
The car drove slowly through a neighborhood before returning to Benavidez’s apartment
at approximately 8:29 p.m. About 30 minutes later, Benavidez sent the following text
message to Sanchez: “‘The homie went by the layout. I think we can handle it. The
little homie just needs a few more [people].’” Sanchez replied that he had a crew “‘ready
to go’” and would “‘be on it tomorrow.’”
On August 25, 2015, defendant sent a text message to Sanchez: “‘On track,
brother, so you know[,] [I am] here in your area doing a bit more homework on the two
job sites.’” Sanchez replied, “‘Okay. [We’ll] give it another try tonight. I’ll be with you
4.
shortly with some ideas.’” Later that afternoon, Sanchez exchanged the following text
messages with a person named Ricardo Reyes:
Sanchez: “‘Need two to three people for two pads [houses]. They’ll be
part of a team tonight in [Visalia]. We’ve been doing
homework for two days and tonight’s a go. Are you [in]?’”
Reyes: “‘[Yes.] I got the squad already, too. What is it, though, and
is it worth it?’”
Sanchez: “‘It’s two pads … square people. They got safes and guns
and gold. Just bring bangers [guns].’”
Reyes: “‘Got ’em. What part of Visa[lia]?’”
Sanchez: “‘By Walmart off Ben Maddox.’”
Reyes: “‘How much people in each pad?’”
Sanchez: “‘[They’re neighboring houses.] [One] has two people. One
has one. Old lady and a husband and wife …. It’s easy. Got
to be quick.’”
Reyes: “‘Oh, we’ll be fast. Who is gonna show us where it’s at and
[it’s] a for sure one right?’”
Sanchez: “‘Yes, we have a safe spot close by where we will meet up.’”
Due to problems acquiring one or more stolen vehicles, which apparently were
preferred over cars that could be traced back to them, the participants decided to use the
white Nissan Altima and Emanuel Avalos’s white Ford Explorer. Emanuel planned to
wait in his vehicle during the robberies and then use it to transport the loot. He and gang
member Juan Hinojosa discussed tying up the victims to prevent them from seeing the
cars. When Avalos expressed concern about waiting outside without a gun, Hinojosa
reminded him, “It’s an old guy and an old lady.”
At approximately 7:12 p.m., Sanchez sent a text message to Reyes confirming that
the “‘thing’” in Visalia was “‘[i]n process.’” At 7:24 p.m., defendant texted Sanchez to
5.
say he was “‘[h]eading that way.’” At approximately 7:53 p.m., after his BMW had
pulled up to Benavidez’s apartment complex, defendant sent another message: “‘We
here.’” During the same general time frame, Avalos informed Sanchez that his group
was almost in Visalia and were “‘ready to move once at the house.’”
At 8:03 p.m., the BMW moved to an adjacent street. The Nissan Altima and Ford
Explorer arrived a few minutes later. At approximately 8:20 p.m., the BMW’s occupants
got into the other vehicles, which then began driving toward Noble Avenue.
At 8:28 p.m., Emanuel Avalos sent a message to Sanchez: “‘We in motion. I’ll
update you soon.’” About a minute later, police attempted to stop the Altima. The lights
and siren of a marked patrol car were activated as the Altima was driving east on Noble
Avenue, past the Ben Maddox Way intersection and heading toward the Walmart
referenced in Sanchez’s text messages. The Altima accelerated and a high-speed chase
ensued, which continued until the car sustained damage driving over a median. The five
occupants fled on foot but were apprehended; police arrested Luis Corona, Sergio
Heredia, Juan Hinojosa, Roberto Saldana, Jr., and defendant.
A search of the Altima yielded a 22-caliber AR-style rifle and a pair of black latex
gloves. A mask and second pair of gloves were found outside the vehicle, and four
additional firearms were seized in conjunction with the suspects’ arrests. Most of the
firearms had been discarded and/or hidden in areas near where the suspects were
detained. The guns were loaded, and one had been wrapped up inside of a ski mask.
Defendant’s case was severed from a larger prosecution of dozens of people. He
was charged with conspiracy to commit “home invasion robbery” (§§ 182, subd. (a)(1),
211, 213, subd. (a)(1)(A); counts 19 & 162); participation in a “criminal street gang
conspiracy” to commit the same target offense (§ 182.5; count 20); possession of a
firearm by a convicted felon (§ 29800, subd. (a)(1); count 156); unlawful possession of
ammunition (§ 30305, subd. (a)(1); count 160); and “attempted home invasion robbery”
(§§ 664, 211, 213, subd. (a)(1)(A); count 163). (Original capitalization omitted.) Each
6.
offense was alleged to be gang related within the meaning of section 186.22, subdivision
(b)(1).
Counts 19, 20, and 162 were alleged to be punishable by an indeterminate life
term under section 186.22, subdivision (b)(4). Defendant was further alleged to have
suffered a prior strike and serious felony conviction (§§ 667, subds. (a)(1), (b)–(i),
1170.12) and to have served two prior prison terms within the meaning of former section
667.5, subdivision (b). A firearm enhancement was pleaded pursuant to section
12022.53, but it was effectively dismissed after the People refrained from presenting the
allegation to the jury.
The People’s case established the facts summarized above. The defense rested
without presenting any evidence. Defendant was convicted as charged (except for the
firearm enhancement) and sentenced to 35 years to life in prison plus a consecutive
determinate term of 19 years. Sentencing details are provided in the final section of the
opinion.
DISCUSSION
I. Attempted First Degree Robbery
Defendant claims the People failed to prove the elements of attempted robbery as
alleged in count 163. “On appeal, the test of legal sufficiency is whether there is
substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude
that the prosecution sustained its burden of proof beyond a reasonable doubt.” (People v.
Boyer (2006) 38 Cal. 4th 412, 479.) We construe the record in the light most favorable to
the judgment and presume “‘the existence of every fact the jury could reasonably have
deduced from the evidence.’” (People v. Mendez (2019) 7 Cal. 5th 680, 702.)
Robbery is “the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211.) Section 212.5 divides the offense into degrees, and “every
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robbery which is perpetrated in an inhabited dwelling house” constitutes “robbery of the
first degree.” (Id., subd. (a).) Harsher punishment is imposed for robberies committed
“in concert with two or more other persons … within an inhabited dwelling house.”
(§ 213, subd. (a)(1)(A).) The aggravated form of first degree robbery is commonly
referred to as “robbery in concert” or “home invasion robbery.” (People v. Jones (2012)
54 Cal. 4th 350, 367; People v. Epperson (2017) 7 Cal. App. 5th 385, 391.)
A criminal attempt consists of two elements: the specific intent to commit a crime
and “a direct but ineffectual act done toward its commission.” (§ 21a.) Case law
describes the second element as an “overt act” requirement. “The overt act element of
attempt requires conduct that goes beyond ‘mere preparation’ and ‘show[s] that
[defendant] is putting his or her plan into action.’” (People v. Watkins (2012) 55 Cal. 4th
999, 1021, quoting People v. Superior Court (Decker) (2007) 41 Cal. 4th 1, 8 (Decker).)
Therefore, attempted robbery requires the specific intent to commit robbery and an overt
act toward its commission that goes beyond planning or preparation.
“[P]reparation consists of devising or arranging the means or measures necessary
for the commission of the offense, while the attempt is the direct movement toward its
commission after the preparations are made.” (People v. Memro (1985) 38 Cal. 3d 658,
698, overruled on another ground in People v. Gaines (2009) 46 Cal. 4th 172, 181, fn. 2.)
“[W]hen the acts are such that any rational person would believe a crime is about to be
consummated absent an intervening force, the attempt is underway ….” (People v.
Dillon (1983) 34 Cal. 3d 441, 455 (plur. opn.) (Dillon).) For example, in People v.
Bonner (2000) 80 Cal. App. 4th 759, the appellant was convicted of attempted robbery
despite never encountering his intended victims. Michael Bonner had inside information
about a hotel manager’s routine of transporting cash to a bank. With a plan to rob the
manager and his assistant as they were leaving the building, Bonner went to the hotel and
hid in a garage-level laundry room while armed and wearing a mask. The housekeeping
staff walked in on him, and he fled the scene. (Id. at pp. 761–762.) The appellate court
8.
noted that an overt act need not be “the last proximate or ultimate step toward
commission of the crime.” (Id. at p. 764, citing People v. Kipp (1998) 18 Cal. 4th 349,
376.)
The dividing line between acts of preparation and a criminal attempt “depends
upon the facts and circumstances of a particular case.” (Decker, supra, 41 Cal.4th at p.
14.) “Although a definitive test has proved elusive, [courts] have long recognized that
‘[w]henever the design of a person to commit crime is clearly shown, slight acts in
furtherance of the design will constitute an attempt.’” (Id. at p. 8, quoting People v.
Anderson (1934) 1 Cal. 2d 687, 690 (Anderson).) The stronger the evidence of intent,
“the more likely that steps in the early stages of the commission of the crime will satisfy
the overt act requirement.” (Dillon, supra, 34 Cal.3d at p. 455.) In other words, “[w]here
the intent to commit the crime is clearly shown, an act done toward the commission of
the crime may be sufficient for an attempt even though that same act would be
insufficient if the intent is not as clearly shown.” (People v. Bonner, supra, 80
Cal.App.4th at p. 764.)
Defendant’s opening brief factually distinguishes this case from Dillon, Anderson,
and People v. Vizcarra (1980) 110 Cal. App. 3d 858, each of which involved would-be
robbers who, in defendant’s words, reached “the immediate vicinity of the location” of
the intended crime. In Anderson, where the California Supreme Court first adopted the
slight acts rule, the brandishing of a firearm roughly two feet away from a theater’s ticket
window was held to constitute attempted robbery. However, the high court described the
appellant’s “conduct in concealing the gun on his person and going to the general
vicinity” of the theater as “mere acts of preparation.” (Anderson, supra, 1 Cal.2d at p.
690.) In Vizcarra, the appellant’s movement toward a liquor store while armed with a
rifle was deemed “a sufficient direct act toward the accomplishment of the robbery” in
light of his effort to “hide on the pathway immediately adjacent to the liquor store when
observed by a customer.” (Vizcarra, supra, 110 Cal.App.3d at p. 862.) In Dillon, the
9.
appellant committed attempted robbery by breaching the outer perimeter of a marijuana
farm—which he knew to be guarded—while he and his accomplices were in possession
of “guns, knives, clubs, masks, rope, and strips of sheeting.” (Dillon, supra, 34 Cal.3d at
pp. 455–456; see id. at p. 451.)
Defendant claims he did not get close enough to the targeted houses to commit
attempted home invasion robbery. In response, the People rely on the slight acts rule and
characterize the “general vicinity” statement in Anderson as obiter dictum. (Anderson,
supra, 1 Cal.2d at p. 690; see Childers v. Childers (1946) 74 Cal. App. 2d 56, 61 [“There
is no kinship between stare decisis and obiter dictum. Whatever may be said in an
opinion that is not necessary to a determination of the question involved is to be regarded
as mere dictum.”].) In his reply brief, defendant argues the Anderson dictum was cited
approvingly in People v. Garton (2018) 4 Cal. 5th 485 (Garton), which is true. Defendant
directs our attention to page 512 of Garton, but the more salient reference is made in a
string citation to support the following statement: “[O]ur case law does not suggest that a
defendant with clearly shown intent need only make preparations or start moving toward
the intended victim to be guilty of attempted murder.” (Id. at p. 514.)
The appellant in Garton was a Shasta County resident who had devised an
elaborate plot to kill a man who lived in Gresham, Oregon, and who worked in the nearby
city of Portland. (Garton, supra, 4 Cal.5th at pp. 490–491, 508–509.) Todd Garton spent
months planning the murder and even travelled to Oregon to familiarize himself with the
man’s home and place of business. (Id. at pp. 491, 508.) Garton was having sexual
relations with the intended victim’s wife, and she was in on the plan. (Id. at pp. 490–
491.)
In February 1998, Garton and two accomplices “loaded Garton’s car with an
assortment of guns, ammunition, and knives, as well as a homemade silencer, latex
gloves, and two walkie-talkies,” and then drove from Shasta County to Gresham, Oregon.
(Garton, supra, 4 Cal.5th at p. 509; see id. at p. 496.) They arrived the same day and
10.
spent the night at a motel. The next morning, the trio drove to the intended victim’s
workplace and waited in a parking garage, intending to kill him when he arrived.
However, “unbeknownst to Garton, [the wife had told her husband] to drive the larger of
their cars, knowing that this car would not fit into the garage where the three men waited.
After realizing that [he] had parked elsewhere, the men left.…” (Id. at p. 491; see id. at
p. 509.)
The relevant issue in Garton was whether the trial court had territorial jurisdiction
over a charge of conspiracy to commit an out-of-state murder. Under the law in effect in
1998, such jurisdiction would not have existed unless the “acts within California’s
borders independently constituted an attempt to commit murder.” (Garton, supra, 4
Cal.5th at p. 510.) In a four-to-three decision, the California Supreme Court concluded
the steps taken by Garton in his home state were insufficient to satisfy the overt act
element of attempted murder. (Id. at p. 513.) Two circumstances were dispositive: First,
“Garton’s actions in California did not occur in close proximity to the victim or to the
anticipated site of the murder in the Portland area.” (Id. at p. 512.) Second, “Garton’s
actions in California on February 6, 1998, were temporally separated by one night from
his actions in Oregon on the morning of February 7, 1998.” (Id. at p. 513.) Therefore,
“at the moment defendant and his coconspirators entered into Oregon, the plot to kill [the
intended victim] was not ‘in such progress that it [would] be consummated unless
interrupted by circumstances independent of the will of the attempter ….’” (Id. at pp.
513–514.)
The facts of this case differ significantly from those in Garton. When Garton
reached the Oregon border, he was still hundreds of miles away from his intended victim.
(Garton, supra, 4 Cal.5th at p. 525 (conc. & dis. opn. of Chin, J.).) Here, defendant was
in a car travelling east on Noble Avenue and approaching the intersection of Pinkham
Street, i.e., the neighborhood in which the jury impliedly found the targeted homes were
located. In terms of temporal proximity, the Altima was on course to reach its destination
11.
in a matter of minutes or even seconds.1 However, in further contrast to Garton,
defendant’s plan was thwarted by police intervention.
If the unlawful design involves “concerted action—and hence a greater likelihood
that the criminal objective will be accomplished [citation]—there is a greater urgency for
intervention by the state at an earlier stage in the course of that conduct.” (Decker,
supra, 41 Cal.4th at pp. 10–11.) “When a defendant’s intent is ‘“clearly shown, slight
acts done in furtherance of that design will constitute an attempt, and the courts should
not destroy the practical and common-sense administration of the law with subtleties as
to what constitutes preparation and what constitutes an act done toward the commission
of a crime.”’” (People v. Davis (2009) 46 Cal. 4th 539, 606, quoting People v. Memro,
supra, 38 Cal.3d at p. 698.) In this instance, police saw a nefarious plot being carried out
in real time and intervened after the participants had clearly demonstrated their intent to
commit a home invasion robbery. The question is whether the law required defendant to
reach the targeted home or take even further steps toward committing the crime in order
for jurors to find the requisite overt act.
“The standard is not that attempt liability attaches when law enforcement may
lawfully intercede for investigative or crime prevention purposes.” (Garton, supra, 4
Cal.5th at p. 510.) “If it is not clear from a suspect’s acts what he intends to do, an
observer cannot reasonably conclude that a crime will be committed; but when the acts
are such that any rational person would believe a crime is about to be consummated
absent an intervening force, the attempt is underway ….” (Dillon, supra, 34 Cal.3d at p.
1The jury viewed People’s exhibit No. 14, which is a video containing 11 minutes of
aerial surveillance footage beginning shortly before the Altima departed from Benavidez’s
apartment complex and ending after its occupants had exited the car and began running from the
police. The recording equipment had mapping software, so the roadways traversed by the
vehicle are identified in the video. The time counter reads 20:29:43 (8:29 p.m. and 43 seconds)
at the approximate moment when a police car pulls behind the Altima as it is crossing over South
Ben Maddox Way. The Altima reaches the intersection of East Noble Avenue and South
Pinkham Street approximately 35 seconds later, when the counter reads 20:30:18.
12.
455.) After careful consideration of the governing principles, we conclude the evidence
is sufficient to support the verdict of attempted first degree robbery. The particular facts
and circumstances of this case “would lead a reasonable person to ‘believe a crime [was]
about to be consummated absent an intervening force’—and thus that ‘the attempt [was]
underway’” when the police interceded. (Decker, supra, 41 Cal.4th at p. 9.)
In a related argument, defendant says “it is unknown whether the intended victims
were even home,” and alleges “their presence was a condition precedent to an attempted
robbery that otherwise would have been a mere burglary.” He cites no authority for this
proposition and fails to affirmatively demonstrate error. It is settled that “the commission
of an attempt does not require proof of any particular element of the completed crime,”
and “a person may be convicted of an attempt to commit a crime he never could have
completed under the circumstances.” (People v. Chandler (2014) 60 Cal. 4th 508, 517.)
II. Criminal Street Gang Conspiracy (§ 182.5)
Defendant was found guilty under sections 182 and 182.5 for conspiring to
commit a home invasion robbery. He disputes his conviction on count 20, which alleged
a violation of the latter statute. Although presented as an insufficient evidence claim, the
determinative issue is one of statutory interpretation. A secondary challenge is made on
the basis of instructional error. The standard of review is de novo. (John v. Superior
Court (2016) 63 Cal. 4th 91, 95; People v. Cole (2004) 33 Cal. 4th 1158, 1208.)
A. Applicable Law
Section 182 proscribes the “traditional” form of criminal conspiracy. (People v.
Johnson (2013) 57 Cal. 4th 250, 257, 261-262.) The offense is defined as an agreement
between two or more people to commit any crime, “together with proof of the
commission of an overt act ‘by one or more of the parties to such agreement’ in
furtherance thereof.” (People v. Swain (1996) 12 Cal. 4th 593, 600, quoting §§ 182, subd.
(a)(1), 184.) In this context, an overt act is “‘“an outward act done in pursuance of the
13.
crime and in manifestation of an intent or design, looking toward the accomplishment of
the crime.”’” (Johnson, at p. 259, quoting People v. Zamora (1976) 18 Cal. 3d 538, 549,
fn. 8.)
A traditional conspiracy does not require completion of the crime the conspirators
have agreed to commit. (People v. Swain, supra, 12 Cal.4th at p. 559.) “Once one of the
conspirators has performed an overt act in furtherance of the agreement, ‘the association
becomes an active force, it is the agreement, not the overt act, which is punishable.
Hence the overt act need not amount to a criminal attempt and it need not be criminal in
itself.’ [Citations].” (People v. Johnson, supra, 57 Cal.4th at p. 259.)
Section 182.5 was enacted by voter initiative (Proposition 21) in the year 2000 and
“created a new form of conspiracy that is distinct from the traditional understanding of
the crime ….” (People v. Johnson, supra, 57 Cal.4th at p. 261.) The statute provides:
“Notwithstanding subdivisions (a) or (b) of Section 182, any person who
actively participates in any criminal street gang, as defined in subdivision
(f) of Section 186.22, with knowledge that its members engage in or have
engaged in a pattern of criminal gang activity, as defined in subdivision (e)
of Section 186.22, and who willfully promotes, furthers, assists, or benefits
from any felonious criminal conduct by members of that gang is guilty of
conspiracy to commit that felony and may be punished as specified in
subdivision (a) of Section 182.” (§ 182.5.)
The California Supreme Court has identified five differences between the two
types of criminal conspiracies. First, whereas a traditional conspiracy “encompasses a
stand-alone agreement by former strangers to commit a single crime,” a conviction under
section 182.5 requires proof the defendant is “an active gang participant with knowledge
of other members’ pattern of criminal gang activity.” (People v. Johnson, supra, 57
Cal.4th at pp. 261–262.) Second, a section 182.5 conspiracy “relates only to the
commission of a felony.” (Johnson, at p. 262.) In contrast, section 182, subdivision
(a)(1), refers to “any crime” and thus applies to conspiracies to commit misdemeanors.
(Johnson, at p. 262.)
14.
“Third, traditional conspiracy requires both the specific intent to
agree, and specific intent to commit a target crime. [Citation.] A [section]
182.5 conspiracy does not require any prior agreement among the
conspirators to promote, further, or assist in the commission of a particular
target crime. Even without a prior agreement, an active and knowing gang
participant who acts with the required intent to promote, further, or assist in
the commission of a felony by other gang members can violate section
182.5. That act of assistance or promotion replaces the required prior
agreement to commit a crime that is ordinarily at the heart of a traditional
conspiracy.” (People v. Johnson, supra, 57 Cal.4th at p. 262.)
“Fourth, traditional conspiracy liability attaches once an overt act is committed. A
[section] 182.5 conspiracy requires the actual commission of felonious criminal conduct
as either an attempt or a completed crime.” (People v. Johnson, supra, 57 Cal.4th at p.
262.)
“Fifth, section 182.5 brings within its ambit not only a gang member
who promotes, furthers, or assists in the commission of a felony. It also
embraces an active and knowing participant who merely benefits from the
crime’s commission, even if he or she did not promote, further, or assist in
the commission of that particular substantive offense. This constitutes a
substantial expansion of a traditional conspiracy application. The ‘one who
benefits’ provision recognizes that gang activities both individually and
collectively endanger the public and contribute to the perpetuation of the
gang members’ continued association for criminal purposes. Due to the
organized nature of gangs, active gang participants may benefit from crimes
committed by other gang members. When such benefits are proven along
with the other elements of the statute, section 182.5 permits those
benefitting gang participants to be convicted of conspiracy to commit the
specific offense from which they benefitted.”2 (Johnson, supra, 57 Cal.4th
at p. 262.)
2The Johnson opinion does not address the seeming discrepancy between the third and
fifth precepts. It is said the “act of assistance or promotion replaces the required prior agreement
to commit a crime that is ordinarily at the heart of a traditional conspiracy” (People v. Johnson,
supra, 57 Cal.4th at p. 262), yet liability may be imposed upon an “active and knowing [gang]
participant who merely benefits from the crime’s commission, even if he or she did not promote,
further, or assist in the commission of that particular substantive offense.” (Ibid.) However, one
who “merely benefits from the crime’s commission” cannot be found guilty unless “such benefits
are proven along with the other elements of the statute.” (Ibid.) It is unclear to us how a
defendant who merely benefits from a crime committed by his or her fellow gang members can
be prosecuted under section 182.5 if the defendant did not also promote, further, or assist in the
15.
B. Sufficiency of the Evidence
The verdict form for count 20 indicates defendant was convicted of “criminal
street gang conspiracy, to wit: robbery-in concert, in violation of … sections 182.5,
212.5, and 213.” (Full capitalization omitted.) Defendant’s argument for reversal is
based on the following statements in Johnson: “[T]raditional conspiracy liability attaches
once an overt act is committed. A [section] 182.5 conspiracy requires the actual
commission of felonious criminal conduct as either an attempt or a completed crime.”
(People v. Johnson, supra, 57 Cal.4th at p. 262.) Since neither he nor his fellow gang
members committed an actual robbery, defendant claims the evidence is insufficient to
support the conviction.
The People agree with defendant but also contend “the conviction may be
modified to criminal street gang conspiracy to commit attempted home invasion robbery
to conform the verdict to the facts as found by the jury.” Defendant makes a qualified
concession, stating “the possibility of reducing the gang conspiracy offense to the lesser
included offense of gang conspiracy to commit attempted home invasion robbery would
arise” if this court finds sufficient evidence to support the count 163 verdict of attempted
first degree robbery, which we have done. However, defendant maintains the “gang
conspiracy” conviction must still be reversed because of instructional error (see further
discussion, post).
Under sections 1181 and 1260, “an appellate court that finds that insufficient
evidence supports the conviction for a greater offense may, in lieu of granting a new trial,
modify the judgment of conviction to reflect a conviction for a lesser included offense.”
(People v. Navarro (2007) 40 Cal. 4th 668, 671.) Attempted robbery is a lesser included
offense of robbery. (People v. Crary (1968) 265 Cal. App. 2d 534, 540; see People v.
Webster (1991) 54 Cal. 3d 411, 443 [“The jury received instructions correctly defining
commission of the required felony. Since defendant assisted in felonious conduct, we need not
reach this issue.
16.
robbery and the lesser included offenses of attempted robbery”].) In a traditional
conspiracy case, the defendant may be convicted of conspiring to commit a lesser crime
included in the alleged target offense. (See People v. Fenenbock (1996) 46 Cal. App. 4th
1688, 1706 [“the trial court has a sua sponte obligation to instruct on lesser included
target offenses if there is evidence from which the jury could find a conspiracy to commit
a lesser offense”].) Despite these principles, the modification issue is not as
straightforward as it might appear.
On the one hand, Johnson instructs that section 182.5 “requires the actual
commission of felonious criminal conduct as either an attempt or a completed crime.”
(People v. Johnson, supra, 57 Cal.4th at p. 263, italics added.) On the other hand,
Johnson seems to accept as true the conclusion of People v. Iniguez (2002) 96
Cal. App. 4th 75, which holds that conspiracy to commit an attempt crime “is a conclusive
legal falsehood” and “nonexistent offense” because the underlying agreement would
contemplate nothing more than “an ineffectual act.” (Id. at p. 79.) Moreover, “[n]o one
can simultaneously intend to do and not do the same act.” (Ibid.)
In Johnson, the California Supreme Court restated the holding of People v. Iniguez
as follows: “[U]nder a traditional conspiracy approach, one cannot conspire to try to
commit a crime. An agreement to commit a crime is required, even if nothing more than
an overt act is ultimately done.” (People v. Johnson, supra, 57 Cal.4th at p. 264.) Does
the high court’s reference to the “traditional conspiracy approach” indicate a different
rule applies to section 182.5? The parties believe it does. Courts have long understood
the essence of a conspiracy to be the unlawful agreement (e.g., People v. Marsh (1962)
58 Cal. 2d 732, 743), but, as the People point out, Johnson holds no such agreement is
required to satisfy the elements of section 182.5. The “act of assistance or promotion
replaces the required prior agreement to commit a crime that is ordinarily at the heart of a
traditional conspiracy.” (Johnson, at p. 262.) The People thus submit “it is possible to be
guilty of a criminal street gang conspiracy to commit an attempted offense.”
17.
Based on Johnson and principles of stare decisis, we accept the parties’ position.
Section 182.5 requires proof of actual felonious conduct, and the evidence is insufficient
to establish commission of the alleged offense (first degree robbery) by defendant or his
fellow gang members. However, there is substantial evidence of defendant’s commission
of attempted first degree robbery, and such evidence satisfies the requirement of willful
promotion, furtherance, and/or assistance in the commission of a felony. Defendant does
not dispute the sufficiency of the evidence as to the remaining elements of the crime, and
we perceive no error in that regard. Therefore, notwithstanding defendant’s claim of
instructional error, count 20 may be modified to reflect a section 182.5 conviction
predicated upon the felonious conduct of attempted first degree robbery.
C. Instructional Error
Defendant alleges reversible error based on the use of conflicting instructions to
explain the gang conspiracy charge. The assertion of error is valid, but prejudice is
lacking.
There is no pattern instruction for the offense described in section 182.5.
However, the elements of a so-called gang conspiracy are nearly identical to those of
active participation in a criminal street gang. A side-by-side comparison of sections
182.5 and 186.22, subdivision (a) reveals the only material distinction to be the words “or
benefits from” in section 182.5.
Section 186.22, subdivision (a) provides:
“Any person who actively participates in any criminal street gang with
knowledge that its members engage in, or have engaged in, a pattern of
criminal gang activity, and who willfully promotes, furthers, or assists in
any felonious criminal conduct by members of that gang, shall be punished
by imprisonment in a county jail for a period not to exceed one year, or by
imprisonment in the state prison for 16 months, or two or three years.”
(Italics added.)
Section 182.5 provides:
18.
“Notwithstanding subdivisions (a) or (b) of Section 182, any person who
actively participates in any criminal street gang, as defined in subdivision
(f) of Section 186.22, with knowledge that its members engage in or have
engaged in a pattern of criminal gang activity, as defined in subdivision (e)
of Section 186.22, and who willfully promotes, furthers, assists, or benefits
from any felonious criminal conduct by members of that gang is guilty of
conspiracy to commit that felony and may be punished as specified in
subdivision (a) of Section 182.” (Italics added.)
The jury was instructed on the elements of section 182.5 with an adapted version
of CALCRIM No. 1400, which is “the standard jury instruction for the crime of active
participation in a criminal street gang.” (People v. Lamas (2007) 42 Cal. 4th 516, 525, fn.
7.) The written version was labeled “Criminal Street Gangs Instructions” and had a
subheading: “1400. Active Participation in Criminal Street Gang (Pen. Code,
§§ 186.22(a) 182.5)” (Boldface omitted; some capitalization omitted.) The first sentence
of the instruction said: “The defendant is charged in Count 20 with participating in a
criminal street gang in violation of … section 182.5.”
The CALCRIM No. 1400 instruction recited the elements of section 186.22,
subdivision (a) and defined the terms “criminal street gang,” “pattern of criminal gang
activity,”3 and “felonious criminal conduct.” The element of “active participation” was
correctly described as requiring proof of “involvement with a criminal street gang in a
way that is more than passive or in name only.” (See People v. Rodriguez (2012) 55
Cal. 4th 1125, 1130 [active participation means “participation that is more than nominal
or passive”].) The instruction further explained how willful assistance, furtherance, or
promotion of felonious conduct can be accomplished by “directly and actively
committing a felony offense” or “aiding and abetting a felony offense.” (See id. at pp.
1135–1136; People v. Ngoun (2001) 88 Cal. App. 4th 432, 435–437.)
3As explained in People v. Zermeno (1999) 21 Cal. 4th 927, “A gang engages in a ‘pattern
of criminal gang activity’ when its members participate in ‘two or more’ statutorily enumerated
criminal offenses (the so-called ‘predicate offenses’) that are committed within a certain time
frame and ‘on separate occasions, or by two or more persons.’” (Id. at p. 930.) The list of
qualifying offenses is found in section 186.22, subdivision (e)(1)–(33).
19.
Certain definitions were tailored to the People’s theory of the case, so the phrase
“pattern of criminal gang activity” was defined as the “commission of, attempted
commission of, conspiracy to commit, solicitation to commit, conviction of, or having a
juvenile petition sustained for the commission of: [¶] … any combination or two or more
of the following crimes, or two or more occurrences of one or more of the following
crimes: Assault, Conspiracy to Commit Assault, Murder, Attempted Murder, Robbery,
or Conspiracy to Commit Robbery.” The references to assault and murder accounted for
certain predicate offenses evidence introduced during trial. The People also relied on the
charged offenses and the convictions of gang members who had already pleaded out of
the case. (See People v. Tran (2011) 51 Cal. 4th 1040, 1046 [“a predicate offense may be
established by evidence of the charged offense”].)
The element of “felonious criminal conduct” was defined as “committing or
attempting to commit any of the following crimes: Conspiracy to Commit a crime, to
wit: Robbery - In Concert and Attempted Robbery - In Concert, Assault, Conspiracy to
Commit Assault, Murder, Attempted Murder, Robbery, or Prohibited Possession of a
Firearm.” The People concede this part of the instruction was “problematic” because the
assault and murder crimes, as well as the target offense of robbery, were factually
irrelevant.
Defendant’s claim is based on a separate instruction adapted from CALCRIM
No. 415 to explain traditional conspiracy principles. The jury was mistakenly told the
instruction applied to counts 19, 20, and 162. In fact, it only applied to counts 19 and 162
(conspiracy in violation of § 182). Defendant argues the jury may have relied on the
traditional conspiracy instruction to reach its verdict on count 20, which would mean it
failed to consider the elements of active participation and knowledge of a pattern of
criminal gang activity.
When a jury is misinstructed on the elements of a charge, reversal is required
unless the error was harmless beyond a reasonable doubt. (People v. Wilkins (2013) 56
20.
Cal.4th 333, 348.) “An instruction on an invalid theory may be found harmless when
‘other aspects of the verdict or the evidence leave no reasonable doubt that the jury made
the findings necessary’ under a legally valid theory.” (In re Martinez (2017) 3 Cal. 5th
1216, 1226.) Even in cases where the instructions omit an essential element, the error
may be deemed harmless if the evidence is “overwhelming and uncontroverted” “‘such
that the jury verdict would have been the same absent the error.’” (People v. Merritt
(2017) 2 Cal. 5th 819, 832, quoting Neder v. United States (1999) 527 U.S. 1, 17.)
Our analysis begins with defendant’s assumption the CALCRIM No. 1400
instruction was overlooked or disregarded. Jurors are presumed to follow the instructions
they are given (People v. Holt (1997) 15 Cal. 4th 619, 662), and this jury was told to
“[p]ay careful attention to all of the[] instructions and consider them together.” The jury
was further advised that some instructions might not apply depending on its factual
determinations, but there were no factual issues resolvable in such a way as to make
CALCRIM No. 1400 inapplicable. Moreover, a separate instruction on the gang
enhancement allegations (§ 186.22, subd. (b)) required the jury to cross-reference
CALCRIM No. 1400 in order to determine the existence of a “criminal street gang” and
the required “pattern of criminal gang activity.” The enhancements applied to all
remaining counts, including the charge of attempted first degree robbery, and each
allegation was found to be true.
Given the jury’s verdict on count 163 and the related gang enhancement finding,
defendant was necessarily found to have willfully promoted, furthered, and/or assisted in
the commission of attempted first degree robbery pursuant to a gang motive and/or in
association with gang members. (See § 186.22, subd. (b)(1).) Since the felonious
conduct required by section 182.5 was conclusively established, the error in failing to
instruct on potential liability for merely benefitting from such conduct was clearly
harmless. The references to other crimes such as assault and murder were harmless for
the same reason.
21.
We also consider the arguments of counsel in assessing the potential impact of the
instructions. (People v. Young (2005) 34 Cal. 4th 1149, 1202.) Although the instruction
on traditional conspiracy liability erroneously referenced count 20, the People’s closing
argument correctly explained the elements of section 182.5. The prosecutor said, “[F]or
criminal street gang conspiracy, you have to be actively participating in the gang. …
Here did we see that with [defendant]? We did. He was actively involved in what was
going on. He was in the car going to do it.” The prosecutor also highlighted the
knowledge requirement: “[W]hat you need is any person who actively participates with
knowledge as [sic] members engage in or have engaged in the pattern of criminal gang
activity. This case satisfies that. They’re plotting and planning these robberies. They’re
all gang members. They’re all active participants. I think it’s pretty much satisfied.”
Lastly, we look to the uncontroverted evidence of defendant’s active participation
and knowledge of a pattern of criminal gang activity by Norteños. Active participation
can be proven by evidence of gang tattoos, self-admission of gang membership, contacts
with a criminal street gang and/or its members, gang-related contacts with police, and
being in the company of a known gang member while committing a charged offense.
(See People v. Castenada (2000) 23 Cal. 4th 743, 752–753; People v. Williams (2009)
170 Cal. App. 4th 587, 626; People v. Garcia (2007) 153 Cal. App. 4th 1499, 1511.)
Knowledge of gang members engaging in a pattern of criminal gang activity is generally
inferable from the same evidence showing a defendant’s active participation in the gang.
(People v. Carr (2010) 190 Cal. App. 4th 475, 489.)
The People’s gang expert opined defendant was an active Norteño based on his
gang tattoos and involvement in the current case. The tattoos included Norteño imagery
(the “huelga bird”) on his neck and shoulder, the letters ESVR on his stomach
(purportedly connoting the East Side Varrio Reedley subset) and the words “puro Norte,”
meaning pure North, on his neck. The People’s evidence conclusively proved two of
defendant’s accomplices, Sergio Heredia and Juan Hinojosa, were convicted of gang-
22.
related conspiracy to commit robbery charges based on their respective roles in this case.
Both men had been inside the Nissan Altima with defendant immediately prior to his
arrest, and Hinojosa was proven to be a Norteño gang member (Heredia’s membership
was implied but not directly addressed in the trial testimony). Defense counsel avoided
mentioning the gang evidence against his client but referred to the accomplices as
“gangsters” during closing argument.
In light of the uncontroverted gang evidence and the jury’s verdicts on other
counts, a different result on count 20 is inconceivable. Defendant’s commission of
attempted robbery satisfied the “felonious criminal conduct” element of section 182.5 and
was also a qualifying offense for purposes of the “pattern of criminal gang activity”
(§ 186.22, subd. (e)(2)). Defendant acted in concert with other gang members who were
convicted of qualifying offenses based on the same incident, which plainly demonstrated
his active gang participation and knowledge of a pattern of criminal gang activity. It is
evident, beyond a reasonable doubt, the verdict was not attributable to the instructional
error. The judgment will be modified to reflect a violation of section 182.5 based on the
act of attempted first degree robbery, and defendant shall be resentenced accordingly.
III. Duplicative Convictions
Counts 19 and 162 alleged conspiracy to commit home invasion robbery, i.e.,
traditional conspiracy liability under section 182, subdivision (a)(1). At trial, the People
argued the agreement to commit robbery at two locations constituted two separate
conspiracies. Defendant maintains the evidence showed only one conspiracy to commit
two robberies. The Attorney General concedes this issue, and we accept the concession
as appropriate. (See People v. Meneses (2008) 165 Cal. App. 4th 1648, 1669 [“it is the
number of the agreements (not the number of the victims or number of statutes violated)
that determine the number of the conspiracies”]; People v. Lopez (1994) 21 Cal. App. 4th
1551, 1557 [“‘One agreement gives rise to only a single offense, despite any multiplicity
23.
of objects’”].) Therefore, count 162 will be reversed for insufficient evidence. The
corresponding sentence is ordered vacated and the charge shall be dismissed.
IV. Sentencing
Defendant was sentenced to 35 years to life in prison for the count 19 conviction
of (traditional) conspiracy to commit home invasion robbery. The sentence was imposed
pursuant to section 186.22, subdivision (b)(4)(B), under which the punishment for a
gang-related home invasion robbery is 15 years to life, and section 182, subdivision (a),
under which conspiracy to commit a felony is “punishable in the same manner and to the
same extent as is provided for the punishment of that felony.” The base term was
doubled because of a prior strike and increased by five years because of a prior serious
felony conviction.
A consecutive 19-year prison sentence was imposed for count 163 (attempted
home invasion robbery), which represented one-half of the upper term of nine years
(§§ 213, subd. (a)(1)(A), 664, subd. (a)) doubled for the prior strike and increased by a
five-year gang enhancement (§ 186.22, subd. (b)(1)(B)) and the five-year prior serious
felony conviction enhancement (§ 667, subd. (a)). Punishment on all other counts was
either stayed or ordered to be served concurrently. The two prior prison term
enhancements (former § 667.5, subd. (b)) were ordered stayed pursuant to section 654.
A. Count 19
As discussed, home invasion robbery ordinarily carries a maximum punishment of
nine years in prison. (§ 213, subd. (a)(1)(A).) If the offense is found to be gang related
for purposes of section 186.22, the punishment is life in prison with a minimum parole
ineligibility period of 15 years. (§ 186.22, subd. (b)(4)(B).) “Section 186.22, subdivision
(b)(4)(B) is not an enhancement, but rather an ‘alternate penalty provision,’ meaning it
sets forth an alternate penalty for the underlying offense if the jury finds the conditions
24.
specified in the provision have been satisfied.” (People v. Leon (2016) 243 Cal. App. 4th
1003, 1011, fn. 8.)
Section 182 requires a convicted conspirator to be punished “‘in the same manner
and to the same extent as is provided for the punishment of’ the underlying target
offense.” (People v. Ruiz (2018) 4 Cal. 5th 1100, 1119.) Defendant argues this
sentencing mandate does not apply to a conspiracy among gang members to commit
home invasion robbery. The issue presented requires statutory interpretation.
“By voting for Proposition 21 (Gang Violence and Juvenile Crime Prevention Act
of 1998, eff. Mar. 8, 2000), the electorate created six new life-term gang-related felony
offenses.” (People v. Florez (2005) 132 Cal. App. 4th 314, 319.) Four of those offenses
are listed in section 186.22, subdivision (b)(4)(B). If committed “for the benefit of, at the
direction of, or in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members,” the alternate
penalty applies to home invasion robbery, carjacking, a felony violation of section 246
(shooting at an occupied dwelling, building, or vehicle), and violations of section
12022.55 (discharging a firearm from a vehicle under specified circumstances).
(§ 186.22, subd. (b)(4)(B).)
“‘It is a general rule of statutory construction that the courts will interpret a
measure adopted by vote of the people in such manner as to give effect to the intent of the
voters adopting it. [Citation.] It must be held that the voters judged of the amendment
they were adopting by the meaning apparent on its face according to the general use of
the words employed.’” (Kaiser v. Hopkins (1936) 6 Cal. 2d 537, 538.) Basically, courts
are bound by a statute’s plain meaning. “If the language is clear and unambiguous there
is no need for construction, nor is it necessary to resort to indicia of the intent of the
Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by
the voters).” (Lungren v. Deukmejian (1988) 45 Cal. 3d 727, 735; see People v. Birkett
25.
(1999) 21 Cal. 4th 226, 231 [the plain meaning rule applies to unambiguous statutory
language unless it would lead to absurd results].)
Defendant states his position thusly: “On its face, the plain language of section
186.22, subdivisions [(b)(4)] [and] (b)(4)(B), indicates these subdivisions only apply to
the completed forms of the enumerated offenses simply because it does not list
conspiracies.” Anticipating we might view the statutory language as ambiguous,
defendant’s briefing contains several pages of argument on the topic of voter intent. We
agree the statutory language is unambiguous. However, under the rationale of People v.
Athar (2005) 36 Cal. 4th 396, we presume any intent to exclude conspiracy liability from
the purview of section 186.22, subdivision (b)(4)(B) would be expressly stated therein,
which it is not. (See Athar, at p. 401.)
In Athar, the appellant was convicted of conspiring to commit money laundering
under circumstances that would have triggered the enhancement provisions of section
186.10, subdivision (c) had the conspiracy reached fruition. (People v. Athar, supra, 36
Cal.4th at pp. 398–399.) “The Court of Appeal majority upheld [the] conspiracy
conviction and application of the money laundering enhancement based on the fact that
conspirators under section 182, subdivision (a), must be punished ‘in the same manner
and to the same extent’ as those convicted of the ‘target felony,’ i.e., money laundering.”
(Id. at pp. 400–401.) The appellate court “observed that ‘[h]ad the Legislature intended
to apply the money laundering enhancements to only those persons convicted of the
substantive offense of money laundering, it would have so provided in subdivision (c) of
section 186.10.’ Therefore, … because the Legislature did not exclude conspiracy
actions from the enhancement provisions, the enhancement … was mandatory.” (Id. at p.
401.) This reasoning was endorsed by a four-justice majority of the California Supreme
Court, which concluded sentencing under the conspiracy statute “is not limited to the
base term of [the target] offense.” (Id. at p. 406.)
26.
The majority opinion in Athar distinguishes People v. Hernandez (2003) 30
Cal. 4th 835 (Hernandez), where the issue was whether the death penalty or life without
parole (LWOP) could be imposed for conspiracy to commit murder under special
circumstances. (People v. Athar, supra, 36 Cal.4th at pp. 402–404.) Pursuant to section
182, the applicable punishment is “that prescribed for murder in the first degree.” (Id.,
subd. (a).) In the absence of special circumstances, first degree murder is punishable by a
prison term of 25 years to life. (§§ 190, subd. (a), 190.2.) Based on a variety of factors,
including grave concerns over the constitutionality of imposing capital punishment for
crimes not resulting in death, Hernandez concluded the special circumstance provisions
do not apply to conspiracy to commit murder. (Hernandez, supra, at pp. 864–870.)
Here, as in Athar, the statute at issue “does not involve imposition of the death penalty
without a murder, or any penalty that would raise serious constitutional concerns.”
(Athar, at p. 404.)
Defendant notes the money laundering statute can be violated by merely
attempting to engage in the prohibited conduct (§ 186.10, subd. (a)), so the result in Athar
did not create an alternative consequence for conspiring, as opposed to attempting, to
engage in the proscribed behavior. The Athar majority made the same observation while
distinguishing Hernandez. (People v. Athar, supra, 36 Cal.4th at p. 404.) However, a
lack of disparity in the punishments for conspiracy and attempt is an uncommon scenario.
By legislative design, conspiracy to commit a crime is ordinarily punished twice
as severely as an attempt to commit the same target offense. (See §§ 182, subd. (a), 664,
subd. (a).) Harsher punishment for conspiracy is justified by “the likelihood that the
criminal object successfully will be attained” and the danger of collateral consequences,
namely, “‘the commission of crimes unrelated to the original purpose for which the
combination was formed.’” (People v. Morante (1999) 20 Cal. 4th 403, 416, fn. 5,
quoting Callanan v. United States (1961) 364 U.S. 587, 594.) “Collaboration in a
27.
criminal enterprise significantly magnifies the risks to society by increasing the amount
of injury that may be inflicted.” (Morante, at p. 416, fn. 5.)
The punishment for attempt is typically “one-half the term of imprisonment
prescribed upon a conviction of the offense attempted,” but not for attempted willful and
premeditated murder. (§ 664, subd. (a).) In Hernandez, the high court examined the
interplay between section 182 and the statutory scheme governing murder under special
circumstances, the latter of which had been enacted at a time when attempted willful and
premeditated murder was punishable by a determinate prison term ranging from five to
nine years. (Hernandez, supra, 30 Cal.4th at pp. 867–868.) There was no reason to
believe the electorate intended to establish the grossly disparate punishment of death or
LWOP for any type of murder conspiracy. (Ibid.) An analogous dichotomy does not
exist with regard to the punishment for attempted gang-related home invasion robbery
and the penalty set forth in section 186.22, subdivision (b)(4)(B).
We conclude section 186.22, subdivision (b)(4)(B) merely states the punishment
for a conviction of gang-related home invasion robbery. There are no further inferences
to be drawn from its plain language. Likewise, “[t]he general plain meaning expressed in
section 182, subdivision (a), that a conspirator will be punished in the same manner and
to the same extent as one convicted of the underlying felony, does not require additional
legislative clarity.” (People v. Athar, supra, 36 Cal.4th at p. 405.)
The jury below returned a guilty verdict on the charge of conspiracy to commit
home invasion robbery. It also found defendant committed the offense “for the benefit
of, at the direction of, or in association with a criminal street gang [and] with the specific
intent to promote, further, and assist in criminal conduct by gang members within the
meaning of [sections] 186.22(b)(1) and 186.22(b)(4).” The penalty for the target offense
is set forth in section 186.22, subdivision (b)(4)(B), and the trial court did not err by
sentencing defendant “in the same manner and to the same extent as is provided for the
punishment of that felony” (§ 182, subd. (a)).
28.
B. Senate Bill No. 1393
On September 30, 2018, the Governor approved Senate Bill No. 1393 (2017–2018
Reg. Sess.), which amended sections 667 and 1385. The legislation went into effect on
January 1, 2019. (Stats. 2018, ch. 1013, §§ 1–2.) As a result, trial courts now have
discretion under section 1385 to strike or dismiss the five-year sentencing enhancement
prescribed by section 667, subdivision (a) for prior serious felony convictions.
The parties agree Senate Bill No. 1393 applies retroactively to nonfinal judgments.
Absent evidence to the contrary, it is presumed the Legislature intended statutory
amendments reducing the punishment for a crime to apply retroactively to defendants
whose judgments are not yet final on the statute’s operative date. (People v. Brown
(2012) 54 Cal. 4th 314, 323; In re Estrada (1965) 63 Cal. 2d 740, 745.) Consistent with
the case law on this issue, we accept the parties’ position. (E.g., People v. Bernal (2019)
42 Cal. App. 5th 1160, 1173; People v. Garcia (2018) 28 Cal. App. 5th 961, 973.)
Therefore, at the time of resentencing in light of the reversal of count 162 and
modification of count 20, the trial court shall consider whether to exercise its discretion
to strike any of the prior serious felony conviction enhancements.
C. Miscellaneous Issues
The parties identify an error in the abstract of judgment regarding the number of
prior serious felony conviction enhancements imposed at sentencing. Since resentencing
will occur on remand, a new abstract of judgment will be prepared. Therefore, the issue
is moot.
The parties raise no issues with regard to the prior prison term enhancements, but
we note the trial court erred by staying the punishment for those enhancements. When an
allegation based on section 667.5, subdivision (b) is found to be true, the trial court must
either impose the additional prison term or strike the enhancement. (People v. Langston
(2004) 33 Cal. 4th 1237, 1241.) Furthermore, effective January 1, 2020, the one-year
enhancement provided for in section 667.5, subdivision (b) is inapplicable to all prior
29.
prison terms except those served for a sexually violent offense within the meaning of
Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1
[Sen. Bill No. 136 (2019–2020 Reg. Sess.)].) We leave it to the parties to address these
issues on remand.
DISPOSITION
As to count 162 only, the judgment is reversed for insufficient evidence. As to
count 20, the judgment is ordered modified to reflect a conviction of violating section
182.5 based on the felonious conduct of attempted first degree robbery within the
meaning of sections 211, 212.5, subdivision (a), and 213, subdivision (a)(1)(A). The
matter is remanded for resentencing, at which time the trial court shall determine whether
to exercise its discretion to strike or dismiss one or more prior serious felony conviction
enhancements as authorized by section 1385. Upon conclusion of the further
proceedings, the trial court shall prepare an amended abstract of judgment and forward a
copy to the Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
___________________________
PEÑA, J.
WE CONCUR:
__________________________
FRANSON, Acting P.J.
__________________________
SMITH, J.
30. | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2261761/ | 618 A.2d 169 (1992)
Maxford WOLFE, Personal Representative, Appellant,
v.
Ben S. FINE, M.D., Appellee.
No. 91-CV-520.
District of Columbia Court of Appeals.
Argued June 24, 1992.
Decided December 30, 1992.
*170 Louis Rabil, with whom Robert J. Stanford, Washington, DC, was on the brief, for appellant.
James P. Gleason, Jr., with whom Nancy B. McKeown, Rockville, MD, and John L. Seibel, Bethesda, MD, were on the brief, for appellee.
Before STEADMAN, SCHWELB and SULLIVAN, Associate Judges.
STEADMAN, Associate Judge:
Before us is an appeal from a dismissal with prejudice for want of prosecution of a medical malpractice action against appellee Dr. Ben S. Fine. We are not quite convinced on the present record before us that the trial court's action was undertaken in full compliance with our existing case law governing dismissals with prejudice for want of prosecution and therefore must vacate the order and remand for further proceedings consistent with this opinion.
I
Ingrid Wolfe, the original plaintiff in this action,[1] first sought treatment for pain above her right eye from her health maintenance organization, Kaiser Permanente Foundation Health Plan of the Mid-Atlantic States, Inc. ("Kaiser"), in May of 1986. Dissatisfied with the diagnosis of migraine headaches and sinus problems, Ms. Wolfe consulted Dr. Fine, a specialist in ophthalmology, on June 4, 1986, to whom she again related her symptoms. After conducting a general eye examination, but not a CT (computerized tomography) scan, Dr. Fine concluded that Ms. Wolfe suffered from migraine headaches and sinus problems that possibly were exacerbated by an allergy. Ms. Wolfe returned to Kaiser approximately 10 months later, in April 1987, complaining of a loss of vision as well as pain above her eye. A CT scan performed at this time revealed a mass behind the right eye, which was later diagnosed as adenocarcinoma of the lacrimal gland, a particularly rare form of lacrimal gland cancer. The complaint alleged that Kaiser and Dr. Fine were negligent in failing to diagnose Ms. Wolfe's condition promptly and to take certain diagnostic steps, including a CT scan, that allegedly would have revealed the lacrimal gland adenocarcinoma nearly a full year prior to its actual discovery.[2]
*171 On April 11, 1989, appellant identified Dr. Mary Stefanyszyn as an expert witness on the issue of causation pursuant to Super.Ct.Civ.R. 26(b)(4). Dr. Stefanyszyn's 26(b)(4) statement explained that she would testify that a timely CT scan would have revealed the cancerous mass, that prompt treatment thereafter more probably than not would have cured the decedent of the cancerous conditions, and that the failure to conduct a CT scan would to a reasonable degree of medical certainty result in her death. At her deposition, Dr. Stefanyszyn made clear that her testimony on causation would be based on the work of a Dr. John Wright, a British surgeon and researcher.[3] According to Dr. Stefanyszyn, Dr. Wright had achieved a 70% cure rate in promptly treating lacrimal gland adenocarcinoma, and that the chances of survival dropped from 50% if the cancer was diagnosed within six months of the onset of symptoms to near 0% if more than a year passed without diagnosis.
Thereafter, on November 6, 1989, Dr. Fine filed a supplemental Rule 26(b)(4) statement identifying Dr. Wright as his expert witness on the issue of causation. Dr. Wright's statement explained that:
[Dr. Wright] is expected to state his opinion that there are insufficient numbers of cases of lacrimal gland adenocarcinoma reported in the literature for any researcher to make conclusive statements regarding survival rates from this disease process....
Dr. Wright is also expected to testify that the figures cited by plaintiff's expert, Dr. Stefanyszyn, in support of the general conclusions stated in her deposition regarding cure rates and/or survival rates are invalid. The conclusions reached by Dr. Stefanyszyn cannot be properly extrapolated from Dr. Wright's work.
On December 6, 1990, thirteen months after Dr. Fine had filed the supplemental Rule 26(b)(4) statement listing Dr. Wright as a proposed witness, appellant took Dr. Wright's deposition.[4] In the deposition, Dr. Wright characterized as "ridiculous" Dr. Stefanyszyn's conclusion that he could achieve a 70% cure rate by operating on lacrimal gland adenocarcinoma within six months of its development. More fundamentally, Dr. Wright testified that starting about two months subsequent to the filing of his Rule 26(b)(4) statement he began to conduct a ten-year follow-up analysis of research on lacrimal gland cancer that he had published in a 1982 article, and that his colleagues, who had reviewed slides of the previously-diagnosed lacrimal gland cancers as part of the follow-up review, had eventually concluded that only one or two of the ten cancers identified in the 1982 article as adenocarcinoma of the lacrimal gland, and only four or five of all the lacrimal gland cancers Dr. Wright had treated in the past 22 years, actually were lacrimal gland adenocarcinoma.[5] Thus, whereas Dr. Stefanyszyn's testimony had been based on her understanding that Dr. Wright had treated 20 cases of lacrimal gland adenocarcinoma overall, 10 of which were discussed in his 1982 article, the follow-up analysis indicated that Dr. Wright had in fact encountered only one-fifth to one-quarter of that number.
When counsel for appellant revealed to Dr. Stefanyszyn in January 1991 that Dr. *172 Wright had effectively repudiated the underlying data relating to lacrimal gland adenocarcinoma in his 1982 article and that gathered after that time, Dr. Stefanyszyn withdrew as a witness, leaving appellant in the view of both parties and the trial court without an expert witness on the issue of causation. On February 27, 1991, about six weeks prior to the scheduled trial date, counsel for appellant filed a "motion to defer trial for additional discovery," in order to give appellant time to have an ophthalmologist, who had indicated a willingness to undertake the project, develop a database of cases of adenocarcinoma of the lacrimal gland that would enable him to reach conclusions on the importance of early diagnosis to the successful treatment of lacrimal gland adenocarcinoma. The motion also identified a second ophthalmologist as someone who thought such a project could contribute to the filed of ophthalmology.[6] If such a database could not be developed, appellant indicated that he would seek to draw analogies from comparable adenocarcinomas of other organs.[7]
At a March 7, 1991 hearing on appellant's motion, the trial court found that Dr. Wright's 26(b)(4) statement "put [appellant] on notice that there was a serious problem and that [appellant was] wrong not to take [Dr. Wright's] deposition right away." However, it postponed taking any action at that time, and instead ordered appellant to depose the two specialists whom appellant had identified in his motion to determine whether "there is a reasonable likelihood that the results will be that [they] can conclude to a reasonable degree of medical certainty" that early diagnosis would lead to successful treatment of lacrimal gland adenocarcinoma.[8]
On March 18, the trial court held an unrecorded telephone conversation with the parties, at which time the case apparently was removed from the trial calendar.[9] When the parties reconvened before the trial court on April 8, the originally scheduled trial date, the trial court reviewed the deposition testimony of Drs. Cooper and Miller and concluded that their testimony did not meet the standard articulated on March 7. The trial court also reiterated its earlier conclusion that Dr. Wright's Rule 26(b)(4) statement put appellant on notice of the need to take some action, such as deposing Dr. Wright or providing Dr. Stefanyszyn with a copy of Dr. Wright's 26(b)(4) statement, to ensure that appellant would have an expert on causation at the time of trial. The trial court then indicated that it intended to dismiss the case for want of prosecution because appellant was not ready to proceed to trial. After hearing final arguments from counsel, the trial court reaffirmed the decision to dismiss.
II
The factors to be considered in appellate review of a trial court's dismissal of a case for want of prosecution under Super.Ct.Civ.R. 41(b)[10] have been recently recapitulated:
*173 As a general matter, dismissal under Rule 41(b) lies within the exercise of the trial court's discretion, which this court will not disturb absent clear evidence of abuse. Given the severity of dismissal as a sanction, however, and the oft-stated preference for trial on the merits, this discretion must be exercised carefully and in accordance with standards identified in our cases. Thus, dismissal should be adopted as a remedy only in extreme circumstances and only after the trial court has considered lesser sanctions. The inquiry should include whether the conduct calling for sanctions was willful and whether the other party was prejudiced by it, and the sanction imposed should, wherever possible, be tailored to the offense. These factors serve as a basis for determining whether or not the trial court has abused its discretion.
Techniarts Video, supra note [10], 572 A.2d at 1054 (citations omitted); see also Granville v. Hunt, 566 A.2d 65 (D.C.1989). Furthermore, at least as a general proposition, "[d]ismissal with prejudice is an appropriate sanction only upon `clear evidence of deliberate delay' or upon a showing of `contumacious conduct by the plaintiff.'" Granville, supra, 566 A.2d at 66 (quoting LaPrade v. Lehman, 490 A.2d 1151, 1155 (D.C.1985)) (citation omitted). See also Durham v. District of Columbia, 494 A.2d 1346, 1350 (D.C.1985). When the conduct calling for sanctions consists of delay, other relevant factors include the length of the delay and the resulting prejudice, if any, to the defendant. Granville, supra, 566 A.2d at 66 n. 2 (citing Battle v. Jackson, 476 A.2d 1143, 1145 (D.C.1984)).
These factors do not appear to readily lend solid support to the trial court's order of dismissal with prejudice in this case. The trial court's statements fall short of any finding that appellant engaged in "deliberate delay" or "contumacious conduct" by failing to inform Dr. Stefanyszyn of Dr. Wright's expected testimony or by failing to locate another expert witness on the issue of causation. Rather, the trial court stated that counsel's failure to send a copy of Dr. Wright's Rule 26(b)(4) statement to Dr. Stefanyszyn, which Dr. Stefanyszyn stated might have led her to reconsider whether she should testify, constituted "negligence," and that counsel was "wrong" not to take Dr. Wright's deposition immediately after his Rule 26(b)(4) statement was filed. We similarly cannot conclude, and the trial court did not find, that appellant's delay in taking Dr. Wright's deposition was deliberate. The crucial sentence in Dr. Wright's Rule 26(b)(4) statement, to the effect that the figures relied on by Dr. Stefanyszyn were invalid, quite reasonably could be read as implying disagreement with Dr. Stefanyszyn's assessment of survival rates, rather than as a repudiation of the underlying data. On this point, we note that the record contains unrebutted evidence that the review of the cases previously diagnosed as lacrimal gland adenocarcinoma did not begin until two months after Dr. Wright's Rule 26(b)(4) statement was filed, thereby undercutting any claim that the data were in fact known to be invalid at the time the statement was filed, or that immediately taking Dr. Wright's deposition would have led appellant to discover that the data were invalid. Under these circumstances, the failure to search for another expert on causation after receiving Dr. Wright's Rule 26(b)(4) statement does not appear to be "contumacious conduct." In Techniarts, supra, 572 A.2d at 1055, this court reversed a dismissal order where the trial court failed to identify the precise conduct it considered to be willful and this court's independent review of the record revealed nothing rising to the level of deliberate misrepresentation. We face a possibly somewhat similar situation here.
The record is similarly lacking in evidence of prejudice to Dr. Fine. Dr. Fine advanced no specific claim of prejudice, and the trial court's statements suggest that it viewed the prejudice to Dr. Fine in terms of the increased costs of litigation resulting *174 from the grant of a continuance. However, increased litigation costs do not constitute prejudice in the sense of damage to the presentation of a defense. See Braxton v. Howard University, 472 A.2d 1363, 1366 (D.C.1984) (one-year delay in answering interrogatories, though "flagrant," did not warrant dismissal; any resulting increase in costs and attorney's fees was not "genuine prejudice," but was recoverable under Super.Ct.Civ.R. 37). Prejudice may not be readily inferred from the length of delay alone. See Granville, supra, 566 A.2d at 68 (trial court's finding of prejudice inherent in length of delay in and of itself not a careful exercise of discretion).
Finally and importantly, there is no evidence that the trial court considered an alternative to dismissal with prejudice. We have previously held that the trial court is obliged to consider whether less severe sanctions would be more appropriate. See, e.g., Durham v. District of Columbia, supra, 494 A.2d at 1350; District of Columbia v. Greene, 539 A.2d 1082, 1084 (D.C. 1988); Garces v. Bradley, 299 A.2d 142, 144-45 (D.C.1973). In light of the trial court's concern over the costs of continued litigation to Dr. Fine, one lesser sanction might have involved shifting to appellant Dr. Fine's costs resulting from the delay. See LaPrade v. Lehman, 490 A.2d 1151, 1156 (D.C.1985) (assessment of defendant's costs and reasonable fees against plaintiff is alternative sanction to dismissal). Other sanctions, such as sanctions placed directly on appellant's attorney or a dismissal conditioned on the failure of the study to suggest a causal link between early diagnosis and successful treatment or, most particularly, a dismissal without prejudice[11], were available for the trial court to consider as well. See id. Such lesser sanctions might particularly be considered where the length of delay does not seem inordinate. Here, the period between the filing and dismissal of the complaint was less than three years (August 1988 to April 1991), during which time discovery was completed and a number of other pretrial matters attended to. Compare Brown v. Cohen, 505 A.2d 77 (D.C.1986) (45-month delay without taking any action after filing complaint warranted dismissal) with Granville, supra, 566 A.2d at 68 (after considering seven-year delay in light of likelihood of resulting prejudice, and referring to relevant statutes of limitations as indicators of what delay might create prejudice, court concluded that delay warranted dismissal of assault action but not of constructive trust action).
Dr. Fine argues that we should ignore the words of the trial court that it was dismissing the case for want of prosecution and instead should review the order solely under the somewhat less exacting factors governing appellate review of trial court rulings on motions for a continuance. See, e.g., M.M. & G., Inc. v. Jackson, 612 A.2d 186, 191 (D.C.1992). It is of course relevant to this dismissal for want of prosecution that it came in connection with a motion for continuance. But the record becomes somewhat murky. This was not an eleventh-hour request. In the March 7 hearing, the trial court held out a distinct hope that a continuance would be granted if some reasonable hope existed of developing a database of cases of the rare lacrimal gland adenocarcinoma to replace that repudiated by Dr. Wright, and plaintiff took significant steps to that end. In the middle of this effort, the case was apparently taken off the calendar, under circumstances that are not entirely clear of record. See note [9] supra.
Thus, this does not seem to be a clear situation where the plaintiff came to the day of trial on a last-minute request and nothing but blind hope of a continuance and knowing that if the continuance were denied, he would have to proceed forthwith. There is a certain logic to an approach whereby a trial court at that point denies a plaintiff's motion for a continuance and then lets the chips fall where they may. Plaintiff is squarely faced with two stark alternatives. He may proceed to trial as scheduled with whatever evidence he has, *175 and the trial court may make any merits ruling called for, such as on a motion for a directed verdict. Or he may refuse to proceed and risk the consequences, such as an involuntary dismissal, with or without prejudice, or some other sanction or result.
But a somewhat different course of events appears to have transpired in this case, as in part already indicated. Further, at the April 8 hearing, a spirited exchange first took place as to the inadequacy of appellant's prospective expert testimony.[12] The discussion evolved to the point where the question of whether to dismiss the complaint for want of prosecution became dominant, and the trial court never expressly ruled on the motion for a continuance in the course of the oral hearing.[13] A lastditch attempt by plaintiff to suggest that one of his experts might be able to testify in the future with some additional information short of a full-fledged study was summarily cut off. The dismissal with prejudice was a sua sponte action by the trial court; the response of appellee to the motion for a continuance showed that he sought no more than a denial of the continuance. The impact of the dismissal as a sanction for plaintiff's failure to move with diligence was also indicated by the trial court's refusal to consider appellee's oral motion for summary judgment in light of the apparent failure of proof occasioned by the absence of an expert.[14]
Thus, this case is different from Taylor v. Washington Hospital Center, 407 A.2d 585 (D.C.1979), cert. denied, 446 U.S. 921, 100 S.Ct. 1857, 64 L.Ed.2d 275 (1980), relied on by Dr. Fine. In Taylor, the trial court dismissed plaintiff's complaint when she refused to proceed to trial after the trial court denied: (1) her day-of-trial motions to amend her pretrial statement to allege new theories of liability and add a defendant to the action; and (2) her day-of-trial alternative motion for a continuance. The Taylor court viewed the principal issue on appeal as whether a Rule 41(b) dismissal was appropriate where the case had progressed to the day of trial and the plaintiff, disappointed by rulings of the court which were adverse to her case, refused to go forward. A key to this court's affirmance of the dismissal order and the related denial of the continuance was the plaintiff's failure to move for a continuance until the day of trial and her refusal to proceed to trial *176 when she could have done so on the other theories of negligence in issue and then challenged the adverse pretrial rulings on appeal if necessary. Indeed, every supporting authority cited by the Taylor court involved appeals from orders of dismissal based on continuance motions made at most several days before trial.
We are not unmindful of the serious problems presented by unwarranted delays in preparation for trial and are quite prepared to uphold appropriate actions taken pursuant to an on-the-record exposition of the reasoning leading to such actions and a close consideration of the factors contained in our case law. We do not rule out the possibility that the action here can be so supported, but believe this record insufficient to clearly do so. Accordingly, we must vacate the dismissal of appellant's complaint with prejudice and remand for further proceedings consistent with this opinion.
So Ordered.
SULLIVAN, Associate Judge, concurs in the result.
NOTES
[1] When Ms. Wolfe died during the course of the proceedings, her husband, the executor of her estate, was substituted as the named party and the complaint was amended to include causes of action for survival and wrongful death. The facts set forth are in the main taken from the allegations of the amended complaint.
[2] Appellant settled with Kaiser in early November, 1989, thereby limiting Kaiser's involvement in the litigation to defense of Dr. Fine's cross-claim for contribution against Kaiser.
[3] In Great Britain, surgeons are known as Mr., not Dr. We refer to "Dr. Wright" to avoid confusion. Dr. Stefanyszyn had trained with Dr. Wright while she was on a fellowship in that country.
[4] In the interim, Ms. Wolfe had died on June 12, 1990, leaving her husband and two minor children. See note [1] supra. Because of this death, the trial date set for September 5, 1990 was rescheduled for April 8, 1991. The trial date had once previously been rescheduled because of the death of Dr. Stefanyszyn's mother.
[5] As part of the review, one of Dr. Wright's colleagues apparently reviewed the slides for all of the cases of lacrimal gland cancer that Dr. Wright had observed some 50 or 51 in total including some observed after Dr. Wright's article was published in 1982. The slides for cases where the colleague's review resulted in a changed diagnosis were referred to a second colleague for verification of the diagnosis. It is not entirely clear from the record at what point in time this conclusion was reached. Dr. Wright testified that the follow-up analysis was still in progress at the time of his deposition in December 1990.
[6] According to the motion, Dr. Neil Miller, an ophthalmologist with 18 years experience who subspecialized in neuro-ophthalmology and orbital disease and was associated with the Wilmer Eye Clinic, Johns Hopkins Hospital, had agreed to assemble the database. The ophthalmologist who supported this effort was Dr. William Cooper, an ophthalmologist and orbital surgeon associated with Cornell Medical Center.
[7] The motion stated that it was "too late to resort" to these databases so close to trial.
[8] The trial judge appears to have derived this standard from Daniels v. Hadley Memorial Hospital, 185 U.S.App.D.C. 84, 92, 566 F.2d 749, 757 (1977), which held that a plaintiff alleging medical mismanagement of an already potentially fatal condition must present evidence sufficient for the finder of fact to conclude that the defendant's deviation from the standard of care was a "substantial factor" in causing the harm complained of.
[9] Although it is not reflected in the formal trial record, the fact that this action was taken (apparently stemming from appellant's indicating that he was not ready to proceed to trial) does not seem in dispute. However, the motion to continue the trial remained pending and unresolved.
[10] Rule 41(b) provides that "[f]or failure of the plaintiff to prosecute or to comply with these Rules or any order of Court ... the Court may, sua sponte, enter an order dismissing the action or any claim therein." This court previously has assumed that Rule 41(b) serves as a basis for a dismissal order where the trial court does not identify the rule under which it is dismissing the action but clearly is concerned with delays or misrepresentations connected with the prosecution of the litigation. See Techniarts Video, Inc. v. 1631 Kalorama Associates, 572 A.2d 1051, 1053 n. 10 (D.C.1990).
[11] The statute of limitations had not yet run on the wrongful death action. D.C.Code § 16-2702 (1989).
[12] The trial court in dismissing with prejudice stated that "[p]laintiff doesn't have an expert and has no likelihood of a reasonable nature of obtaining one." It might be noted that the test formulated at the March 7 meeting appears quite demanding in itself. Given the rarity of lacrimal gland adenocarcinoma and the apparent absence of any compilation of cases of that cancer once Dr. Wright's study had been repudiated, it is difficult to see how a proposed expert could testify with any precision, prior to performing the proposed study, to the degree of likelihood that the study would enable him to conclude the existence of the causal connection to a reasonable degree of medical certainty. To prejudge the outcome of a study tends to defeat the purpose of the scientific inquiry. In any event, both Dr. Miller and Dr. Cooper expressed a belief that because in general the earlier a malignancy is discovered, the easier it is to cure, they saw a possibility of meaningful results. In particular, Dr. Miller outlined his expectations for the study in the following terms: "I also think it is reasonable to assume on the basis of probability that if most types of adenocarcinoma have a better prognosis if diagnosed earlier and treated earlier, that adenocarcinoma of the lacrimal gland would. That is the reason that I feel comfortable if someone says do you think there is a 50 percent chance that the survey will show that in fact early diagnosis and treatment does positively affect the prognosis. It is the reason that I feel even more comfortable that there is a 30 percent chance that it will positively affect the diagnosis. Not from anything I know about lacrimal gland adenocarcinoma. We have already established that nobody knows enough about it. That is why we're here. On the basis of other types of adenocarcinoma, it is reasonable to assume that there may be a beneficial effect of early diagnosis and treatment."
[13] However, the docket contains an entry indicating that the motion for a continuance was denied on that date.
[14] While a dismissal for want of prosecution unless otherwise specified "operates as" an adjudication on the merits under Rule 41(b), it may fairly be regarded as an ultimate procedural sanction. The trial court refused to consider defendant's oral motion for a grant of summary judgment at the April 8 hearing and it is not clear that it would have looked more favorably on a written motion. We conclude the delay of plaintiff in responding to Dr. Wright's 26(b)(4) statement to be a principal impetus underlying the dismissal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261837/ | 133 Cal.Rptr.2d 199 (2003)
107 Cal.App.4th 1190
CONTINENTAL INSURANCE CO., Plaintiff and Respondent,
v.
COLUMBUS LINE, INC., Defendant and Appellant.
No. B157323.
Court of Appeal, Second District, Division Five.
April 17, 2003.
As Modified May 2, 2003.
*200 Russell, Mirkovich & Morrow, Joseph N. Mirkovich and Margaret E. Morrow, *201 Long Beach, for Defendant and Appellant.
Gibson Robb & Lindh, Stanley L. Gibson and Joshua E. Kirsch, San Francisco, for Plaintiff and Respondent.
TURNER, P.J.
I. INTRODUCTION
Defendant, Columbus Line, Inc., appeals from a $189,328 judgment, plus interest, entered after a court trial. The trial court found defendant was liable for $189,328, plus interest, for damage to a yacht mast owned by America True. The action was brought by plaintiff, Continental Insurance Co., the mast owner's insurer. Plaintiff filed a summary adjudication motion challenging defendant's sixth affirmative defense. We conclude: plaintiff failed to sustain its summary adjudication burden of production; the summary adjudication motion should have been denied; and the judgment must be reversed.
II. BACKGROUND
The complaint alleged that defendant is a common carrier. On July 16, 1999, defendant received a mast as cargo. Defendant was to carry the mast from Los Angeles, California to Auckland, New Zealand. Before being loaded on board defendant's ship, the mast was damaged. The damage was so severe that the mast could not be loaded on defendant's ship and carried to New Zealand. The mast's value depreciated by $189,328 as a result of the damage. Plaintiff agreed to indemnify the mast owner for loss or damage to the cargo while in transit. Plaintiff paid the mast owner $189,328. Defendant has refused to pay plaintiff for the damage to the mast.
Defendant answered the complaint and asserted a number of affirmative defenses including the one at issue here, which is whether plaintiffs damages were limited to $500 based on the Carriage of Goods by Sea Act and a bill of lading. Specifically, defendant relied on title 46 United States Code Appendix section 1304(5) which states in part: "Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier."
On September 24, 2001, plaintiff filed a summary adjudication motion, which sought a ruling that defendant's sixth affirmative defense was without merit. In addition to the language in the bill of lading, which will be related shortly, the sole evidence relied upon by plaintiff was as follows: the complaint alleged damage to cargo in transit from Los Angeles to Auckland, New Zealand; the sixth affirmative defense alleged that defendant's liability was limited to $500 pursuant to the Carriage of Goods by Sea Act; defendant alleged that the $500 limitation existed because of language in the bill of lading and tariff; no tariff had been produced by defendant; and defendant's standard bill of lading did not contain any statement that its liability was limited to $500 or any other amount.
Paragraph 3 of the bill of lading states in part: "3. RESPONSIBILITY; APPLICABLE LEGISLATION [¶] a) Except as otherwise provided herein, the Carrier shall be responsible for the Goods from the time received at the Port of Loading until delivered (or should have been delivered) *202 at the Port of Discharge and also during any previous or subsequent period of carriage performed under this Bill of Lading, subject to the provisions of any legislation compulsorily applicable to this Bill of Lading (1) which gives effect to the Hague Rules contained in the International Convention on the Unification of Certain Rules Relating to Bills of Lading dated at Brussels, August 25, 1924, including the specific adaptations thereof, such as the Carriage of Goods by Sea Act of the United States (hereinafter `COGSA') or (2) which gives effect to the said Rules as amended by the Protocols to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, dated at Brussels, February 23, 1968 (the `Visby Amendments') and December 21, 1979 (the `SDR Protocol'), including, if compulsorily applicable, the Australian Carriage of Goods by Sea Act 1991 or (3) where the Hague Rules, adaptations thereof or Hague Visby Amendments (including the SDR Protocol) are not compulsorily applicable, this Bill of Lading shall take effect subject to any national law which may be in force at the Port of Loading or place of issue of the Bill of Lading making the United National Convention on the Carriage of Goods by Sea [Act,] 1978 (the 'Hamburg Rules') compulsorily applicable to this Bill of Lading, in which case this Bill of Lading shall have effect subject to the Hamburg Rules which shall nullify any stipulation derogating therefrom to the detriment of the Merchant. The applicable legislation/national law and any amendments shall govern during the Carrier's entire period of responsibility. [¶] b) In the absence of compulsorily applicable legislation/national law, the `Hague Rules 1924' shall govern from the time received at the Port of Loading until the time delivered at the Port of Discharge and during all waterborne transport, including multimodal transport, but as to all non-water multimodal transport, except as stated above or elsewhere herein. Carrier's liability shall not in any event exceed 2.5 SDRs (Special Drawing Rights) per kilo of gross weight of the Goods."
In addition, paragraph 17 of the bill of lading provides: "17. LIMITATION OF LIABILITY [¶] The limitation of liability which shall be applicable and to which the Carrier shall be entitled is that set forth in the legislation/national law which is compulsorily applicable under the circumstances. In the absence of compulsorily applicable legislation/national law, the limitation applicable per Clause 3. b) hereof shall govern and shall also extend to Goods shipped in bulk. [¶] Where the Hague Rules, 1924 or COGSA, 1936 is applicable, as per Clause 3. a) (1) hereof, Carrier's liability shall be limited in accordance therewith, which limitation shall also apply to a Container which, although furnished by the Carrier, is characterized as a package or a lump sum freight is assessed, regardless of any numerical reference which may appear elsewhere on the reverse side hereof, and conclusively to a Container which is not furnished and/or stuffed by Carrier, unless the nature of the Goods and valuation thereof shall have been declared by Merchant before shipment, inserted in the Bill of Lading (in special box entitled `Declared value' on reverse side hereof) and extra freight paid if required. In no event shall the limitation amount exceed the Declared valued. In the event any part of this provision is held invalid during a period when compulsory legislation/national law shall apply, it shall nevertheless apply during all noncompulsory periods during which the Carrier bears responsibility for the Goods. [¶] Nothing herein shall be construed as waiver of limitation." Defendant alleges that its liability, if any, is limited to $500 for the shipment as asserted in its sixth *203 affirmative defense pursuant to the Carriage of Goods by Sea Act. Relying on Komatsu, Ltd. v. States S.S. Co. (9th Cir. 1982) 674 F.2d 806, 809, plaintiff argued in its moving papers: "A carrier of cargo cannot limit its liability by incorporating a statute or other documents by reference into its bill of lading. Under established law [Ninth Circuit Law] the carrier must expressly state the dollar amount of the limitation in the bill of lading. Since [defendant's] bill of lading failed to do so, [defendant] cannot limit its liability."
The trial court summarily adjudicated that there was no merit to the sixth affirmative defense based on the bill of lading limitation of liability provision. The matter then proceeded to a court trial. In a statement of decision, the trial court stated it had summarily adjudicated that the sixth affirmative defense lacked merit because the bill of lading did not contain valid limitation language in that it merely incorporated the Carriage of Goods by Sea Act by reference, which was insufficient under Komatsu, Ltd. v. States S.S. Co., supra, 674 F.2d at page 809. After rejecting defendant's additional affirmative defenses, the trial court found that plaintiff was entitled to judgment in the amount of $189,328, plus interest. Defendant's timely appeal from the judgment challenges the trial court's ruling summarily adjudicating that the sixth affirmative defense based on the Carriage Of Goods by Sea Act $500 damage limitation had no merit.
III. DISCUSSION
A. Standard of Review
In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, 107 Cal. Rptr.2d 841, 24 P.3d 493, the Supreme Court described a party's burdens on summary judgment or adjudication motions as follows: "[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. [Citation.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.... [¶] [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.... A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]" (Fns. omitted, see Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 871, 878, 116 Cal.Rptr.2d 158.) We will address more specifically the burden of production duties of a moving party later in this opinion.
We review the trial court's decision to grant the summary adjudication motion de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68, 99 Cal.Rptr.2d 316, 5 P.3d 874; Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188, 91 Cal.Rptr.2d 35, 989 P.2d 121, disapproved on another point in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The trial court's stated reasons for granting summary adjudication are not binding on us because we review its ruling, not its rationale. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19, 17 Cal.Rptr.2d 356; Barnett v. Delta *204 Lines, Inc. (1982) 137 Cal.App.3d 674, 682,187 Cal.Rptr. 219.)
B. Summary Adjudication Should Not Have Been Granted
The liability of international carriers for loss or damage to cargo is regulated by the Carriage of Goods by Sea Act. (Senator Linie Gmbh & Co. Kg v. Sunway Line, Inc. (2d.Cir.2002) 291 F.3d 145, 153; Travelers Indem. Co. v. Vessel Sam Houston (9th Cir.1994) 26 F.3d 895, 898.) The Second Circuit has described the Carriage of Goods by Sea Act as follows: "The U.S. Carriage of Goods by Sea Act ..., which `represents the codification of the United States' obligations under [the "Hague Rules"],' J.C.B. Sales Ltd. [v. Wallenius Lines (2d Cir.1997)] 124 F.3d [132,] at 134, was enacted in 1936 and `applies ex proprio vigore to all contracts for carriage of goods by sea between the ports of the United States and the ports of foreign countries,' Nippon Fire & Marine Ins. Co. v. M.V. Tourcoing, 167 F.3d 99, 100 (2d Cir.1999) (citing 46 U.S.C.App. §§ 1300, 1312)." (Senator Linie Gmbh & Co. Kg v. Sunway Line, Inc., supra, 291 F.3d at p. 153.) The United States Supreme Court has identified the purpose of the three obligations reflected in the Carriage of Goods by Sea Act in the following fashion: "The legislative history of the Act shows that it was lifted almost bodily from the Hague Rules of 1921, as amended by the Brussels Convention of 1924, 51 Stat. 233. The effort of those Rules was to establish uniform ocean bills of lading to govern the rights and liabilities of carriers and shippers inter se in international trade. Ibid." (Herd & Co. v. Krawill Machinery Corp. (1959) 359 U.S. 297, 301, 79 S.Ct. 766, 3 L.Ed.2d 820, fn. omitted; see Sunkist Growers, Inc. v. Adelaide Shipping Lines, Ltd. (9th Cir.1979) 603 F.2d 1327, 1338.) Pursuant to the Carriage of Goods by Sea Act, a carrier is liable for $500 per package or per customary freight unit. (46 U.S.C.App. § 1304(5).) Title 46 United States Code Appendix section 1304(5) provides in part: "Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before the shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier...." A carrier's liability, however, may be increased if the shipper declares on the bill of lading the nature and value of the goods shipped and pays a higher freight rate. (Travelers Indem. Co. v. Vessel Sam Houston, supra, 26 F.3d at p. 898; Carman Tool & Abrasives, Inc. v. Evergreen Lines (9th Cir.1989) 871 F.2d 897, 899.)
Paragraphs 3 and 17 of the bill of lading clearly incorporated the Carriage of Goods by Sea Act by reference. (See pp. 4-6, ante.) They also extended the limitation of liability provisions to the carrier's entire period of responsibility. Accordingly, the Carriage of Goods by Sea Act applies to this case. (46 U.S.C.App. § 1307; Hartford Fire v. Orient Overseas Container Lines (2d Cir.2000) 230 F.3d 549, 557; Mori Seiki USA Inc. v. M.V. Alligator Triumph (9th Cir.1993) 990 F.2d 444, 447; Institute of London Underwriters v. Sea-Land Serv. (9th Cir.1989) 881 F.2d 761, 764.)
C. The Limitation of Liability Provision in this Case
The controversy in this case centers around the effect of the language in *205 the bill of lading, which incorporates the Carriage Of Goods by Sea Act by reference but does not specifically contain the $500 per package limitation language. Federal decisional authority construing the Carriage of Goods by Sea Act is both consistent and inconsistent. Federal decisional authority is consistent in one respect. No restrictive bill of lading language concerning the scope of carrier liability may be enforced unless there has been a fair opportunity on the part of the shipper to negotiate a more favorable rate. The fair opportunity doctrine was articulated by the United States Supreme Court in New York, N.H. & H.R. Co. v. Nothnagle (1953) 346 U.S. 128, 135-136, 73 S.Ct. 986, 97 L.Ed. 1500. (See HIH Marine Ins. Services, Inc. v. Gateway Freight Services (2002) 96 Cal. App.4th 486, 492, 116 Cal.Rptr.2d 893.) The fair opportunity doctrine was explained by the Second Circuit as follows: "Under the `fair opportunity' doctrine, a shipper must have had a `fair opportunity' to declare a higher liability value for its cargo in order for a carrier to limit its liability under COGSA. See General Elec. Co. v. MV Nedlloyd, 817 F.2d 1022, 1028 (2d Cir.1987)." (Hartford Fire v. Orient Overseas Containers Lines, supra, 230 F.3d at p. 553.) No federal circuit has expressly held that the fair opportunity doctrine is inapplicable to a bill of lading subject to the Carriage of Goods by Sea Act. (Cf. Henley Drilling Co. v. McGee (1st Cir.1994) 36 F.3d 143, 146, fn. 5 [declining to address the question whether the fair opportunity doctrine ought to apply under any circumstances to Carriage of Goods by Sea Act litigation]; Carman Tool & Abrasives, Inc. v. Evergreen Lines, supra, 871 F.2d at p. 900, fn. 6 [questioning whether the fair opportunity requirement ought to apply at all in Carriage of Goods by Sea Act lawsuits involving commercially knowledgeable litigants].)
The inconsistent application of federal law arises as to whether a mere reference in the bill of lading to the Carriage of Goods by Sea Act constitutes prima facie evidence that a fair opportunity to declare a higher liability value on the cargo has been afforded the shipper. The Ninth Circuit holds that mere reference to the Carriage of Goods by Sea Act in a bill of lading is not prima facie evidence of a fair opportunity to negotiate for a higher value. (Komatsu, Ltd. v. States S.S. Co., supra, 674 F.2d at p. 809; Pan American World Airways, Inc. v. Cal. Stevedore & Ballast (9th Cir.1977) 559 F.2d 1173, 1177.) By contrast, other circuits have held that reference to the United States Carriage of Goods by Sea Act limitation on liability constitutes prima facie evidence that a fair opportunity to declare a higher liability value on the cargo was afforded the shipper. (See Insurance Co. of North America v. M/V Ocean Lynx (11th Cir.1990) 901 F.2d 934, 939; Cincinnati Milacron, Ltd. v. M/V American Legend (4th Cir.1986) 784 F.2d 1161, 1166 (Phillips, J., dissenting) ["it does not seem unduly burdensome to impute to shippers knowledge of all of the COGSA's terms" as incorporation by reference], rev'd en banc (4th Cir.1986) 804 F.2d 837 (adopting Judge Phillips' dissent); Wuerttembergische v. M/V Stuttgart Express (5th Cir.1983) 711 F.2d 621, 622; Brown & Root, Inc. v. M/V Peisander (5th Cir.1981) 648 F.2d 415, 420.) In their initially filed briefs, the parties asked us to adopt either the majority rule or the minority Ninth Circuit standard. That issue is not ripe for determination because plaintiffs moving papers failed to shift the burden of production to defendant concerning the enforceability of the bill of lading limitation of liability provision. The enforceability *206 of a limitation of liability provision in a Carriage of Goods by Sea Act case depends upon whether a fair opportunity was afforded the shipper to secure greater protection than that set forth in the bill of lading. The bill of lading language is merely the first step in determining the enforceability of a limitation of liability provision in a Carriage of Goods by Sea Act case.
Even under the Ninth Circuit formulation, a bill of lading limitation on liability provision subject to the Carriage of Goods by Sea Act is fully enforceable if there has been a fair opportunity by the shipper to negotiate for greater coverage. All the Ninth Circuit rule holds is that merely referring to the Carriage of Goods by Sea Act in the bill of lading without expressly reciting its terms which includes the $500 limitation or utilizing words to the same effect does not create a prima facie evidence that a fair opportunity to negotiate has been extended to the shipper. (Vision Air Flight Service, Inc. v. M/V National Pride (9th Cir.1998) 155 F.3d 1165, 1168; Komatsu, Ltd. v. States S.S. Co., supra, 674 F.2d at p. 809.) In other words, if a fair opportunity to negotiate for greater protection was extended to the shipper in this case, the sixth affirmative defense had merit.
In the present case, in its moving papers, plaintiff presented no evidence as to whether a fair opportunity was extended to the shipper to negotiate for a higher limitation of liability. As noted previously, the initial burden of production rested with plaintiff to demonstrate that the sixth affirmative defense premised upon the $500 Carriage of Goods by Sea Act limitation barred a greater recovery. The initial burden of production has been defined by the California Supreme Court as follows: "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.... [¶][T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.... Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.] No more is called for." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851, 107 Cal.Rptr.2d 841, 24 P.3d 493 orig. italics, fns. omitted; accord Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1303-1304, 130 Cal.Rptr.2d 347 ["As the party moving for summary judgment, the university bore an initial burden of production of a prima facie showing that there is no triable issue of material fact in this case and it is entitled to judgment as a matter of law. Only if the university carried that burden was plaintiff faced with a burden of production of her ownto make a prima facie showing of the existence of a triable issue of material fact"].)
All plaintiff presented was evidence that the bill of lading did not comply with the Ninth Circuit requirement that the express language of the Carriage of Goods by Sea Act appear in the bill of lading, including the $500 limitation, or utilizing words to the same effect. Plaintiff presented no evidence indicating the shipper was denied the fair opportunity to negotiate for a greater limitation. Nor did defendant cite evidence in its separate statement which shed any light on the fair opportunity to negotiate question. Rather, plaintiff merely relied on the language of the bill of lading which proves nothing *207 about the absence of a fair opportunity by the shipper to negotiate for more favorable terms. Plaintiff presented no evidence defendant would be unable to document that the shipper was denied the fair opportunity to seek greater protection from loss. Hence, the burden of production never shifted to defendant to produce any evidence on the subject. Because there was no evidence that the shipper was denied the opportunity negotiate for a more favorable limitation of liability, plaintiff failed to make a prima facie case that the sixth affirmative defense was without merit. As result, plaintiffs summary adjudication motion should have been denied.
IV. DISPOSITION
The judgment is reversed. Upon issuance of the remittitur, the trial court is to enter an order denying the summary adjudication motion. The court may then proceed to resolve the issue of the sixth affirmative defense. Defendant, Columbus Lines, is to recover its costs on appeal from plaintiff, Continental Insurance Company.
We concur: ARMSTRONG and MOSK, JJ. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261838/ | 132 Cal.Rptr.2d 35 (2003)
107 Cal.App.4th 723
WOODSIDE HOMES OF CALIFORNIA, INC., Petitioner,
v.
The SUPERIOR COURT of the County of Riverside, Respondent;
C.I. Fogler, Jr., et al., Real Parties in Interest.
No. E032446.
Court of Appeal, Fourth District, Division Two.
February 28, 2003.
*37 Cooksey, Toolen, Gage, Duffy & Woog, Griffith H. Hayes, Matthew S. Watson, Costa Mesa, and Alexander T. Winsberg for Petitioner.
No appearance for Respondent.
Dicks & Coglianese, Christopher Coglianese and Charles R. Fenton for Real Parties in Interest.
*36 OPINION
HOLLENHORST, Acting P.J.
In this case we are asked to determine the enforceability of a clause requiring homebuyers who sue the builder to submit the dispute to binding judicial reference. In contrast to the trial court, we find the provision enforceable, and grant the relief sought by petitioner.
STATEMENT OF FACTS
Petitioner Woodside Homes of California, Inc. (Woodside) is a developer of home tracts. Real parties in interest (Buyers) purchased homes from petitioner's affiliate sales arm under standard contracts which required any lawsuit "relating to the condition, design or construction of any portion of the [purchased home]" to be submitted to judicial reference pursuant to Code of Civil Procedure sections 638, former subdivision 1, and 641 through 645.1. Among the more significant provisions for the conduct of the reference are the following: The referee is to be a retired judge or attorney with substantial experience in real estate matters; the parties shall be entitled to discovery, with the referee to supervise and enforce orders; a stenographic record of the trial is to be made, but will be confidential except as necessary for posthearing motions and appeals; the referee shall render a statement of decision with findings of fact and conclusions of law; and the decision may be entered as a judgment, but is also appealable.
The contracts also provide that, "Seller shall not be required to participate in the judicial reference proceeding unless it is satisfied that all necessary and appropriate parties will participate." The parties are to share costs and the referee's fees equally, "unless the referee orders otherwise." Each party shall remain responsible for their own attorneys' fees.
In reliance upon these provisions, Woodside moved to compel a reference. Although Buyers' complaint named only Woodside and Does, Woodside represented that the subcontractors on the project were all bound by agreements to participate in any reference of disputes related to their work.
Buyers objected on several grounds, but the general thrust of their argument was that the provision for mandatory judicial reference was unconscionable and unenforceable. In agreeing with Buyers, the trial court was particularly concerned with five provisions: confidentiality; compensation of the referee; the possibility that a mere attorney might be selected; Woodside's unilateral power to decline to participate; and the lack of provisions for mediation.[1] Woodside sought review.
*38 DISCUSSION
General Principles of Enforceability
First, we must point out that this is not an arbitration case, and therefore not all authorities dealing with arbitration agreements are directly relevant. For example, one case on which Woodside particularly relied, Basura v. U.S. Home Corp. (2002) 98 Cal.App.4th 1205, 120 Cal.Rptr.2d 328 (Basura) involved the effect of the Federal Arbitration Act on Code of Civil Procedure section 1298.7, which is intended to preserve a homebuyer's right to litigate disputes despite the fact that the sales contract contains an arbitration clause.[2] Because this case does not involve arbitration, neither the statute nor the federal act applies.[3]
However, we recognize that a binding judicial reference is substantially similar to nonjudicial arbitration, and a similar approach is therefore justified in evaluating the enforceability of the provisions.
California has historically had a "friendly policy" towards arbitration agreements. (Keating v. Superior Court (1982) 31 Cal.3d 584, 601, 183 Cal.Rptr. 360, 645 P.2d 1192, disapproved on other grounds sub nom. Southland Corp. v. Keating (1984) 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1; see also Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97-98, 99 Cal. Rptr.2d 745, 6 P.3d 669 (Armendariz).) Such agreements are "valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract." (Code Civ. Proc., § 1281.) That is, California recognizes and approves of such agreements, but they are not given special consideration; rather, they are evaluated under the same standards as any other contract which a party seeks to avoid. (Armendariz, at pp. 126-127, 99 Cal. Rptr.2d 745, 6 P.3d 669; Bolter v. Superior Court (2001) 87 Cal.App.4th 900, 906, 104 Cal.Rptr.2d 888.)
Although the "doctrine of unconscionability" was judicially created (see Armendariz, supra, 24 Cal.4th at p. 113, 99 Cal.Rptr.2d 745, 6 P.3d 669), Civil Code section 1670.5 now provides a statutory basis for refusing to enforce a contract which the court finds "as a matter of law ... to have been unconscionable at the time it was made ...." The crucial term, "unconscionable," is not defined, but the law has clearly established that the term has both a procedural and a substantive element. The former takes into consideration *39 the parties' relative bargaining strength and the extent to which a provision is "hidden" or unexpected, while the substantive element requires terms that "shock the conscience" or at the least may be described as "harsh or oppressive." (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1212-1213, 78 Cal.Rptr.2d 533.) Both elements must be present, but "the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa." (Armendariz, at p. 114, 99 Cal.Rptr.2d 745, 6 P.3d 669.) In the context of arbitration, California courts currently reflect considerable concern that arbitration not become an "instrument of injustice" when forced upon consumers. (See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 989, 64 Cal.Rptr.2d 843, 938 P.2d 903 (cone. opn. of Kennard, J.) (Engalla).)
It has been held that the party who prepared and submitted a contract containing unexpected or harsh terms has the burden of showing that the other party had notice of them (Ellis v. McKinnon Broadcasting Co. (1993) 18 Cal.App.4th 1796, 1804, 23 Cal.Rptr.2d 80), but also that the party asserting unconscionability as a defense has the burden of establishing that condition. (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1738-1739, 22 Cal.Rptr.2d 781.) In the related context of arbitration, the party seeking to compel arbitration has the burden of showing the existence of a valid agreement, while the opposing party has the burden of proof with respect to any defense to enforcement. (Engalla, supra, 15 Cal.4th at p. 972, 64 Cal.Rptr.2d 843, 938 P.2d 903.)
Application to This Case
Because of its close similarity to this case, as well as due to its origin in another division of this court, we begin by reviewing the recent decision by Division One of this court in Pardee Construction Co. v. Superior Court (2002) 100 Cal.App.4th 1081, 123 Cal.Rptr.2d 288 (Pardee), which resulted in the invalidation of a clause requiring judicial reference of disputes in the same context of tract homes. In large part the contracts and circumstances were effectively equivalent to those in this case, and we will only note the differences.[4]
A.
Procedural Unconscionability
In Pardee, the homes were described by both sides and the court as "entry level" (Pardee, supra, 100 Cal.App.4th at p. 1084, 123 Cal.Rptr.2d 288) and the court assumed that the buyers therefore had little bargaining power when dealing with the builder/developer. The court found, or assumed, that all of the 800 homes in the developments not only contained the judicial reference provisions, but that none of them had been successfully stricken by the buyers, who therefore had been shown to "[have] little choice."[5](Id, at p. 1087, 123 Cal.Rptr.2d 288.)
*40 In this case, Woodside merely asserted that all of the plaintiffs in this action had initialed and accepted the provisions for judicial referencethere was no concession that no buyer had stricken them. Nor was there any evidence concerning any buyer's disagreement or attempt to reject the provisions. The homes ranged in price from $189,900 to $251,490, with only two of the 11 priced below $220,000. There was no evidence that this was "entry level" or "mid-level" or "upper level," and no evidence concerning the availability of similarly-priced housing stock in the region. (Cf. Armendariz, supra, 24 Cal.4th at p. 115, 99 Cal.Rptr.2d 745, 6 P.3d 669, in which the court felt able to state as a fact that "few employees are in a position to refuse a job because of an arbitration requirement.")
The opinion in Pardee describes the contracts' provisions for judicial reference as "buried in the form contracts" and "physically difficult to read as printed in dense, single-spaced capital letters." It also noted that the caption of the paragraph in question "did not explain the essence of the judicial reference provisions or otherwise convey anything meaningful to an entry-level purchaser." Finally, the court found it a "surprise component" that the contract made no mention of referee fees. (Pardee, supra, 100 Cal.App.4th at pp. 1089-1090, 123 Cal.Rptr.2d 288.)
Although comparisons are difficult in that the Pardee opinion does not include a copy of the sales contract as an appendix, we do not think the contracts here can be described as misleading or hard to penetrate. Although the contracts are several pages long, and contain a great deal of small print, the Buyers were necessarily "made aware of the existence of [the judicial reference] provision" because they had to initial the paragraph separately. (Wheeler v. St. Joseph Hospital (1976) 63 Cal.App.3d 345, 361, 133 Cal.Rptr. 775, quoted in Powers v. Dickson, Carlson & Campillo (1997) 54 Cal.App.4th 1102, 1110, 63 Cal.Rptr.2d 261.) While the print of the provisions is small and does not stand out, immediately above the spaces for the buyers' initials is the large, bolded statement: "By initialing below, the parties acknowledge that they have read and understand the foregoing and accept that they are waiving their right to a jury trial." The caption"JUDICIAL REFERENCE OF DISPUTES"does not contain the arguably misleading addition present in Pardee: "TRIAL BY JUDGE IN COURT OF COMPETENT JURISDICTION."[6] And although it is true that the caption does not "explain the essence of the judicial reference provisions" (Pardee, supra, 100 Cal.App.4th at p. 1090, 123 Cal.Rptr.2d 288), we do not believe that a caption is required to do so.[7] Significantly, perhaps the most important aspect of the judicial referencethe fact that it does not involve a jurywas clearly and conspicuously set forth. The paragraph also notes that a reference will require fees for the referee, and sets out the presumptive method of apportionment.
Thus, the contracts here lack most, if not all, of the procedurally unconscionable factors found to exist in Pardee. Insofar *41 as that court also relied on the circumstances of the sales, in this case there is no evidence of either de facto coercion, lack of choice, or ignorance and unsophistication on the part of the buyers, and we will not read anything additional into the record.
Even if we do assume an imbalance in bargaining power, and that Woodside, as the stronger party, presumably prepared the contracts with an eye to its own advantage, and even if we also assume that Woodside would not have countenanced the striking of the judicial reference provisions, the Buyers have nevertheless only shown a low level of procedural unconscionability because, as we have found above, the elements of surprise or, a fortiori, misrepresentation (see Ellis v. McKinnon Broadcasting Co., supra, 18 Cal.App.4th at p. 1804, 23 Cal.Rptr.2d 80) were not present. In order to prevail, therefore, the Buyers must have established a high level of substantive unconscionability.
B.
Substantive Unconscionability
Again we will take Pardee as the starting point. In that case, the judicial reference necessarily included the waiver of the right to jury trial. The specific terms also prohibited the recovery of punitive damages. As noted above, there was no provision for the referee's fees, which left open the possibility that a buyer might be liable for all the fees. (Pardee, supra, 100 Cal.App.4th at pp. 1090-1092, 123 Cal. Rptr.2d 288.) In this case, there is no limitation on damages while fees are to be shared evenly unless the referee determines otherwise.
The trial court here also was concerned about several other factors, some present (or possibly present) in Pardee and some not. The trial court disliked Woodside's power to "opt out," the lack of any provision for attorneys' fees, the possibility that a non-judge could be selected,[8] the confidentiality of the transcript, and the lack of provisions for mediation. In our view, none of these issues is of substantial weight.
It is quite true that an agreement for alternative dispute resolution which is not binding upon the party insisting on it may be deemed unfair; there must be a "modicum of bilaterality." (Armendariz, supra, 24 Cal.4th at p. 117, 99 Cal.Rptr.2d 745, 6 P.3d 669.) In this case, Woodside was not required to participate in the judicial reference unless it was "satisfied that all necessary and appropriate parties will participate." However, Woodside persuasively pointed out that it had required all (or virtually all) of its subcontractors to agree to participate in any judicial reference proceeding and that the provision was designed to ensure that the entire dispute could be resolved in one setting, whether by reference or trial.[9] The contract bound it to act in good faith in attempting to secure the participation of the subcontractors. Certainly there is nothing to indicate how or why Woodside might manipulate this provision to its advantage.
As for the possibility that an attorney who had never been a judge might be selected as a referee, the law governing references accepts such persons as qualified referees. (See Code Civ. Proc., §§ 638, 640-641.) We think the trial court's fear that an attorney referee might be unqualified to apply the rules of evidence "and that type of thing" was unjustified *42 speculation. Equally speculative and to a large extent rebutted by Woodside's counselwas the trial court's concern that mediation or settlement conferences would be unavailable. There is no reason to make the illogical supposition that if both sides thought that informal attempts to resolve the dispute might be useful, they would not arrange such attempts, and Woodside in fact pointed this out. The contracts also specifically provided that the referee could require prehearing conferences.
As for the provision that both sides would bear their own attorneys' fees, this, as Woodside pointed out, merely restated the "American rule" of general applicability.[10] (Code Civ. Proc., § 1021; City and County of San Francisco v. Sweet (1995) 12 Cal.4th 105, 115, fn. 7, 48 Cal.Rptr.2d 42, 906 P.2d 1196.) It took nothing away from the Buyers and was neither harsh nor oppressive.
Finally, the trial court was concerned with the provision that the transcript of the reference proceeding was to remain confidential unless needed for appeal. Assuming, arguendo, that Buyers correctly assert that this provision is illegal, that does not make it unconscionable as to them. The factors which prohibit even the parties from agreeing to secret judicial proceedings bear on the extent to which the salutary effects of open proceedings serve the public interest. (See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1200-1202, 86 Cal.Rptr.2d 778, 980 P.2d 337 et passim.) These concerns have nothing to say about the fairness or desirability of a secrecy provision with respect to the parties themselves, and we see nothing unreasonable or prejudicial about it.[11]
Furthermore, even if the provision is unenforceable, we agree with Woodside that it is severable. Civil Code section 1670.5 provides that even if a court finds a provision in a contract to be unconscionable, it has the option to enforce the remainder of the contract. This approach has been taken in the context of arbitration clauses containing objectionable terms. (See Bolter v. Superior Court, supra, 87 Cal.App.4th at p. 910, 104 Cal. Rptr.2d 888, commenting that "[i]t is not necessary to throw the baby out with the bath water....") If a challenge is in fact made to this provision as the matter proceeds towards resolution, or thereafter, severance would seem reasonable.
We are left, then, with the waiver of the right to jury trial and the issue of expense.
The contracts in this case, in contrast to those in Pardee, contain an express basic rule for the even division of the expenses of the judicial reference, with an additional provision authorizing the referee to direct payment at his or her discretion. Insofar as the Pardee court was concerned that the contract before it made no mention of such fees at all, Woodside's contract did at least indicate to Buyers that the process of judicial reference would involve expenses *43 for the referee and thus the procedural element of surprise is not present. However, the underlying issue of fees requires some consideration. In Pardee, counsel indicated that a typical referee in San Diego charged $200 to $300 per hour. Here, the trial court speculated that costs could run up to $600 per hour. Either figure demonstrates the possibility for substantial expense, and an argument can be made that, compared with the "free" access to the court itself, a contract which imposes upon the weaker party the possibility of such exposure is unconscionable.
It is still frequently assumed, or stated without discussion, that arbitration (and, by analogy, a general judicial reference) provides economies both of time and expense. (See Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 832, 88 Cal.Rptr.2d 366, 982 P.2d 229; Engalla, supra, 15 Cal.4th at p. 978, 64 Cal.Rptr.2d 843, 938 P.2d 903.) However, as suggested in Pardee, the possibility that the fees of an arbitrator or referee may be burdensome especially to the "weaker party" has also been recognized. In fact, where the plaintiff is attempting to seek redress for the violation of a statutory or constitutional right, any provision requiring him to pay costs in excess of those incident to normal litigation is invalid. (See, e.g., Armendariz, supra, 24 Cal.4th at pp. 110-111, 99 Cal.Rptr.2d 745, 6 P.3d 669.) Considerable attention has also been paid to the problem of nonconsensual judicial reference of, e.g., discovery disputes, where one party is genuinely unable to pay the costs. (See Code Civ. Proc., § 645.1 [apportionment of such fees]; Taggares v. Superior Court. (1998) 62 Cal.App.4th 94, 72 Cal. Rptr.2d 387, and cases cited therein.) For Buyers to show that their consensual agreement is unconscionable, however, they must demonstrate at the least that the fees they are likely to pay are in fact greater than those which would accrue in litigation before the court. No such showing was made. Indeed, counsel for Woodside representedwithout contradiction from Buyersthat he had substantial experience in complex construction litigation, and that it was routine for courts to appoint a nonconsensual special master or referee to handle at least all pretrial matters such as discovery and settlement negotiations. Thus, in such cases Buyers would also be potentially responsible for a share of any fees charged by the referee. No attempt was made to establish the likely length of a jury trial, or the additional attorneys' fees, if any, which litigation before the court would be likely to generate.[12]
Nor did Buyers establish that the probable additional expenses of a judicial reference, if any, would be impossible or unreasonably difficult for them to pay. (Cf. Pardee, supra, 100 Cal.App.4th at p. 1090, 123 Cal.Rptr.2d 288, in which the court found it possible to assume that such expenses would constitute "heavy burdens for buyers of entry-level homes.") Their opposition to the motion by Woodside argued only that the provision for reference was unconscionable because it "den[ied]" them of their right of access to the courts. It may well be that Buyers' counsel is contractually obligated to "front" any such expenses, an arrangement noted as "commonplace" in DeBlase v. Superior Court (1996) 41 Cal.App.4th 1279, 1285, 49 Cal. Rptr.2d 229.[13] In short, the Buyers failed to produce any evidence that the *44 decision to agree to judicial reference was not economically sound from their point of view.[14]
Finally, we turn to the issue of Buyers' waiver of their right to a jury trial. As we have discussed above, this waiver was not obtained by a "stealthy device" such as the burial of the provision near the end of 70 pages of text. (See Villa Milano Homeowners Assn. v. II Davorge (2000) 84 Cal. App.4th 819, 829, 102 Cal.Rptr.2d 1.)[15] There is no question that such a waiver can be made. (Ibid.) In Pardee, the court found no evidence in the record that the buyers had gained anything in return for this waiver, because it was not persuaded that there would be any economies of time or expense. We have taken the approach that, based on the public policy favoring alternative dispute resolution (see Armendariz, supra, 24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P.3d 669, and Keating v. Superior Court, supra, 31 Cal.3d 584, 183 Cal.Rptr. 360, 645 P.2d 1192), we should assume that such economies exist unless proven otherwise. We also think it obvious that Buyers did get something in addition for their jury waiverWoodside's matching waiver. This brings us to a final question, albeit not one directly addressed or raised by the parties.
Why have provisions for arbitration or similar methods of dispute resolution outside the courtroom become so popular in contracts drawn up by the party who is overwhelmingly likely to be the defendant if a dispute arises?[16] There are several *45 possible reasons, some of which are perfectly neutral and operate evenhandedly; some may be stated more than one way, depending on one's philosophical bent. The "defendant in waiting" may believe that juries are unpredictable. It may believe that juries cannot be trusted with complicated cases, or that jurors may lose interest in a long case and return an ill-informed or arbitrary verdict. It may believe that juries are biased against "business." It may believe that a trained neutral trier of fact will make a fairer decision.[17]
We will take the simplest and, for Woodside, the starkest and least generous way of putting it: Businesses prefer to have consumer cases heard by a neutral adjudicator because they expect that, year in and year out, the plaintiffs' recovery will be less than juries would award. But even assuming that 1) this is why the provisions are inserted, and 2) that this belief is accurate, does that make it unconscionable to require the consumer/buyer to waive his right to a jury trial?
It does not. Nothing in the record before us suggests that a truly neutral decision maker chosen under the sales contracts will not return a fair decision, or that, if the decision is in favor of the Buyers, the award will not represent complete and reasonable compensation for their damages. There is nothing "unconscionable" in requiring a party to a contract to give up the possibility of obtaining a windfall from a jury irresponsibly generous with someone else's money.[18]
The law of California provides that in a contract case, "the measure of damages ... is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom." (Civ.Code, § 3300.) Similarly, "[f]or the breach of an obligation not arising from contract, the measure of damages ... is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." (Civ.Code, § 3333.) Buyers are entitled to such an award, whether from a jury or a referee. They are not entitled to more, and they have not been subject to harsh oppression by being required to submit their disputes to a neutral referee.
We do not purport to hold that all agreements for judicial reference are valid and enforceable; as did the court in Pardee, we have "narrowly tailored [our analysis] to this record, in particular to the parties' agreements." (100 Cal.App.4th at p. 1086, 123 Cal.Rptr.2d 288.) We do find that the agreements for judicial reference in this case are enforceable.[19]
*46 DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue as prayed. Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties. Petitioner shall recover its costs on appeal.
We concur: McKINSTER and RICHLI, JJ.
NOTES
[1] The court commented that the agreement required the use of a referee affiliated with "JAMS," but this was not correct. The agreement only requires the use of the procedures established by Judicial Arbitration and Mediation Services (JAMS) unless otherwise agreed.
[2] Basura held that because home construction and sales involved interstate commerce, federal law controlled and preempted the California statute. It therefore enforced the arbitration agreement. The opinion does not reflect that any argument was made that the agreements were unconscionable, which would be a defense to enforcement under federal law; the Federal Arbitration Act permits contracts for arbitration to be voided upon grounds that apply to all contracts. (Doctor's Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902.) The problem with Code of Civil Procedure section 1298.7 is that it creates a special rule which invalidates only arbitration agreements.
[3] We are not unmindful of the argument that the statute expresses a legislative policy against requiring homebuyers to submit to any form of alternative dispute resolution. We do not find the argument dispositive because many of the potentially undesirable elements of arbitration are not present in the specific agreement here, such as the virtual nonreviewability of the decision even in cases of clear legal error. (See Code Civ. Proc., §§ 1286.2 & 1286.6; Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 27-28, 10 Cal. Rptr.2d 183, 832 P.2d 899.) Thus, we do not find the legislative distaste for arbitration (ineffectual as Basura found it to be in the circumstances) of substantial weight in the analysis of the provisions at issue here.
[4] Buyers, in their return, argue that the agreement in this case is more objectionable than that in Pardee because it provides for a binding reference while the Pardee reference was nonbinding. We do not so read the opinion. If the reference was not binding, the discussion of the buyers' waiver of jury trial would have been pointless.
[5] In its opinion, the court noted that Pardee Construction alleged in its petition that every purchase agreement for the entire development contained the judicial reference provision, and thus acknowledged that no buyer struck it out. However, the opinion sheds no light on whether there was any evidence that any buyer attempted to strike it out but was told that this was not acceptable to the seller.
[6] The court found this misleading as it applied only if the judicial reference provisions were not enforced.
[7] The Pardee court appears to have assumed that purchasers of "entry level" homes would lack the necessary education, experience, or sophistication to understand the contracts. We note that most of the named plaintiffs in the action had Hispanic surnames. While that is not true here, we would in any event be reluctant to draw similar conclusions merely from the price of the homes or the ethnicity of the buyers.
[8] In Pardee the referee was to be a retired superior court judge.
[9] That is, if all subcontractors did not agree to the reference, the entire case would remain before the court.
[10] Code of Civil Procedure section 1021.1 does now provide for attorneys' fees in specified circumstances involving an offer of judgment. However, the statute, applicable only in Riverside County (id., subd. (h)) was not enacted until 2001, after the execution of the contracts at issue here. As noted above, substantive unconscionability is evaluated as of the time the contract was executed.
[11] On the other hand, we are not impressed by the argument, made by Woodside below, that the secrecy provision was for the Buyers' benefit, e.g., by protecting them from potential embarrassment if their recovery was small. Our point is simply that a provision which favors one side is not substantively unconscionable if the advantage is completely collateral to the issues surrounding a fair resolution of the dispute.
[12] The same pointthe prevalence of at least partial reference in construction disputes was conceded by both sides in Pardee. While that court took the point as indicating that a general reference would save little time, we look at it as evidence that the expenses would not be notably increased.
[13] The court also commented that in such a case, "an avowal of the litigant's indigence may be viewed as nothing more than a request that the court minimize counsel's out-of-pocket expenses." (DeBlase v. Superior Court, supra, 41 Cal.App.4th at p. 1285, 49 Cal.Rptr.2d 229.) In Taggares v. Superior Court, the court criticized this statement insofar as it suggested that counsel should be prepared to pay the expenses of a reference which neither he nor his client had requested. (62 Cal.App.4th at p. 102, 72 Cal.Rptr.2d 387.) This does not necessarily apply when the client has agreed to a reference. We do not know, of course, whether the agreement between Buyers and their counsel deals with the issue.
[14] We also note that the contracts at least raised the possibility that the referee would choose to apportion expenses primarily to the losing party. It could well be argued that construction defect cases are relatively straightforward in many respects, at least as between the buyer and the builder. Either the roof leaks, or it does not; if it does, the builder is very likely to be responsible. Unlike, for example, an automobile accident case, "leaky roof" and "cracked wall" cases do not involve the vagaries of memory and debatable issues of whether "A" had time to swerve, or "B" should have braked. To this extent a home buyer who brings a complaint in good faith can feel reasonably confident of prevailing, and thus also making a case for an apportionment of expenses primarily to the builder.
[15] In that case, the court noted that not only was the arbitration provision on pages 67-68 of a 70-page set of CC & R's, but the purchasers "most likely" received a "thick stack of additional documents" such as association bylaws and articles of incorporation, as well as the actual purchase documents. (Villa Milano Homeowners Assn. v. Il Davorge, supra, 84 Cal.App.4th 819, 102 Cal.Rptr.2d 1) In the absence of evidence, we decline to speculate on what other documents the Buyers may have been required to scrutinize along with the purchase agreements.
[16] Woodside, having received its money from Buyers (or their lenders), would have little reason to think it would ever initiate litigation against Buyers. Medical providers, such as that in Engalla, rarely sue their patients. Employers, such as that in Armendariz, rarely sue their employees. Franchisers, such as that in Bolter v. Superior Court, are probably less likely to sue their franchisees than vice versa. Even when such suits are brought, they would be more likely to sound in the damages-limited field of contract than in tort. (One exception is the situation in which an employer sues a former employee for unfair competition or theft of trade secrets.) In virtually all cases, however, the party drafting the arbitration or reference clause has many times the available financial resources of the otherwhich means that it is a potentially desirable target. An employer dissatisfied with a slacker employee merely fires him or her; the disgruntled ex-employee is the one who sues.
[17] In an individual case, a party may elect a court trial for many reasons. A criminal defendant may fear that the inflammatory facts of the case would inevitably bias a jury. Any party may believe that a jury would be unsympathetic to his position because of his ethnicity, or that he would make a poor witness. Of course no such individualized determination was made here.
[18] Nor is the advantage wholly to Woodside. As we have noted just above, by insisting on judicial reference, Woodside gave up the chance, in any given case, of using any unprepossessing characteristics of the plaintiff as a negotiating or litigation tool.
[19] Woodside argues at some length that the provisions for judicial reference must be deemed not unconscionable because the real estate contracts were subject to review by the Department of Real Estate. (See Bus. & Prof. Code, §§ 11010 et seq.) Woodside also points out that regulations permit real estate contracts to include provisions for judicial reference. (See Cal.Code Regs., tit. 10, § 2791.8.) Finally, Woodside asserts that the Department itself informs developers that. "The substance of the sales agreement is of prime importance in assessing whether purchasers are being dealt with fairly and within the law." (It does not provide the source of this statement, which may appear on the Department's Website.) Woodside's position is that 1) the Department will not approve a provision which is not lawful, so 2) judicial reference agreements must be lawful.
It is for the courts to determine whether a provision is unconscionable, and we are not bound by a permissive regulation even if we were to assume that it was the result of deliberate consideration. We also note that the same regulation permits real estate contracts to contain arbitration clauses as well, despite the fact that the Legislature, in Code of Civil Procedure section 1298.7, has effectively emasculated such clauses with respect to tort claims. (See Basura, supra, 98 Cal.App.4th at pp. 1211-1212, 120 Cal.Rptr.2d 328; Villa Milano Homeowners Assn. v. Il Davorge, supra, 84 Cal.App.4th at p. 830, 102 Cal.Rptr.2d 1.)
In this context Woodside points out that in 1997, a superior court judge in San Francisco ruled that an arbitration clause was permissible "as long as [it] does not limit any right of action." This appears to have been based upon the belief that section 1298.7 only operated to ensure that buyers were not compelled to give up any type of claim, and could arbitrate any "cause of action" they might have against the developer. However, as Basura and Villa Milano make clear, the statute gives the homeowner the option of refusing to arbitrate and take his claims to court. (Of course, nothing prevents the homebuyer from proceeding with arbitration if he so chooses, and to this extent a provision for arbitration might be considered valid, even if not enforceable by the developer.)
Finally, we note that the only "required contents" of a real estate purchase contract are the legal description, outstanding encumbrances, and "the terms of the contract." (Bus. & Prof.Code, § 11200.) Similarly, an application for a public report requires the developer to submit a copy of the proposed sales contract (§ 11010, subd. (b)(5)), but the statutes otherwise do not purport to govern the terms of such contracts. In our view the Department's authority to micromanage the preparation of sales contracts through regulation is not clearly established, especially in an area of law rapidly evolving both through legislation and judicial decisions. For this reason as well we do not give the Department's permission to sell great weight. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322889/ | 121 S.E.2d 713 (1961)
255 N.C. 391
Frank Lee ISRAEL
v.
Maxine Faye ISRAEL.
No. 99.
Supreme Court of North Carolina.
September 27, 1961.
*715 William J. Cocke, Asheville, for defendant-appellant.
James S. Howell, Asheville, for plaintiff-appellee.
WINBORNE, Chief Justice.
The defendant makes numerous assignments of error. This is the pivotal one: Did the trial court err in instructing the jury as a matter of law that unless plaintiff did intentionally change his home and intend to make some other State his permanent home for an indefinite period of time or for a permanent length of time, that his residence would remain in North Carolina even though he may have been in Korea or various other localities? We think the answer is No.
In Martin v. Martin, 253 N.C. 704, 118 S.E.2d 29, 31, Moore, J., speaking for the Court said, quoting in part as follows: "Jurisdiction in divorce actions is conferred by statute. The requirement that one of the parties to a divorce action shall have resided in the State for a specified period of time next preceding the commencement of the action is jurisdictional. If the element of residence is lacking the court has no jurisdiction to try the action or grant a divorce. Henderson v. Henderson, 232 N. C. 1, 9, 59 S.E.2d 227; Ellis v. Ellis, 190 N.C. 418, 421, 130 S.E. 7. In an action for divorce `The plaintiff shall set forth in his or her complaint that the complainant or defendant has been a resident of the State of North Carolina for at least six months next preceding the filing of the complaint * * *.' G.S. § 50-8.
"`* * * To establish a domicile there must be a residence, and the intention to make it a home or to live there permanently or indefinitely. State v. Williams, [224 N.C. 183 (1944), 29 S.E.2d 744].' Bryant v. Bryant, 1947, 228 N.C. 287, 289, 45 S.E.2d 572.
"* * * In Williams v. State of North Carolina, 1945, 325 U.S. 226, 229, 65 S. Ct. 1092, 89 L. Ed. 157 it is said: `Under our system of law, judicial power to grant a divorcejurisdiction, strictly speakingis founded on domicil. Bell v. Bell, 181 U.S. 175, 21 S. Ct. 551, 45 L. Ed. 804; Andrews v. Andrews, 188 U.S. 14, 23 S. Ct. 237, 47 L. Ed. 366. The framers of the Constitution were familiar with this jurisdictional prerequisite, and since 1789 neither this Court nor any other court in the English-speaking world has questioned it. Domicil implies a nexus between persons and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The domicil of one spouse within a State gives power to that State, we have held, to dissolve a marriage wheresoever contracted.'
"`In a strict legal sense that place is properly the domicil of a person where he has his true permanent home and principal establishment, and to which he has, whenever he is absent, the intention of returning, and from which he has no present intention of moving.' 17A Am.Jur., Domicil, § 2, pp. 194-5."
And in Hart v. Queen City Coach Co., 241 N.C. 389, 85 S.E.2d 319, 321, Higgins, J., quotes with approval from Central Manufacturers Mut. Ins. Co. of Van Wert, Ohio v. Friedman, 213 Ark. 9, 209 S.W.2d 102, 1 A.L.R. 2d 557 as follows: "The domicile of a soldier or sailor in the military or naval service of his country generally remains unchanged, domicile being neither gained nor lost by being temporarily stationed in the line of duty at a particular place, even for a period of years. A new *716 domicile may, however, be acquired if both the fact and the intent concur." See also: 19 C.J. 418; 28 C.J.S. Domicile § 12; 17A Am.Jur. Domicile, S. 40, p. 227; Trigg v. Trigg, 226 Mo.App. 284, 41 S.W.2d 588; Kennedy v. Kennedy, 205 Ark. 650, 169 S.W.2d 876.
Thus it appears that the charge was presented to the jury correctly and free of error.
Moreover, all assignments of error brought forth by defendant have been given consideration and fail to show cause for disturbing the decision reached in the court below.
In the judgment below there is
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323154/ | 535 F.3d 838 (2008)
Thomas G. REDD, Petitioner,
v.
Michael B. MUKASEY, Attorney General of the United States of America, Respondent.
No. 07-3263.
United States Court of Appeals, Eighth Circuit.
Submitted: June 13, 2008.
Filed: July 29, 2008.
*840 Patricia G. Mattos, St. Paul, MN, for petitioner.
Sharon M. Clay, USDOJ, OIL, Washington, DC, for respondent.
Before SMITH and GRUENDER, Circuit Judges, and ROSENBAUM,[1] District Judge.
GRUENDER, Circuit Judge.
Thomas Redd, a native and citizen of Liberia, petitions for review of a Board of Immigration Appeals ("BIA") decision affirming the immigration judge's ("IJ") denial of Redd's application for asylum.[2] For the reasons discussed below, we deny Redd's petition for review.
I. BACKGROUND
Redd entered the United States lawfully as a non-immigrant visitor for business in June 2003. Redd was authorized to remain in the United States until December 20, 2003, but remained after that date. The Department of Homeland Security initiated removal proceedings against him. At the removal hearing, Redd conceded the charge of removability and admitted that he had remained in the United States without authorization.
Redd sought asylum based on his membership in the Krahn, an ethnic group of native Liberians, which he feared made him a target for persecution. Redd alleges that he was detained by Sahr Gbollie, a Liberian police official, one or two months prior to October 14, 2000. Gbollie demanded that Redd spy on the Krahn and provide information related to the Krahn's opposition to the Charles Taylor government, which was in power in Liberia at the time. Redd said that he agreed to spy on the Krahn because Gbollie held him prisoner for three to four days without food, although he left Redd otherwise unharmed. However, Redd testified that once he was released, he did not provide any useful information to Gbollie.
Redd testified that he was at home with his wife, her parents and several other people on the night of October 14, 2000, when Liberian police officers broke into his house to find him. The police began shooting in his front yard, and during the commotion Redd escaped. The police then raped Redd's wife because they did not believe her when she told them she did not know where Redd was.
Redd fled the area and eventually contacted Patrick Roques, then the chief of security at the United States Embassy in Liberia. Redd testified that Roques gave him a letter from Gbollie addressed to Colonel Gabriel Duwanna ("Gbollie letter"), dated October 13, 2000, the day before his wife's rape, that stated Redd had played a "game" with Gbollie, was "to be eliminated without delay," and "deserved to die." Redd carried the Gbollie letter with him at all times until turning it over to the IJ at the removal hearing, along *841 with his Liberian passport. He claimed that he was able to carry these documents with him in Liberia despite passing through numerous checkpoints staffed by the Charles Taylor government, for which Gbollie worked, and that he had no difficulties leaving Liberia for the United States using his own passport.
Redd's wife also testified on his behalf. She confirmed that she had been raped by police officers on October 14, 2000. However, she also stated that Redd had not been home the night she was raped. When asked if she had seen her husband around the time of the rape, she replied that she had not but that sometimes "he would send somebody to tell [her] what to do."
In support of his testimony, Redd offered an affidavit from Roques. The affidavit supported some of Redd's statements but contained several inconsistencies. Roques averred that Redd had been flogged, but Redd had denied that he was harmed while in custody. Roques's affidavit also states that "Redd and his family were strongly advised by close associates of the Liberian National Police to leave the country without delay," which Redd never mentioned in his testimony.
The IJ denied all of Redd's claims primarily because she found that he was not credible. First, Redd testified that he was at home on the night of his wife's rape; she stated that Redd had not been home all day. Second, Redd stated that his wife's parents were in the home on the night of her rape; she testified that her parents were not present that night. Third, the IJ found it was "not credible and implausible" that Redd would carry the Gbollie letter, which ordered Redd's execution, through checkpoints staffed by representatives of the Charles Taylor government, casting doubt on the letter's authenticity. Fourth, the IJ found incredible Redd's claim that he was able to leave Liberia using his own passport if he were being sought by the government. Fifth, Roques's affidavit stated that Redd had been flogged while in Gbollie's custody, but Redd testified that he had not been harmed.
The IJ alternatively found that Redd's experiences did not rise to the level of persecution even if his testimony was assumed to be credible. She also determined that Redd had not established a well-founded fear of future persecution because the Charles Taylor regime was no longer in power in Liberia and Redd had presented no evidence as to Gbollie's current position. She further noted that conditions in the country had changed and that Charles Taylor was out of power and on trial for his actions. The IJ found that Redd failed to meet his burden of proof for asylum, and consequently he could not show that it was more likely than not that he would be persecuted if he returned to Liberia. The IJ then determined that Redd failed to show that it was more likely than not that he would be tortured by the government or someone acting on behalf of the government if he returned to Liberia. Therefore, the IJ also denied withholding of removal and relief under the CAT. Finally, the IJ denied voluntary departure as a matter of her discretion based on her credibility findings.
Redd appealed to the BIA, which adopted and affirmed the IJ's decision. Redd now petitions for review, arguing that the BIA erred in affirming the IJ's negative credibility finding and erred in determining that, even if he was credible, Redd failed to demonstrate a well-founded fear of future persecution.
II. DISCUSSION
Where the BIA adopts and affirms the IJ's decision and adds its own reasoning, we review both decisions together. Setiadi *842 v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006). We review questions of law de novo. Turay v. Ashcroft, 405 F.3d 663, 666 (8th Cir.2005). We affirm the BIA's and IJ's findings if they are supported by substantial evidence. See Diallo v. Mukasey, 508 F.3d 451, 454 (8th Cir.2007); Ibrahim v. Gonzales, 434 F.3d 1074, 1078-79 (8th Cir.2006). "This is an extremely deferential standard of review. Under the substantial evidence standard, the agency's findings of fact must be upheld unless the alien demonstrates that the evidence he presented not only supports a contrary conclusion, but compels it." Al Yatim v. Mukasey, 531 F.3d 584, 587 (8th Cir.2008) (internal quotations and citation omitted) (alteration omitted).
"The Attorney General has discretion to grant asylum to ... an alien who is unable or unwilling to return to [his] home country because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Averianova v. Mukasey, 509 F.3d 890, 895 (8th Cir.2007) (quotation omitted); see 8 U.S.C. §§ 1101(a)(42)(A) and 1158(b)(1); 8 C.F.R. § 208.13. "The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee." 8 U.S.C. § 1158(b)(1)(B)(ii). Therefore, while an applicant is not required to produce corroborating evidence, he must satisfy the trier of fact that his testimony is credible. A credibility determination is a finding of fact, and we should accept adverse credibility findings "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Singh v. Gonzales, 495 F.3d 553, 556 (8th Cir.2007). "The combination of an adverse credibility finding and a lack of corroborating evidence for the claim of persecution means that the applicant's claim fails, regardless of the reason for the alleged persecution." Averianova, 509 F.3d at 895 (internal quotation omitted). Further, a fact-finder "may base an adverse credibility finding on the implausibility of an alien's testimony, as long as" the IJ explains her reasons for disbelief. Onsongo v. Gonzales, 457 F.3d 849, 853 (8th Cir.2006) (internal quotations omitted). Moreover, "[w]hile minor inconsistencies and omissions will not support an adverse credibility determination, inconsistencies or omissions that relate to the basis of persecution are not minor but are at the heart of the asylum claim." Jalloh v. Gonzales, 423 F.3d 894, 898 (8th Cir.2005) (quotation omitted). We conclude that because Redd failed to meet his burden of demonstrating his credibility based on the inconsistencies and implausibility of his testimony and failed to provide corroborating evidence for his persecution claim, his claim for asylum fails.
Redd's testimony that he was at home on October 14, 2000, the night his wife was raped, conflicts with his wife's testimony that he was not at home that night and had not been in the home for at least a month prior to that date. He further testified that his wife's parents were in the home that night, yet his wife testified that her parents did not live with them and were not in the house that night. When given the opportunity to explain the differences in the testimony, Redd was unable to provide a satisfactory explanation. Redd also testified that he was not hurt while in custody, but the affidavit Redd offered from Roques claimed that Redd had been flogged for failing to cooperate with Gbollie.
Redd attempts to explain these inconsistencies by arguing that his wife's testimony was confusing and incomprehensible because *843 of the trauma from the rape, and, thus, the IJ should not have considered her testimony in determining Redd's credibility. However, she clearly stated in her testimony, for example, that her parents were not in the home on the night of October 14, 2000. While not all of her testimony was completely coherent, the IJ was not required to disregard statements she made that clearly conflicted with Redd's testimony. Redd argues that Roques's statement that Redd was flogged simply reflected Roques's mistaken belief that he was flogged and was only a minor error. However, in a section entitled "Background on how I got to know Thomas G. Redd," the affidavit states unequivocally that "he (Redd) was flogged." These unexplained inconsistencies go to the heart of the asylum claim as they directly relate to Redd's claims of past persecution and, therefore, support the IJ's determination that Redd was not credible.
The IJ also provided sufficient reasons for her conclusion that portions of Redd's testimony were implausible. Redd testified that Roques gave him the Gbollie letter stating that Redd was "to be eliminated without delay." Redd testified that he carried the Gbollie letter with him, along with his passport, everywhere from approximately December 2000 until he came to the United States in June 2003, even as he traveled through Liberia and passed through checkpoints staffed by representatives of the Charles Taylor government. We agree with the IJ that it seems contrary to common sense that Redd would carry a letter ordering his death, much less that he would be allowed to pass through government-staffed checkpoints repeatedly while carrying it. It is also implausible that the Charles Taylor government would allow him to leave Liberia using his own passport if the government actually wanted him killed.
Redd argues that in determining that certain parts of his story were implausible, the IJ ignored the record and engaged in "speculation." "We have in the past refused to disturb IJs' findings based on assessments of plausibility, even though such assessments must ultimately depend on the fact-finder's notions of common sense and life experience." Chen v. Mukasey, 510 F.3d 797, 802 (8th Cir.2007) (collecting cases). "While in certain cases, we have disagreed with the IJ's assessments of plausibility, we have done so only where the IJ's finding was irrational or based on improper bias." Id. (citations omitted). Here, we cannot conclude that the IJ's determination that Redd's story of crossing multiple checkpoints with the Gbollie letter and leaving the country under his own name was irrational or based on improper bias. Therefore, we accept the IJ's adverse credibility determination because we conclude that no reasonable adjudicator would be compelled to conclude to the contrary.
Further, Redd failed to demonstrate that the evidence he provided corroborated his claims. In fact, the evidence he offered, including Roques's affidavit and the Gbollie letter, actually supports the IJ's adverse credibility finding because the allegedly corroborating evidence supports the conclusion that Redd's testimony was inconsistent and implausible. The allegedly corroborating evidence that is not inconsistent with his testimony offers insufficient independent evidence of past persecution. Therefore, we conclude that substantial evidence supports the determination that Redd did not offer sufficient corroborating evidence to support his claim of past persecution. Because the testimony was incredible and because there is no corroborating evidence for his claim, Redd's asylum claim fails. See Averianova, 509 F.3d at 895.
*844 Finally, even if we assumed that Redd was credible and that he had established past persecution, we would conclude that substantial evidence supports the IJ's determination that Redd had not adequately demonstrated a well-founded fear of future persecution and would deny his claim for asylum. Generally, a demonstration of past persecution gives rise to a presumption of a well-founded fear of future persecution, 8 C.F.R. § 208.13(b)(1), which establishes eligibility for asylum, 8 U.S.C. § 1101(a)(42)(A). However, this presumption may be rebutted upon a showing that "[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in [his] country of nationality." 8 C.F.R. § 208.13(b)(1)(i)(A); see also Turay, 405 F.3d at 667. Here, we note that Charles Taylor has been removed from power in Liberia and is now on trial in The Hague for war crimes and crimes against humanity and that Redd does not present any evidence that the members of the Krahn tribe are currently being persecuted in Liberia. Redd offers no evidence to demonstrate that, beyond general strife in Liberia, it would be dangerous for him, as a member of the Krahn tribe, to return now that the Charles Taylor government is no longer in control. See Kamara v. Gonzales, 180 Fed.Appx. 623, 626-27 (8th Cir.2006) (unpublished) (upholding IJ's determination that, because Charles Taylor was no longer in power, applicant's "fears were no more than fears of the general civil strife that affects all Liberians," which is "not a basis for granting asylum").
III. CONCLUSION
Accordingly, we deny Redd's petition for review.
NOTES
[1] The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota, sitting by designation.
[2] The IJ and BIA also rejected Redd's claim for withholding of removal and protection under the Convention Against Torture ("CAT"). Because Redd does not argue these issues in his brief, we do not consider them as part of the petition for review. See Alyas v. Gonzales, 419 F.3d 756, 760 (8th Cir.2005). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323684/ | 211 S.E.2d 536 (1975)
24 N.C. App. 516
Marcie Gaynell EUDY
v.
Van Patrick EUDY.
No. 7420DC880.
Court of Appeals of North Carolina.
February 5, 1975.
Certiorari Allowed April 2, 1975.
*537 Henry T. Drake, Wadesboro, and James E. Griffin, Monroe, for plaintiff-appellee.
Coble Funderburk and Clark & Griffin by Richard S. Clark and Lewis R. Fisher, Monroe, for defendant-appellant.
Certiorari Allowed by Supreme Court April 2, 1975.
BRITT, Judge.
The complaint alleges an action for alimony without divorce; it does not allege an action for divorce from bed and board and does not ask for that relief. It appears from certain interlocutory orders entered, particularly Judge Crutchfield's order dated 25 August 1972, that prior to trial the cause was treated as an action for alimony without divorce. While the court at trial did not submit all the issues required in an action for divorce from bed and board, it charged the jury with respect thereto and in the judgment granted plaintiff a divorce from bed and board. Although defendant has not assigned this as error, we feel that it is error appearing upon the face of the record which we cannot ignore.
*538 It is clear that in order to obtain a valid divorce in North Carolina, the plaintiff or defendant must have resided in this State for at least six months next preceding the institution of the action for divorce. G.S. § 50-8. The residence requirement is jurisdictional. Donnell v. Howell, 257 N.C. 175, 125 S.E.2d 448 (1962). The cited statute requires that the plaintiff set forth in his or her verified complaint ". . . that the complainant or defendant has been a resident of the State of North Carolina for at least six months next preceding the filing of the complaint ..." The period of residence applies to an action for divorce from bed and board as well as to an action for absolute divorce. G.S. § 50-8. 1 Lee, North Carolina Family Law § 42, at 190.
The complaint filed in this action does not allege that either party had resided in the State for six months next preceding institution of the action. We are aware of the amendment of the pleadings by implied consent principle envisioned by G.S. § 1A-1, Rule 15(b), and approved in Roberts v. Memorial Park, 281 N.C. 48, 187 S.E.2d 721 (1972), but do not think the principle would apply in this case where the omitted allegation was necessary to confer jurisdiction. We hold that the trial court erred in treating this cause as an action for divorce from bed and board.
Defendant contends the court erred in charging the jury on constructive abandonment. We agree with the contention. In 3 Strong, N.C. Index 2d Divorce and Alimony § 8, at 330, we find: "It is not necessary, to constitute abandonment of a wife by the husband, that he leave her, but he may constructively abandon her by treating her with such cruelty as to compel her to leave him...."
In the instant case, there was no contention, or evidence tending to show, that plaintiff left defendant; her evidence tended to show an actual abandonment by defendant. It is true that defendant contended that his separation from plaintiff was justified by her wrongful conduct toward him, and it might be argued that there is a similarity between conduct constituting constructive abandonment and conduct justifying one spouse to separate from the other. Nevertheless, we think defendant was entitled to have his defense of justification in leaving plaintiff submitted on instructions that were clear and unambiguous.
We hold that the errors discussed above were sufficiently prejudicial to compel vacating the judgment and awarding a new trial.
With respect to the findings of fact, conclusions of law and award of alimony and attorney fees, defendant contends the trial court did not find sufficient facts to permit a fair and complete review by the appellate court. We agree with this contention.
G.S. § 50-16.5(a) provides that "[a]limony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case."
In the case at bar, the court made certain findings as to the estate, income and expenses of plaintiff, but it failed to make sufficient findings as to the estate, earnings, income and expenses of defendant. See Briggs v. Briggs, 21 N.C.App. 674, 205 S.E.2d 547 (1974). For example, the court found that defendant received a salary in excess of $11,000 per year; although there was evidence tending to show defendant's compensation after deductions for retirement and income taxes was much less, the court made no finding as to that. The court made no finding as to defendant's other expenses and obligations. Considerable evidence was presented as to income received by the parties many months prior to the trial, but an award of alimony should be based on the estate, earnings, income, obligations and expenses of the parties at the time the award is made. Robinson v. *539 Robinson, 10 N.C.App. 463, 179 S.E.2d 144 (1971).
For the reasons stated, the judgment appealed from is vacated and this cause is remanded for a new trial.
BROCK, C. J., and CLARK, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312878/ | Plaintiffs contend the Final Rule is in excess of the agency's statutory authority, is arbitrary and capricious, violates the Administrative Procedures Act, violates Title X requirements, violates congressional Non-directive Mandates, violates Section 1554 of the Patient Protection and Affordable Care Act ("ACA"), and is otherwise unconstitutional.
Plaintiffs assert the Final Rule is not designed to further the purposes of Title X, which is to equalize access to comprehensive, evidence-based, voluntary family planning. Rather it is designed to exclude and eliminate health care providers who provide abortion care and referral-which by extension will impede patients' access to abortion-even when Title X funds are not used to provide abortion care, counseling or referral.
Plaintiffs also believe the Final Rule appears to be designed to limit patients' access to modern, effective, medically approved contraception and family planning health care. Plaintiffs argue the Final Rule was designed by the Department to direct Title X funds to providers who emphasize ineffective and inefficient family planning.
Finally, Plaintiffs believe the Final Rule is politically motivated and not based on facts. Instead, it intentionally ignores comprehensive, ethical, and evidence-based health care, and impermissibly interferes with the patient-doctor relationship.
Defendants assert the Final Rule adopted by the Secretary is consistent with the Administrative Procedures Act, *1124consistent with Title X, the Non-directive Mandates, and Section 1554 of the ACA1 , and is otherwise constitutional.
Defendants believe the Final Rule is indistinguishable from regulations adopted over 30 years ago, which were held to be valid by the United States Supreme Court in Rust v. Sullivan , 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). Finally, Defendants argue Plaintiffs have not shown, at this early stage in the litigation, that the Final Rule violates Section 1008 of Title X-in fact, Plaintiffs cannot make that showing-primarily because of Rust.
At issue in this hearing are Plaintiffs' Motions for Preliminary Injunction. The Final Rule is scheduled to take effect on May 3, 2019. Plaintiffs seek to preserve the status quo pending a final determination on the merits.
Motion Standard
"A preliminary injunction is a matter of equitable discretion and is 'an extraordinary remedy that may only be awarded upon a clear showing that a plaintiff is entitled to such relief.' " California v. Azar , 911 F.3d 558, 575 (9th Cir. 2018) (quoting Winter v. NRDC , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ). "A party can obtain a preliminary injunction by showing that (1) it is 'likely to succeed on the merits,' (2) it is 'likely to suffer irreparable harm in the absence of preliminary relief,' (3) 'the balance of equities tips in [its] favor,' and (4) 'an injunction is in the public interest.' " Disney Enters., Inc. v. VidAngel, Inc. , 869 F.3d 848, 856 (9th Cir. 2017) (alteration in original) (quoting Winter , 555 U.S. at 20, 129 S.Ct. 365 ). The Ninth Circuit uses a "sliding scale" approach in which the elements are "balanced so that a stronger showing of one element may offset a weaker showing of another." Hernandez v. Sessions , 872 F.3d 976, 990 (9th Cir. 2017) (quotation omitted). When the government is a party, the last two factors merge. Drakes Bay Oyster Co. v. Jewell , 747 F.3d 1073, 1092 (9th Cir. 2014). This means that when the government is a party, the court considers the balance of equities and the public interest together. Azar , 911 F.3d at 575. "[B]alancing the equities is not an exact science." Id. (quoting Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 609, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Frankfurter, J., concurring) ("Balancing the equities ... is lawyers' jargon for choosing between conflicting public interests") ).
Likelihood of success on the merits is the most important factor; if a movant fails to meet this threshold inquiry, the court need not consider the other factors. Disney , 869 F.3d at 856 (citation omitted). A plaintiff seeking preliminary relief must "demonstrate that irreparable injury is likely in the absence of an injunction." Winter , 555 U.S. at 22, 129 S.Ct. 365. The analysis focuses on irreparability, "irrespective of the magnitude of the injury." Simula, Inc. v. Autoliv, Inc. , 175 F.3d 716, 725 (9th Cir. 1999). Economic harm is not normally considered irreparable. L.A. Mem'l Coliseum Comm'n v. Nat'l Football League , 634 F.2d 1197, 1202 (9th Cir. 1980).
" '[I]njunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs' before the Court."
*1125L.A. Haven Hospice, Inc. v. Sebelius , 638 F.3d 644, 664 (9th Cir. 2011) (quoting Califano v. Yamasaki , 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). This is particularly true where there is no class certification. See Easyriders Freedom F.I.G.H.T. v. Hannigan , 92 F.3d 1486, 1501 (9th Cir. 1996) ("[I]njunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification."); Meinhold v. U.S. Dep't of Defense , 34 F.3d 1469, 1480 (9th Cir.1994) (district court erred in enjoining the defendant from improperly applying a regulation to all military personnel (citing Califano , 442 U.S. at 702, 99 S.Ct. 2545 ) ).
That being said, there is no bar against nationwide relief in the district courts or courts of appeal, even if the case was not certified as a class action, if such broad relief is necessary to give prevailing parties the relief to which they are entitled. Bresgal v. Brock , 843 F.2d 1163, 1170-71 (9th Cir. 1987).
Federal Administrative Agency Rule-Making
Federal administrative agencies are required to engage in "reasoned decisionmarking." Michigan v. E.P.A. , --- U.S. ----, 135 S.Ct. 2699, 192 L.Ed.2d 674 (2015). "Not only must an agency's decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational." Id. (quoting Allentown Mack Sales & Service, Inc. v. NLRB , 522 U.S. 359, 374, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998) ).
Administrative Procedures Act
The Administrative Procedure Act "sets forth the full extent of judicial authority to review executive agency action for procedural correctness." FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). Under the arbitrary and capricious standard contained in the APA, a reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 42, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). "The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. at 43, 103 S.Ct. 2856. (quotation omitted). An agency rule is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id.
An agency must consider and respond to significant comments received during the period for public comment. Perez v. Mortgage Bankers Ass'n , --- U.S. ----, 135 S.Ct. 1199, 1203, 191 L.Ed.2d 186 (2015). The public interest is served by compliance with the APA. Azar , 911 F.3d at 581. "The APA creates a statutory scheme for informal or notice-and-comment rulemaking reflecting a judgment by Congress that the public interest is served by a careful and open review of proposed administrative rules and regulations." Alcaraz v. Block , 746 F.2d 593, 610 (9th Cir. 1984) (internal quotation marks and citation omitted). "It does not matter that notice and comment could have changed *1126the substantive result; the public interest is served from proper process itself." Azar , 911 F.3d at 581.
History of Title X
"No American woman should be denied access to family planning assistance because of her economic condition. "2
In 1970, Congress created the Title X program3 to address low-income individuals' lack of equal access to the same family planning services, including modern, effective medical contraceptive methods such as "the Pill," available to those with greater economic resources. NFPRHA, et al. Complaint, 1:19-cv-3045-SAB, ECF No. 1, ¶ 4. Title X monetary grants support family planning projects that offer a broad range of acceptable and effective family planning methods and services to patients on a voluntary basis, 42 U.S.C. § 300(a), creating a nationwide of Title X health care providers. Id. at ¶ 5. Title X gives those with incomes below or near the federal poverty level free or low-cost access to clinical professional, contraceptive methods and devices, and testing and counseling services related to reproductive health, including pregnancy testing and counseling. Id. Over almost five decades, Title X funding has built and sustained a national network of family planning health centers that delivers high-quality care. Id. at ¶ 41. It has enabled millions of low-income patients to prevent unintended pregnancies and protect their reproductive health. Id. Approximately 90 federal grants, totaling approximately $ 260 million, for Title X projects now fund more than 1000 provider organizations across all the states and in the U.S. territories, with more than 3800 health centers offering Title X care. Id. at ¶ 6, ¶ 52. In 2017, the Title X program served more than four million patients. Id.
Washington's Department of Health ("DOH") Family Planning Program is the sole grantee of Title X funds in Washington State. Decl. of Cynthia Harris, ECF No. 11 at ¶ 14. It provides leadership and oversight to its Family Planning Network of 16 subrecipients offering Title X services at 85 service sites. Id. at ¶ 4. The Family Planning Program collaborates with other programs in the DOH, other state agencies, subrecipient network organizations, and other family planning, primary health care, and social service organizations to ensure that Title X services are available statewide on issues related to women's health, adolescent health, family planning, sexually transmitted infection (STI) and Human Immunodeficiency Virus (HIV) prevention and treatment, intimate partner violence, and unintended pregnancy. Id.
NFPRHA represents more than 850 health care organizations in all 50 states, the District of Columbia and the U.S. territories, as well as individual professional members with ties to family planning care. ECF No. 19 at ¶ 5. NFPRHA currently has more than 65 Title X grantee members and almost 700 Title X subrecipient members. These NFPRHA member organizations operate or fund a network of more than 3,500 health centers that provide family planning services to more than 3.7 million Title X patients each year. Id. at ¶ 7.
The scope of the care provided by Title X programs is summarized in OPA's current Program Requirements:
*1127All Title X-funded projects are required to offer a broad range of acceptable and effective medically (U.S. Food and Drug Administration (FDA) ) approved contraceptive methods and related services on a voluntary and confidential basis. Title X services include the delivery of related preventive health services, including patient education and counseling; cervical and breast cancer screening ; sexually transmitted disease (STD) and human immunodeficiency virus (HIV) prevention education, testing and referral; and pregnancy diagnosis and counseling.
POA, Program Requirements for Title X Funded Family Planning Projects , at 5 (Apr. 2014), https://www.hhs.gov/opa.sites/default/files/Title-X-2014-Program Requirements.pdf ("Program Requirements"). Title X projects also provide basis infertility services, such as testing and counseling. 1:19-cv-3045-SAB, ECF No. 1, at ¶ 43.
The Title X statute has always provided that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." 42 U.S.C. § 300a-6 ("Section 1008"). The statute authorizes the Secretary to promulgate regulations governing the program. 42 U.S.C. § 300a-4.
The Secretary adopted regulations in 1971 and they remained in effect until 1988 when the Secretary adopted final regulations that drastically altered the landscape in which Title X grantees operated. To summarize, the 1988 regulations:
• Prohibited Title X projects from counseling or referring clients for abortion as a method of family planning;
• Required grantees to separate their Title X project-physically and financially-from prohibited abortion-related activities
• Established compliance standards for family planning projects
• Prohibited certain actions that promote, encourage, or advocate abortion as method of family planning, such as using project funds for lobbying for abortion, developing and disseminating materials advocating abortion, or taking legal action to make abortion available as a method of family planning.
Those regulations were challenged in federal courts and ultimately upheld by the United States Supreme Court. See Rust v. Sullivan , 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)4 . The 1988 rules were never fully implemented due to ongoing litigation and bipartisan concern over its invasion of the medical provider-patient relation. State of Washington, Complaint, ECF No. 1 at ¶ 30.
In 1993, President Clinton suspended the 1988 Regulations by way of a Presidential memorandum to the Department:
Title X of the Public Health Services Act [this subchapter] provides Federal funding for family planning clinics to provide services for low-income patients. The Act specifies that Title X funds may not be used for the performance of abortions, but places no restrictions on the ability of clinics that receive Title X
*1128funds to provide abortion counseling and referrals or to perform abortions using non-Title X funds. During the first 18 years of the program, medical professionals at Title X clinics provided complete, uncensored information, including nondirective abortion counseling. In February 1988, the Department of Health and Human Services adopted regulations, which have become known as the "Gag Rule," prohibiting Title X recipients from providing their patients with information, counseling or referrals concerning abortion. Subsequent attempts by the Bush Administration to modify the Gag Rule and ensuing litigation have created confusion and uncertainty about the current legal status of the regulations.
The Gag Rule endangers women's lives and health by preventing them from receiving complete and accurate medical information and interferes with the doctor-patient relationship by prohibiting information that medical professionals are otherwise ethically and legally required to provide to their patients. Furthermore, the Gag Rule contravenes the clear intent of a majority of the members of both the United States Senate and House of Representatives, which twice passed legislation to block the Gag Rule's enforcement but failed to override Presidential vetoes.
For these reasons, you have informed me that you will suspend the Gag Rule pending the promulgation of new regulations in accordance with the "notice and comment" procedures of the Administrative Procedure Act [ 5 U.S.C.A. §§ 551 et seq., 701 et seq. ].
"The Title X Gag Rule," Memorandum for the Secretary of Health and Human Services, 1993 WL 366490 (Jan. 22, 1993).
New regulations were finalized in 2000, 65 Fed. Reg. 41270 (Jul. 3, 2000), codified at 42 C.F.R. Pt. 59, and these regulations remain in effect unless and until the new Final Rule is implemented.
Congressional Intent / The Department's Program Requirements
Plaintiffs argue that laws passed by Congress since Rust limit the Department's discretion in implementing Title X regulations. These laws include Section 1554 of the ACA and congressional Non-directive Mandates contained in appropriation bills. They also rely on the Department's own program requirements to support their arguments.
1. § 1554 of the ACA
Section 1554 of the ACA states:
Notwithstanding any other provision of this Act, the Secretary of Health and Human Services shall not promulgate any regulation that--
(1) creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care;
(2) impedes timely access to health care services;
(3) interferes with communications regarding a full range of treatment options between the patient and the provider;
(4) restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions;
(5) violates the principles of informed consent and the ethical standards of health care professionals; or
(6) limits the availability of health care treatment for the full duration of a patient's medical needs.
42 U.S.C. § 18114.
2. Appropriations Mandate
With the Non-directive Mandate, Congress has explicitly required every year *1129since 1996 that "all pregnancy counseling [in Title X projects] shall be nondirective." NFPRHA, et al. Complaint, 1:19-cv-3045-SAB, ECF No. 1, at ¶ 78. Non-directive counseling provides the patient with all options relating to her pregnancy, including abortion. Id. at ¶ 76. Congress has been providing Non-directive Mandates in its appropriations bills for the past 24 years.
3. Department of Health and Human Services Program Requirements / Quality Family Planning
Title X grantees are required to follow the Quality Family Planning (QFP) guidelines, issued by the Centers for Disease Control and Prevention and OPA. State of Washington, Complaint, ECF No. 1, at ¶ 45. This document reflects evidence-based best practices for providing quality family planning services in the United States.5 It requires that options counseling should be provided to pregnant patients as recommended by the American College of Obstetricians and Gynecologists and others, including that patients with unwanted pregnancy should be "fully informed in a balanced manner about all options, including raising the child herself, placing the child for adoption, and abortion." Id. at ¶ 46.
The Department's Program Requirements require Title X projects to provide nondirective pregnancy counseling. Id. at ¶ 44.
Federal Conscience Laws
In the Executive Summary of the Final Rule, the Department indicates that one of the purposes of revising the Title X regulations was to eliminate provisions which are inconsistent with the health care conscience statutory provisions. 84 Fed. Reg. 7714, 7716. These provisions include the Church Amendment, the Coats-Snowe Amendment and the Weldon Amendment. Id.
1. The Church Amendment
"The Church Amendments, among other things, prohibit certain HHS grantees from discriminating in the employment of, or the extension of staff privileges to, any health care professional because they refused, because of their religious beliefs or moral convictions, to perform or assist in the performance of any lawful sterilization or abortion procedures. The Church Amendments also prohibit individuals from being required to perform or assist in the performance of any health service program or research activity funded in whole or in part under a program administered by the Secretary contrary to their religious beliefs or moral convictions. See 42 U.S.C. 300a-7." 84 Fed. Reg. at 7716, n.7.
2. 1996 Coats-Snowe Amendment
"The Coats-Snowe Amendment bars the federal government and any State or local government that receives federal financial assistance from discriminating against a health care entity, as that term is defined in the Amendment, who refuses, among other things, to provide referrals for induced abortions. See 42 U.S.C. 238n(a)." 84 Fed. Reg. at 7716, n.8.
3. 2005 Weldon Amendment
"The Weldon Amendment was added to the annual 2005 health spending bill and has been included in subsequent appropriations bills." 84 Fed. Reg. at 7716, n. 9.
*1130"The Weldon Amendment bars the use of appropriated funds on a federal agency or programs, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not, among other things, refer for abortions." Id.
Analysis
As set forth above, the Ninth Circuit uses a sliding scale approach in determining whether it is appropriate to grant a preliminary injunction. Although Plaintiffs have met their burden of showing that all four factors tip in their favor, the irreparable harm and balance of equities factors tip so strongly in Plaintiffs' favor that a strong showing of likelihood on the merits was not necessary.
1. Likelihood of Success on the Merits
Plaintiffs have presented reasonable arguments that indicate they are likely to succeed on the merits, thus meeting the threshold inquiry. In so finding, the Court has not concluded that Plaintiffs will definitely prevail on the merits, nor has it concluded that they are more likely going to prevail. The preliminary injunction standard requires neither of these conclusions. See Azar , 911 F.3d at 582 ("The purpose of such interim equitable relief is not to conclusively determine the rights of the parties but to balance the equities as the litigation moves forward.") (quoting Trump v. Int'l Refugee Assistance Proj. , --- U.S. ----, 137 S.Ct. 2080, 2087, 198 L.Ed.2d 643 (2017) ). Rather, it requires a determination that Plaintiff has made a colorable claim-a claim that has merit and a likely chance of success.
First, Plaintiffs have presented initial facts and argument that the separation requirement in the Final Rule forces clinics that provide abortion services to maintain separate facilities and finances for Title X programs will more likely than not increase their expenses unnecessarily and unreasonably.
Second, Plaintiffs have presented initial facts and argument that the Final Rule gag requirement would be inconsistent with ethical, comprehensive, and evidence-based health care.
Third, Plaintiffs have presented initial facts and argument that the Final Rule violates Title X regulations, the Non-directive Mandates and Section 1554 of the Affordable Care Act and is also arbitrary and capricious.
Specifically, Plaintiffs have demonstrated the Final Rule likely violates the central purpose of Title X, which is to equalize access to comprehensive, evidence-based, and voluntary family planning. They have presented facts and argument that the Final Rule violates the Non-directive Mandate because it requires all pregnant patients to receive referrals for pre-natal care, regardless of whether the patient wants to continue the pregnancy, and regardless of the best medical advice and treatment that might be recommended for that patient.
They have also presented facts and argument that the Final Rule likely violates Section 1554 of the ACA because the Final Rule creates unreasonable barriers for patients to obtain appropriate medical care; impedes timely access to health care services; interferes with communications regarding a full range of treatment options between the patient and the health care provider, restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions, and violates the principles of informed consent and the ethical standards of health care professions.
*1131Fourth, Plaintiffs, with the help from Amicus parties, have presented facts and argument that the Final Rule is arbitrary and capricious because it reverses long-standing positions of the Department without proper consideration of sound medical opinions and the economic and non-economic consequences.
Finally, Plaintiffs have presented facts and argument that the Department failed to consider important factors, acted counter to and in disregard of the evidence in the administrative record and offered no reasoned analysis based on the record. Rather, it seems the Department has relied on the record made 30 years ago, but not the record made in 2018-19.
2. Irreparable Harm
Plaintiffs have demonstrated they are likely to suffer irreparable harm in the absence of a preliminary injunction by presenting facts and argument that the Final Rule may or likely will: (1) seriously disrupt or destroy the existing network of Title X providers in both the State of Washington and throughout the entire nation-this network has been carefully knit together over the past 45 years and there is no evidence presented by the Department that Title X is being violated or ignored by this network of providers; (2) impose additional and unnecessary costs on the State of Washington and other states; (3) harm the health of the patients who rely on the existing Title X providers; and (4) drive many Title X providers from the system either because of the increased costs imposed by the new separation requirements or because they cannot or will not comply with the allegedly unprofessional gag rule requirements.
Washington State has shown that it is not legally or logistically feasible for Washington to continue accepting any Title X funding subject to the Final Rule. At the minimum, Washington stands to lose more than $ 28 million in savings from the loss of federal dollars. It has demonstrated the harmful consequences of the Final Rule will uniquely impact rural and uninsured patients. If the Final Rule is implemented, over half of Washington counties would be unserved by a Title X-funded family planning provider. Students at Washington colleges and universities will be especially hurt by the Final Rule. DOH reports it does not have the funding that would be required to comply with the Final Rule, nor would it be able to comply with the May 3, 2019 deadline.
NFPRHA currently has more than 65 Title X grantee members and almost 700 Title X sub-recipient members. These NFPRHA member organizations operate or fund a network of more than 3,500 health centers that provide family planning services to more than 3.7 million Title X patients each year. NFPRHA has shown that upon its effective date, the Final Rule will cause all current NFPRHA members grantees, sub-recipients, and their individual Title X clinicians to face a Hobson's Choice that harms patients as well as the providers. Faced with this difficult choice, many NFPRHA members will leave the network once the Final Rule becomes effective, thereby leaving low-income individuals without Title X providers.
It is worth noting that Plaintiffs have submitted substantial evidence of harm, including declarations from Karl Eastlund, President and CEO of Planned Parenthood of Greater Washington and North Idaho, ECF No. 10; Cynthia Harris, program manager for the Family Planning Program, Washington DOH, ECF No. 11; Anuj Khattar, M.D., primary care physician and reproductive health provider, ECF No. 12; Dr. Judy Kimelman, practitioner at Seattle Obstetrics & Gynecology Group, ECF No. 13; Bob Marsalli, CEO of *1132the Washington Association for Community Health, ECF No. 14; David Schumacher, Director of the Office of Financial Management, State of Washington, ECF No. 15; Dr. Judy Zerzan-Thul, Chief Medical Officer for the Washington State Health Care Authority, ECF No. 16; Clare M. Coleman, President and CEO of the National Family Planning & Reproductive Health Association, ECF No. 19; Dr. Kathryn Kost, Acting Vice President of Domestic Research at the Guttmacher Institute, ECF No. 20; Connie Cantrell, Executive Director of the Feminist Women's Health Center, ECF No. 21; Kristin A. Adams, Ph.D, President and CEO of the Indiana Family Health Council, ECF No. 22; J. Elisabeth Kruse, M.S., C.N.M., A.R.N.P, Lead Clinician for Sexual and Reproductive Health and Family Planning at the Public Health Department for Seattle and King County, Washington, ECF No. 23; Tessa Madden, M.D., M.P.H., Director of the Family Planning Division, Department of Obstetrics and Gynecology, Washington University School of Medicine, ECF No. 24; Heather Maisen, Manager of the Family Planning Program in the Public Health Department for Seattle and King County, Washington, ECF No. 25; and Sarah Prager, M.D., Title X Director of the Feminist Women's Health Center, ECF No. 26.
Yet, the Government's response in this case is dismissive, speculative, and not based on any evidence presented in the record before this Court.
3. Balance of Equities/Public Interest
The balance of equities and the public interest strongly favors a preliminary injunction, which tips the scale sharply in favor of Plaintiffs.
There is no public interest in the perpetration of unlawful agency action. Preserving the status quo will not harm the Government and delaying the effective date of the Final Rule will cost it nothing. There is no hurry for the Final Rule to become effective and the effective date of May 3, 2019 is arbitrary and unnecessary.
On the other hand, there is substantial equity and public interest in continuing the existing structure and network of health care providers, which carefully balances the Title X, the congressional Non-directive Mandates, and Section 1554 of the Affordable Care Act, while the legality of the new Final Rule is reviewed and decided by the Court.
Accordingly, IT IS HEREBY ORDERED :
1. The State of Washington's Motion for Preliminary Injunction, ECF No. 9, is GRANTED .
2. National Family Planning & Reproductive Health Center, et al. 's Motion for Preliminary Injunction, ECF No. 18, is GRANTED .
3. Defendants and their officers, agents, servants, employees, and attorneys, and any person in active concert or participation with them, are ENJOINED from implementing or enforcing the Final Rule entitled Compliance with Statutory Program Integrity Requirements , 84 Fed. Reg. 7714-01 (March 4, 2019), in any manner or in any respect, and shall preserve the status quo pursuant to regulations under 42 C.F.R., Pt. 59 in effect as of the date of April 24, 2019, until further order of the Court.
4. No bond shall be required pursuant to Fed. R. Civ. P. 65(c).
IT IS SO ORDERED . The Clerk of Court is directed to enter this Order and forward copies to counsel.
Defendants also argue Plaintiffs have waived their argument that the Final Rule violates Section 1554 of the ACA by failing to refer to Section 1554 in their comments prior to the Final Rule being published. It is doubtful that an APA claim asserting that an agency exceeded the scope of its authority to act can be waived. Moreover, it appears that during the rule making process the agency was apprised of the substance of the violation.
President Nixon, Special Message to the Congress on Problems of Population Growth (July 18, 1969).
Title X became law as part of the "Family Planning Services and Population Research Act of 1970." Pub. L. No. 91-572, 84 Stat. 1504 (1970).
In Rust , the United States Supreme Court held that (1) the regulations were based on permissible construction of the statute prohibiting the use of Title X funds in programs in which abortion is a method of family planning; (2) the regulations do not violate First Amendment free speech rights of Title X fund recipients, their staffs or their patients by impermissibly imposing viewpoint-discriminatory conditions on government subsidies; and (3) regulations do not violate a woman's Fifth Amendment right to choose whether to terminate a pregnancy and do not impermissibly infringe on doctor-patient relationship. 500 U.S. at 184-203, 111 S.Ct. 1759.
"Providing Quality Family Planning Services: Recommendations of CDC and the U.S. Office of Population Affairs," Morbidity and Mortality Weekly Report Vol. 62, No. 4 (April 25, 2014), available at https:www.cdc.gov/mmwr/pdf/rr/rr6304.pdf (last accessed April 24, 2019) (the QFP). | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1727199/ | 735 N.W.2d 203 (2007)
IN RE GUARDIANSHIP OF M.E.B.
No. 06-0583.
Court of Appeals of Iowa.
May 9, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261888/ | 861 F. Supp. 1385 (1994)
Kenneth N. CAMPBELL, Plaintiff,
v.
FASCO INDUSTRIES, INC., a corporation, Defendant.
No. 93 C 0828.
United States District Court, N.D. Illinois, Eastern Division.
August 16, 1994.
*1386 *1387 *1388 Gerald A. Goldman, Arthur R. Ehrlich, Goldman & Marcus, Chicago, IL, for plaintiff.
Michael Alan Reiter, Julie Lynn Schulz, Holleb & Coff, Chicago, IL, for defendant.
MEMORANDUM OPINION AND ORDER
ALESIA, District Judge.
Before the court is the motion of defendant, Fasco Industries, Inc. ("Fasco"), for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the court grants defendant's motion.
I. FACTUAL BACKGROUND[1]
On February 9, 1993, plaintiff Kenneth Campbell filed his Complaint against defendant Fasco alleging that he was discharged in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Plaintiff is a fifty-eight year old former employee of Fasco's Motors Division, which manufactures a broad line of motors, blowers, fans, and other products for a variety of markets including heating, ventilating, air conditioning, compressors, pumps, appliances, machine tools, and aircraft. (Defendant's Statement of Material Facts as to Which There is No Genuine Issue ("Defendant's 12(m) Statement") at 1-2.). In 1980, Fasco was acquired by the Hawker Siddeley Group Public Limited Company of London, England ("Hawker Siddeley"). Hawker Siddeley was in turn acquired by a subsidiary of BTR plc, a British corporation, in 1991. (Id. at 2.)
In or around 1978, Fasco purchased a material requirement planning ("MRP") integrated computer system known as the MRP II system, which used SMI software and Microdata hardware. The MRP II system was designed to track certain cost accounting and manufacturing functions for the Fasco Motors Division, thereby controlling inventory and maximizing cash flow. (Id. at 2-3.) During the first few years after it purchased the MRP II system, Fasco encountered some difficulty utilizing the system to its full potential. (Id. at 3.)
To address the problems Fasco was experiencing with the MRP II system, John Locke, Hawker Siddeley Director of Management Resources in England, decided to create a Fasco Systems Team. In January 1982, Locke hired Dwight Gressel to work on the Systems Team. Gressel had previously worked for Fasco as a consultant and was given the position of Project Leader of Manufacturing on the Systems Team. Locke also hired Joe Bradley as Project Leader of Finance and Rick Green as Project Leader of Data Processing at this time. In March 1982, Locke hired Campbell to be the Systems Team Manager. Gressel was involved in this hiring decision. (Id. at 3.)
*1389 Over the next couple of years, the Systems Team expanded to include up to nine people working either as systems analysts or computer programmers. The team was responsible for the successful operation of the MRP II system at all five plants. The primary task of the Systems Team in the early and mid-1980s was to implement the MRP II system at each Fasco plant. Implementation included training plant employees in the use of the system, creating computer programs to support the system, and troubleshooting to keep the system operating. The MRP II system was in place at Fasco's Motors Division plants until approximately 1990. Around 1988, Fasco decided to replace the MRP II system with a new, more advanced MRP system. (Id. at 4.)
A selection committee was formed to study and choose the replacement system, consisting of Campbell, Gressel, Green, and Dale Rose of the Systems Team, as well as systems coordinators from other departments at Fasco. The plant managers and Milo Evans, the Fasco executive responsible for the Systems Team, were also involved in the selection process. The selection committee reviewed various software and hardware vendors and ultimately chose what is known as the DEC/ASK system. The Systems Team began implementing the DEC/ASK system in Fasco's various plants. As of Campbell's termination on February 18, 1991, the DEC/ASK system had not yet been implemented at two of the Fasco plants. (Id. at 5-6.)
From September 1987 through February 18, 1991, Campbell reported to Milo Evans. It was Evans's responsibility as Division Controller and later as Vice President of Finance to direct the efforts of the Systems Team and to ensure that the team met its objectives. In February 1990, Evans wrote a performance review of Campbell in which Evans gave Campbell an overall unacceptable job rating for 1989. On May 2, 1990, Evans prepared a written evaluation critical of Campbell's performance.[2] Campbell did, however, receive bonuses in 1989 and 1990. (Id. at 6-8.)
In January and February 1991, Evans analyzed Fasco's current and projected financial condition and compiled his findings in two memoranda. In these memoranda, Evans observed that in 1990, the core business of Fasco Motors Division experienced a $16,941,000 decrease in its budget, and a $2,623,000 decrease in sales from 1989. In addition, in 1990, Fasco experienced a trading loss of $34,000 compared to a budgeted profit of $28,395,000. The decline continued in 1991, as Fasco's profits for January 1991 were $292,000, down from $1,052,000 in January 1990. Based on these statistics, Evans concluded that Fasco's profitability was declining in 1991, and recommended that cost reduction programs be implemented. (Id. at 8-9.)
In February 1991, Roderic Karpen, President of Fasco, instituted a salary freeze and directed Evans to cut costs by eliminating *1390 three positions within the Systems Team. As of February 1991, only three of the nine members of the Systems Team were under the age of forty. Following Karpen's directive, Evans terminated two Systems Team members, Campbell (age 55)[3] and Warren Olson (age 41). As part of the reduction in force ("RIF"), Evans transferred Richard Clermont (age 54) from his position as computer programmer on the Systems Team to an open computer programming position in another department. (Id. at 9-10.)
After Campbell was terminated, Evans selected Gressel to become the Acting Systems Team Manager. Gressel's primary responsibilities and duties did not significantly change. He continued to implement the DEC/ASK system at the Cassville, Missouri, plant, his primary responsibility as Project Leader of Manufacturing. He did, however, take on the additional responsibilities of reporting to Evans and coordinating work assignments for the Systems Team. Gressel did not receive a pay increase, nor did he move into Campbell's old office. (Id. at 12-13.) In March 1992, Fasco determined it no longer needed a Systems Team and dismantled the group entirely. (Id. at 13.)
II. LEGAL STANDARD
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, present no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). When reviewing the record on summary judgment, this court must draw all reasonable inferences in the light most favorable to the nonmovant. Anderson v. Stauffer Chemical Co., 965 F.2d 397, 400 (7th Cir.1992). To avert summary judgment, however, plaintiff must do more than raise "`some metaphysical doubt as to the material facts.'" Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (footnote omitted)). Instead, he must present specific facts showing a genuine issue for trial. Celotex Corp., 477 U.S. at 324, 106 S. Ct. at 2553. A dispute about a material fact is genuine only if the evidence presented is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Nevertheless, summary judgment must be approached with special caution in employment discrimination cases because intent is often a crucial issue, and intent is often not susceptible to resolution through summary judgment. See Beard, 840 F.2d at 410.
III. ANALYSIS
The ADEA prohibits an employer from discriminating against an employee on the basis of age.[4] To succeed on an age discrimination claim, a plaintiff must prove[5] that age was a determining factor in the employer's adverse employment decision. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 371 (7th Cir.1992). Under this standard, a plaintiff need not prove that age was the sole motivating factor, but that he would not have suffered the adverse employment decision but for the employer's intent to discriminate on the basis of age. Id.
There are two ways in which a plaintiff in an age discrimination suit may prove his claim. He "`may try to meet [his] burden *1391 head on by presenting direct or circumstantial evidence that age was the determining factor in [his] discharge.... Or, as is more common, [he] may utilize the indirect, burden-shifting method of proof for Title VII cases originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 [36 L. Ed. 2d 668] (1973), and later adapted to age discrimination claims under the ADEA.'" Weihaupt v. American Medical Ass'n, 874 F.2d 419, 424 (7th Cir.1989) (quoting Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988)). Plaintiff employs both methods in an attempt to prove that age was a determining factor in his termination from Fasco.
A. Direct Method
"In a direct evidence case, plaintiff initially must prove `through direct evidence that the employment decision at issue was based upon an impermissible factor.'" McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686 (7th Cir.1991) (quoting Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 568 (7th Cir.1989)). Under the direct method of proof, plaintiff's evidence may be direct, circumstantial, or a combination of both. Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir.1994); Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 450 (7th Cir.1991) ("[T]he first type of evidence in a discrimination suit is direct evidence that age was a determining factor, such as discriminatory statements uttered by the employer's decision-maker. The second type of evidence is circumstantial evidence that age was a determining factor, such as a statistical imbalance in the employer's work-force."). If plaintiff succeeds at proving that age was a motivating factor in his termination, "`the defendant must respond by proving by a preponderance of the evidence that it would have made the same employment decision even if it had not taken the impermissible factor into account.'" McCarthy, 924 F.2d at 686 (quoting Randle, 876 F.2d at 569). Plaintiff proffers both direct and circumstantial evidence in an attempt to establish that age was a motivating factor in defendant's decision to terminate him.[6]
1. Plaintiff was the oldest member of the Systems Team and was replaced by a younger employee
Plaintiff offers no facts in support of his claim that he was replaced by another employee. It is undisputed that, after Campbell's termination, Dwight Gressel assumed the title of "Acting Systems Team Manager." However, a title is not determinative. Plaintiff must show that Gressel's new position is substantially the same as the position Campbell occupied at Fasco. See Monroe v. United Air Lines, Inc., 736 F.2d 394, 403 (7th Cir.), cert. denied, 470 U.S. 1004, 105 S. Ct. 1356, 84 L. Ed. 2d 378 (1984). Defendant stated in its 12(m) Statement that Gressel's primary responsibilities and duties did not significantly change, that Gressel continued to implement the DEC/ASK system at the Cassville plant (his primary responsibility before Campbell's termination), and merely took on the additional responsibilities of reporting to Evans and coordinating work assignments for the Systems Team. (Defendant's 12(m) Statement at 12-13.) Plaintiff did not deny this statement of undisputed fact, asserting instead that "[w]hile Defendant claims that Gressel's duties did not change `significantly', Defendant implicitly admits that Gressel's duties did change." (Plaintiff's Response to Defendant's Statement of Facts to Which it Believes There is No Dispute ("Plaintiff's 12(n) Statement") at 5.) Thus, the court accepts defendant's contention that Gressel did not replace plaintiff.[7]
*1392 Nevertheless, even if the court assumes that Gressel did replace Campbell, this is not direct or circumstantial evidence of discrimination. See Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 658-59 (7th Cir.1991) (neither plaintiff's age nor the fact that he was replaced by a much younger man is evidence of age discrimination). An employer does not violate the ADEA merely by discharging an employee whose age falls within the protected category and replacing him with a younger worker. La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1413 (7th Cir.1984). Indeed, "[b]ecause younger people often succeed to the jobs of older people for perfectly legitimate reasons, the mere fact that an older employee is replaced by a younger one does not permit an inference that the replacement was motivated by `age discrimination.'" Monaco v. Fuddruckers, Inc., 1 F.3d 658, 661 (7th Cir.1993) (quoting La Montagne, 750 F.2d at 1413). Plaintiff's evidence that he was the oldest member of the systems team and was replaced by a younger man, thus, merely places him within the protected class and establishes injury. See Daugherity v. Traylor Bros., Inc., 970 F.2d 348, 354 (7th Cir.1992) (evidence that terminated employee was oldest laborer in his work group merely establishes prima facie case under McDonnell Douglas framework). Plaintiff's evidence therefore will be considered under the McDonnell Douglas method of proof, discussed below.
2. Corroborating statements by Tom Beyer and Marv Haynes as to Fasco's policy of discriminating against older workers
Plaintiff alleges that Tom Beyer, Head of Purchasing, and Marv Haynes, Head of Engineering-Production, made statements indicating that Fasco engaged in discriminatory practices. (See Plaintiff's Response to Defendant's Motion for Summary Judgment ("Plaintiff's Memorandum") at 3-4.) According to plaintiff, Beyer and Haynes stated that Fasco employees over the age of 50 or 55 (plaintiff didn't remember which) only received raises every three years, while employees under that age received annual raises. Defendant objects to the admission of these statements, arguing that they are inadmissible hearsay which cannot be considered here. (Reply of Fasco Industries, Inc. in Further Support of Its Motion for Summary Judgment at 13.) Plaintiff, however, claims these statements are not hearsay because of the management-level positions Beyer and Haynes held. (Plaintiff's Memorandum at 4.) The court assumes that plaintiff is attempting to have these statements admitted under Federal Rule of Evidence 801(d)(2)(D), as statements by agents against their employer.
Rule 801(d)(2)(D) provides that "[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of that relationship." Such statements are presumably reliable in the absence of cross-examination because an agent "who speaks on any matter within the scope of his agency or employment during the existence of that relationship, is unlikely to make statements damaging to his principal or employer unless those statements are true." Nekolny v. Painter, 653 F.2d 1164, 1172 (7th Cir. 1981), cert. denied, 455 U.S. 1021, 102 S. Ct. 1719, 72 L. Ed. 2d 139 (1982).
To be admissible under Rule 801(d)(2)(D), however, the statements must concern matters within the scope of the declarant's employment, not just be made within the scope of his employment. See id. (statements of employee admissible against employer in civil rights action where employee worked closely with declarant and was involved in decision-making process on which he spoke); see also Cebula v. General Elec. Co., 614 F. Supp. 260, 266 (N.D.Ill.1985) (statements inadmissible under Rule 801(d)(2)(D) where declarants were lower-level employees and no evidence suggested that they were involved in the decision to fire *1393 plaintiff). In the present case, plaintiff has offered no evidence that Beyer and Haynes were involved in deciding when and to whom raises were to be given. Consequently, they were not speaking about matters within the scope of their employment for purposes of Rule 801(d)(2)(D).[8]
3. Systematic elimination of employees over the age of forty and replacement by younger workers
Plaintiff alleges that a review of Fasco's pension files[9] shows that the majority of employees who were terminated by defendant between 1986 and 1989 were over the age of forty. (Plaintiff's Memorandum at 4.) According to plaintiff, 98 out of the 160 salaried employees a ratio of 1.6 to 1 who were terminated during these years were over the age of forty. (Campbell Aff. at 7-8.)[10]
Plaintiff's statistics are flawed as a matter of law in two major respects, however, and are thus not evidence of age discrimination. First, in coming to the conclusion that 98 out of 160 employees that Fasco terminated between 1986 and 1989 were over forty, plaintiff used the "termination" date listed on the pension files. (Campbell Dep. at 399-403.) However, the termination date is merely the date on which the employee ceased working for Fasco. (Campbell Aff. at 400.) The pension files do not distinguish between retirement, voluntary resignation, termination for cause, death, or termination due to a RIF. (Campbell Dep. at 399-403.) Moreover, plaintiff admitted that he had no knowledge as to why any of the older employees left Fasco. (Campbell Dep. at 403-04.) Therefore, plaintiff's statistical evidence only shows that 98 people over the age of forty and 62 people under the age of forty left the employment of Fasco between 1986 and 1989. Without evidence of why these employees left Fasco, these statistics are meaningless.
Plaintiff's statistics are flawed in a second respect. Without analyzing the age breakdown of Fasco's work force between 1986 and 1989, plaintiff is unable to tell the court whether a larger percentage of older people left defendant's employment than did younger people. If more than 61.25% of defendant's salaried employees were over the age of forty, defendant's statistics would prove that a greater percentage of younger people left Fasco's employment than did older people.[11] Thus, without including the number of *1394 salaried employees over and under the age of forty, plaintiff's statistics are not probative of age discrimination.
Similar statistics were rejected by the Seventh Circuit in Dale v. Chicago Tribune Co., 797 F.2d 458 (7th Cir.1986), cert. denied, 479 U.S. 1066, 107 S. Ct. 954, 93 L. Ed. 2d 1002 (1987). In Dale, the plaintiff offered data showing that seventy-seven management employees who left the Chicago Tribune between 1982 and 1984 were over the age of forty. Id. at 465. Included on the list were "all ADEA class Tribune management employees who left the employment of the Tribune for any reason, including death, transfer, promotion, disability, voluntary retirement, voluntary resignation, and involuntary termination." Id. Unlike plaintiff, Dale did have knowledge of the reason each employee left the Tribune. Id. The court nevertheless held that the statistical evidence was "riddled with defects" because Dale did not provide the court with "the total number of ADEA class managers that worked at the Tribune during the years in question." Id.; see also Smith v. General Scanning, Inc., 876 F.2d 1315, 1321 (7th Cir.1989) ("[T]he fact that only nine of the 106 new hires were over 40 tells us nothing, since [plaintiff] omitted vital information regarding the pool of applicants and whether qualified older employees were available or even applied for those jobs."); Cebula, 614 F.Supp. at 265 ("[F]ive-to-one ratio of `young' to `old' employees is statistically meaningless without other evidence concerning the relative percentages of people that applied for these positions, as well as the relative percentages in the work force as a whole.")
The only other evidence in support of plaintiff's allegation that defendant eliminated more employees over the age of forty is his "observation." Although Plaintiff named several people who ceased working for Fasco between 1986 and 1989, plaintiff had no knowledge of their ages, why they left Fasco, who replaced them, or the ages of the replacements. (Campbell Dep. at 76-91.) "A party to a lawsuit cannot ward off summary judgment with an affidavit or deposition based on rumor or conjecture." Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989). Because plaintiff's statements are offered without adequate foundation or supporting facts, they cannot create a genuine issue of material fact.
4. No member of the Systems Team under the age of 40 was terminated because of the RIF
Plaintiff argues that evidence of age discrimination is shown by the fact that no member of the Systems Team under the age of 40 was terminated due to Fasco's reduction in force ("RIF"). "At first glance, the plaintiff's statistical evidence appears to tell a dramatic story." See Soria v. Ozinga Bros., Inc., 704 F.2d 990, 995 (7th Cir.1983) (rejecting similar "dramatic" statistical evidence based on small sample size). Yet, there are several problems with plaintiff's statistical evidence. First, it "lacks sufficient breadth to be trustworthy." See Parker v. Federal Nat'l Mortgage Ass'n, 741 F.2d 975, 980 (7th Cir.1984) (citing Soria, 704 F.2d at 994-97). Indeed, "[a] small change in the underlying raw data would result in dramatic statistical fluctuations." Id. (citing Contreras v. City of Los Angeles, 656 F.2d 1267 (9th Cir.1981), cert. denied, 455 U.S. 1021, 102 S. Ct. 1719, 72 L. Ed. 2d 140 (1982)). In Parker, the plaintiff argued that an inference of discrimination could be made from statistical evidence showing that three of four employees terminated from a group of 12 were over the age of 40. The court held that the small sample size employed by the plaintiff prevented the statistical evidence from giving rise to a reasonable inference of discriminatory motive. Id. at 980-81; see also Lindsey v. Baxter Healthcare Corp., 757 F. Supp. 888, 897-88 (N.D.Ill.1991) (evidence that no one over the age of 40 was hired for nine open positions too scant to create inference of age discrimination), aff'd in part & rev'd in part, 962 F.2d 586 (7th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 442, 121 L. Ed. 2d 361 (1992); Khan v. Grotnes Metalforming Sys., Inc., 679 F. Supp. 751, 762 (N.D.Ill.1988) (fact that none of five Swiss employees were terminated due to RIF too small a sample to be probative of discrimination on the basis of *1395 national origin); Zick v. Verson Allsteel Press Co., 644 F. Supp. 906, 912-23 (N.D.Ill. 1986) ("Merely saying six of eight employees terminated were over 40 makes too much of a very small statistical sample...." (footnote omitted)), aff'd, 819 F.2d 1143 (7th Cir.1987).
The same type of statistical evidence is presented by plaintiff. There were nine members of the Systems Team. (Defendant's 12(m) Statement at 9.) Six members were in the protected age group (over 40), while three members were under the age of forty. Id. Therefore, 66.7% of the Systems Team employees were in the protected class, while 33.3% were outside the protected class. Three positions on the Team were eliminated. (Id.) If defendant had chosen at random which three employees were to be terminated, two would have been from the protected class and one would have been outside the protected class. Whatever evidentiary significance that can be attached to an extra member of the protected group being terminated is too insignificant to create a reasonable inference of age discrimination.
Moreover, the facts surrounding the positions that were eliminated undermine any inference of age discrimination that could attach to these statistics. The second oldest member of the Systems Team, while his position on the team was eliminated, was transferred to an open position in another department. (Defendant's 12(m) Statement at 9; Plaintiff's Ex. B.) Moreover, Warren Olson, the other team member (besides Campbell) who was terminated was the second youngest member of the Systems Team. (Plaintiff's Ex. B.) It would be unreasonable, based on these facts, to conclude that age was a determining factor in Evans's decision of whom to terminate.
A second problem with plaintiff's statistical evidence is that he has not eliminated the most common nondiscriminatory explanations for this disparity. To create an inference that defendant discriminated against individual members of a class, plaintiff must show a significant disparity between defendant's treatment of employees over 40 and under 40 and "`eliminate the most common nondiscriminatory explanations for the disparity,'" such as "the need to eliminate a program or position, the lower proficiency of the discharged employees, and/or random chance." Nabat v. Aetna Casualty & Surety Co., No. 92 C 945, 1993 WL 390373, at *7 (N.D.Ill. Sept. 30, 1993) (footnote omitted) (quoting Barnes v. GenCorp, Inc., 896 F.2d 1457, 1466 (6th Cir.1990)). In the present case, plaintiff has offered no evidence, such as performance reviews of the members terminated compared to the members not terminated, that would indicate that the terminations were anything other than a good faith business decision. Without such vital data, plaintiff's argument that these statistics create an inference of age discrimination is too speculative. See Parker, 741 F.2d at 980 ("The district court is not required to evaluate every conceivable inference which can be drawn from evidentiary matter, but only reasonable ones.").
5. Discriminatory Statement of Milo Evans
Plaintiff also proffers a statement allegedly made by Milo Evans, plaintiff's supervisor, in 1989. Plaintiff alleges that in or about 1989, Milo Evans instructed him to hire a younger employee for a position on the Systems Team. Specifically, plaintiff was reviewing the applications of various applicants for the position of Manufacturing Systems Analyst. Campbell selected Wayne Olson[12] over an older qualified employee based on Milo Evans's direction. (Campbell Aff. at 6-7.) It is crucial to keep in mind, however, that statements or remarks indicating age bias do not inevitably prove that age played a part in a particular employment decision. McCarthy, 924 F.2d at 686. The plaintiff must produce some evidence indicating that the employer actually relied on his age in making the decision. Id.; see also Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1266 (7th Cir.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1372, 128 L. Ed. 2d 48 (1994). Consequently, "[u]nless the remarks upon which plaintiff relies were related to the employment decision in question, they cannot be *1396 evidence of a discriminatory discharge." McCarthy, 924 F.2d at 686-87.
In the present case, the statement made by Evans was wholly unrelated to the decision to terminate plaintiff and occurred two years before plaintiff's termination. "Liability ... does not turn on the bigotry of company managers unless that bigotry resulted in injury to the plaintiff. A showing of other instances of discrimination in the company may have evidentiary value, but it is not a substitute for a showing of injury to the plaintiff." Chambers v. American Trans Air, Inc., 17 F.3d 998, 1004 (7th Cir.1994) (evidence of pervasive sex discrimination in company insufficient to avert summary judgment in disparate treatment claim); see also Bruno v. City of Crown Point, 950 F.2d 355, 362 (7th Cir.) (sex-biased questions in interview insufficient to show gender discrimination; plaintiff "must show that the employer actually relied on her gender in making its decision."), cert. denied, ___ U.S. ___, 112 S. Ct. 2998, 120 L. Ed. 2d 874 (1992).
To say that Evans's statement cannot prove intentional age discrimination is not to say that the statement is irrelevant to plaintiff's claim of discriminatory discharge. On a motion for summary judgment, the evidence must be viewed in the light most favorable to the plaintiff. The burden-shifting formulation was created precisely because direct evidence of discrimination is often nonexistent. Thus, "[e]mployees must necessarily take full advantage of such statements if and when they are made." Greanias v. Sears, Roebuck & Co., 774 F. Supp. 462, 473 (N.D.Ill.1991) (assuming that age-biased statement made two years prior to employment decision showed indication of age as motivating factor in employer's decision to terminate plaintiff). Therefore, the court assumes that plaintiff has presented sufficient evidence to shift the burden of persuasion to the defendant.
Operating under the assumption that plaintiff has presented sufficient evidence to show that age was a motivating factor in his discharge, defendant must prove by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's age into account. "`As in any tort case, statutory or otherwise, a plaintiff cannot win a discrimination case if the harm to him would have been the same whether or not the defendant had discriminated.'" Gilty v. Village of Oak Park, 919 F.2d 1247, 1253 (7th Cir.1990) (quoting Washington v. Electrical Joint Apprenticeship & Training Comm., 845 F.2d 710, 712 (7th Cir.), cert. denied, 488 U.S. 944, 109 S. Ct. 371, 102 L. Ed. 2d 360 (1988)). Although "`mixed motives' situations are ordinarily not grist for the summary judgment mill," Adler v. Madigan, 939 F.2d 476, 479 (7th Cir. 1991),[13] the court concludes that defendant has met its burden of establishing that no genuine issue of material fact exists on this element. It is undisputed that Fasco suffered serious economic losses in 1990. The losses continued in January 1991, as profits for that month were $393,000, down from $1,052,000 in January of 1990. Based on this continuing decline of profits, Evans determined that cost reduction programs needed to be implemented. In February 1991, the president of Fasco instituted a salary freeze and directed Evans to cut costs by eliminating three positions within the Systems Team. Following that directive, Evans terminated two Systems Team members, plaintiff and Warren Olson, and transferred a third, Richard Clermont, to an open computer programming position in another department. (Defendant's 12(m) Statement at 8-9.)
Evans testified at his deposition that he terminated plaintiff because he determined that Campbell's position as Systems Team Manager was no longer needed. (Evans Dep. at 32.) He believed that, in the face of a RIF, Fasco's Motors Division needed hands-on systems people whom Evans referred to as "doer[s]." (Id.) Although plaintiff argues that he had experience as a "doer," he has not indicated that he ever performed programming functions at Fasco. Instead, he states that he "had over ten (10) years experience installing, programming *1397 and implementing systems for manufacturing companies prior to working for Fasco." (Campbell Aff. at 4.)
In addition, Evans testified that plaintiff's prior performance problems influenced his decision to terminate plaintiff. (Evans Dep. at 96, 137-38.) For example, Evans testified that "[Campbell] was unable, because of his highly technical orientation, to understand the needs of one group as it relates to another group and put it all together.... He was unable to take pieces of information from various groups and pull all that information together and determine what was the best solution." (Id. at 37.) This assessment of plaintiff's performance is documented in a memorandum to plaintiff dated May 2, 1990. In this memo, Evans indicated that plaintiff had difficulty in solving problems that arose during implementation of the computer system.
Plaintiff also received a performance evaluation, dated February 1990, which states that plaintiff "[r]arely takes the lead or advances new and unique ideas"; that his "[d]ecisions [are] generally shallow and haphazard leading to marginal performance"; that he "[f]ails to interact with [other managers] and acts in a manner which excludes cooperation"; and that he "has difficulty in dealing with fellow employees/customers and displays only marginal understanding of the reasons people behave as they do." The overall rating noted on this evaluation was "unacceptable." (Defendant's Ex. 4.)[14]
Based on Evans's assessment of the needs of the Systems Team in the face of the RIF and plaintiff's prior performance deficiencies, Evans decided to terminate plaintiff, rather than transfer him to another position. While a plaintiff is not required to link discriminatory statements directly to his termination, he must offer enough to support a reasonable inference that the impermissible intent was in operation in his case. See, e.g., Sprague v. Navistar Int'l Transp. Corp., 838 F. Supp. 1268, 1274-75 (N.D.Ill.1993). This plaintiff has not done. In light of the overwhelming evidence supporting defendant's proffered reasons for plaintiff's termination, defendant has met its burden of proving that a reasonable jury could find that plaintiff was not terminated because of his age. Thus, plaintiff has failed to present a genuine issue of material fact for trial under the direct method. Plaintiff, however, still can avoid summary judgment by establishing that a reasonable trier of fact may find age discrimination under the indirect method. See McCoy, 957 F.2d at 371 ("Where a plaintiff can offer no direct, `smoking gun' evidence of age discrimination, the burden-shifting method affords an alternate route to relief.").
B. Indirect Method
In a RIF case, a plaintiff can establish a prima facie case by showing: (1) that he was within the protected age group (over 40); (2) that he was performing according to his employer's legitimate expectations; (3) that he was terminated; and (4) that others not in the protected class were treated more favorably. Smith, 876 F.2d at 1318. "If a plaintiff makes this showing, a rebuttable presumption of discrimination arises and the burden of production shifts to the defendant employer to articulate legitimate and nondiscriminatory reasons for the discharge." Id. "`This burden is only one of production, as the "ultimate burden of persuading the trier of fact that the [employer] intentionally discriminated against the [employee] remains at all times with the [employee]."'" Daugherity v. Traylor Bros., Inc., 970 F.2d 348, 354 (7th Cir.1992) (citations omitted). If the defendant satisfies its burden of production, the presumption of discrimination dissolves and the burden shifts back to the plaintiff "`"to prove by a preponderance of the evidence that the legitimate reasons offered by the [employer] were not its true reasons, but were a pretext for discrimination."'" Id. (citations omitted).
1. Prima Facie Case
Defendant concedes that plaintiff has established three of the four elements of this test. Plaintiff was within the protected age *1398 group (55) and was terminated. Three members of the Systems Team who were not in the protected age group were treated more favorably in that they were not terminated due to the RIF. Defendant, however, contends that plaintiff has failed to establish the second element of the test that he was performing according to his employer's legitimate expectations.
However, the plaintiff's initial burden of proving a prima facie case is "`not onerous.'" Veatch v. Northwestern Mem. Hosp., 730 F. Supp. 809, 818 (N.D.Ill.1990) (citations omitted). Consequently, a plaintiff can establish the second element of the prima facie case through his own testimony that his performance was satisfactory. E.g., Weihaupt, 874 F.2d at 428.
Plaintiff has submitted his own affidavit that he performed his job satisfactorily. In his affidavit, plaintiff claims that he had a thorough understanding of Fasco's business methods and needs and that he was able to analyze systems problems and develop solutions to solve problems that arose during implementation of computer systems. (See generally Campbell Aff.) Plaintiff's submissions therefore establish a prima facie case of age discrimination.
2. Legitimate, Nondiscriminatory Reason
Defendant offers several reasons in support of its decision to terminate plaintiff. First, it is undisputed that Fasco incurred financial difficulties in 1990 and 1991, leading to the elimination of three positions on the Systems Team. (Defendant's 12(m) Statement at 8-9.) Second, Evans testified that the Systems Team did not need a full-time manager. (Evans Dep. at 32.) Third, in deciding to terminate plaintiff, Evans considered plaintiff's prior performance problems. (Evans Dep. at 96, 137-38.)[15] Defendant's evidence of the RIF, as well as the reasons behind its decision to terminate plaintiff, constitutes a legitimate, nondiscriminatory reason for plaintiff's termination. See, e.g., Smith, 876 F.2d at 1322 (RIF and negative performance evaluation of plaintiff constitutes legitimate, nondiscriminatory reason for plaintiff's discharge). Thus, the burden shifts back to plaintiff to persuade the court that these reasons advanced by defendant are a pretext for discrimination.
3. Evidence of Pretext
A plaintiff may demonstrate pretext in any one of three ways. He can attempt to establish that the proffered reasons (1) had no basis in fact, (2) did not actually motivate the discharge, or (3) were insufficient to motivate the discharge. Grohs v. Gold Bond Building Prods., 859 F.2d 1283, 1286 (7th Cir.1988), cert. denied, 490 U.S. 1036, 109 S. Ct. 1934, 104 L. Ed. 2d 405 (1989). Because the presumption of discrimination has been dropped at this point of the analysis, the court's inquiry is limited to whether defendant gave an honest explanation for its behavior. Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir.1988). Although plaintiff has offered evidence which he argues shows defendant's proffered reasons for plaintiff's termination was a pretext for discrimination, the court concludes that plaintiff has failed to present sufficient evidence to lead a reasonable jury to this conclusion.[16]
a) Plaintiff's claim that he performed satisfactorily
Plaintiff offers two assertions in support of his claim that he was performing satisfactorily. First, he proffers his sworn statement that he was performing adequately and, thus, should not have been fired. Second, he asserts *1399 (and it is undisputed) that he received bonuses in 1989 and 1990.
Plaintiff's own assertions that he was performing satisfactorily are entitled to little, if any, weight. "An employee's burden to show that his employer's asserted justification for termination is actually only a pretext for ... discrimination is, in contrast to what we will accept at the prima facie stage, infinitely more rigorous...." Bush v. Commonwealth Edison Co., 778 F. Supp. 1436, 1443 (N.D.Ill.1991), aff'd, 990 F.2d 928 (7th Cir.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1648, 128 L. Ed. 2d 367 (1994). Plaintiff does not deny that he received a written memorandum from Evans which was critical of plaintiff's performance. (Plaintiff's 12(n) Statement at 3) ("Plaintiff states that the May 2, 1990, memo speaks for itself."). Instead, plaintiff generally disputes Evans's assessment of his performance. (Id.) Yet, the Seventh Circuit has emphasized that "a plaintiff's self-serving testimony regarding his own ability is `insufficient to contradict an employer's negative assessment of that ability.'" Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216, 1223 (7th Cir.1991) (quoting Williams v. Williams Electronics, Inc., 856 F.2d 920 at 924 (7th Cir.1988)); see also Dale, 797 F.2d at 464 (summary judgment for employer affirmed where plaintiff did no "more than challenge the judgment of his superiors through his own self-interested assertions").
Moreover, plaintiff offers no evidence regarding the performances of the retained workers. He merely states that he was better qualified and could accomplish tasks that other members of the Systems Team could not. (Campbell Aff. at 2-3.) The employee's perception of himself is irrelevant. "`It is the perception of the decision maker which is relevant.'" Dale, 797 F.2d at 464-65 (citation omitted).
Plaintiff does, however, present objective evidence that he was performing satisfactorily before the RIF. It is undisputed that plaintiff received bonuses in 1989 and 1990. (Defendant's 12(m) Statement at 6-7.) Neither party, however, has submitted evidence as to how these bonuses compared to the bonuses of other Fasco managers or if those employees received bonuses at all. Plaintiff contends that the bonuses must have been merit-based because he was never authorized to award bonuses to his inferiors who did not perform adequately. (Plaintiff's 12(n) Statement at 2.) Defendant, on the other hand, claims the bonuses were gifts. (Defendant's 12(m) Statement at 6-7.) The court need not not to mention cannot at the summary judgment stage resolve this factual issue because it is immaterial. Thus, the court assumes that plaintiff was performing satisfactorily before the RIF.
Nevertheless, evidence that plaintiff was performing satisfactorily, in the sense that he would not have been terminated but for the RIF, does not challenge defendant's reasons for terminating plaintiff. "`[T]o show pretext, it does not help for [the plaintiff] to repeat the proof that his job performance was generally satisfactory. That question has already been resolved in his favor. The Company advanced specific reasons for his discharge, and his rebuttal evidence should be focused on them.'" Aungst, 937 F.2d at 1223 (quoting La Montagne, 750 F.2d at 1414). In Aungst, the defendant employer stated that it had fired the plaintiff employee due to a RIF because it needed more versatility on the engineering staff. (Id. at 1218.) The plaintiff attempted to show pretext by offering evidence of a "merit pay increase shortly before his termination; Performance Management System charts that described his good work performance; and a letter of recommendation written by his former boss to help him in an application for a teaching position." (Id. at 1223.) The court held that the plaintiff had not rebutted the defendant's articulated reason for terminating plaintiff because plaintiff's evidence did not speak directly to the proffered reason for the termination lack of versatility. Id.
Plaintiff's evidence is deficient in the same manner. Evans testified that the Systems Team no longer needed a manager that did not also perform hands-on functions. (Evans Dep. at 32.) Plaintiff does not dispute that he did not work as a programmer during his tenure at Fasco. (See generally Campbell Aff. at 1-3.) The fact that Fasco had a copy of plaintiff's resume, indicating *1400 plaintiff's prior experience as a programmer (Campbell Aff. at 4-5) does not undermine Evans's decision that employees on the Systems Team who were performing programming functions at the time of the RIF were more qualified to continue programming after the RIF. The court will not "`reevaluate business decisions made in good faith.'" Aungst, 937 F.2d at 1224 (quoting Bechold v. IGW Sys., Inc., 817 F.2d 1282, 1285 (7th Cir.1987)). "`It is enough if the decision was "genuinely and honestly made in an attempt to select the employees to be retained on the basis of performance related considerations."'" Id. (citation omitted).
b) Plaintiff's claim that he was needed on the Systems Team
Plaintiff argues that Evans was wrong in concluding that plaintiff was not needed on the Systems Team. (Plaintiff's Memorandum at 9.) In support of his argument, plaintiff states that he was still working on several projects that were assigned to him by Evans, including (1) "support[ing] and continu[ing] development of an Engineering Documentation System and explor[ing] and implement[ing] new applications of this technology at the various plants," and (2) "support[ing] the development of a Purchasing EDI Prototype System for selected vendors for Division Purchasing Systems." (Campbell Aff. at 8.) Nevertheless, if Fasco was mistaken about plaintiff's worth on the Systems Team, this is of no import to plaintiff's claim as long as defendant's explanation is credible.
Defendant asserted that plaintiff was terminated because Evans felt the Systems Team did not need a manager that did not also perform programming functions. (Defendant's 12(m) Statement at 10.) Plaintiff has not alleged that he did perform programming functions at Fasco; he merely disputes Evans's assessment of the needs of the Systems Team. (See Plaintiff's 12(n) Statement at 3.) However, even if Fasco made a bad decision in firing plaintiff, even if the Systems Team could not function without plaintiff, the court cannot interfere. "It is not the court's duty to determine the validity of the defendant's business decision as long as the decision was made in good faith." Dorsch v. L.B. Foster Co., 782 F.2d 1421, 1426 (7th Cir.1986). "`If you honestly explain the reasons behind your decision, but the decision was ill-informed or ill-considered, your explanation is not a pretext.'" Bruno, 950 F.2d at 364 (quoting Pollard v. REA Magnet Wire Co., 824 F.2d 557, 559 (7th Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 488, 98 L. Ed. 2d 486 (1987)).
c) Plaintiff's claim that Evans did not have sufficient information to evaluate him
Plaintiff argues that "Evans did not have sufficient opportunity to form an opinion of Plaintiff's performance." (Plaintiff's Memorandum at 7.) In support of this argument, plaintiff states that Evans's office was in St. Louis, Missouri, while Campbell's office was in Springfield, Missouri. (Id.; Evans Dep. at 17.) As a result, Evans only met with Campbell once every three to four weeks. (Plaintiff's Memorandum at 7; Evans Dep. at 18.) Once again, plaintiff asks the court to become involved in the managerial affairs of Fasco, a task the court cannot and should not undertake. Plaintiff has offered no evidence regarding how plaintiff's level of supervision compared to other, younger employees. "The party resisting the summary judgment motion may not rest on mere allegations." Klein v. Trustees of Indiana Univ., 766 F.2d 275, 283 (7th Cir.1985) (citing Posey v. Skyline Corp., 702 F.2d 102 (7th Cir.), cert. denied, 464 U.S. 960, 104 S. Ct. 392, 78 L. Ed. 2d 336 (1983)). If plaintiff offered evidence that Evans's lack of continuous supervision was related to his age (for example, if younger managerial employees were supervised more closely), the fact that Evans only met with plaintiff once every three to four weeks might be evidence of age discrimination. However, plaintiff has offered no such evidence and, consequently, the frequency of Evans's contact with plaintiff is not evidence of pretext.
d) Plaintiff's claim that the 1990 performance evaluation was a sham
Plaintiff claims that his performance review in 1990 was a sham a ploy to get rid of him because of his age. (Plaintiff's Memorandum *1401 at 8.) In support of this argument, plaintiff alleges that he "had never received an evaluation in this detail and format in the past, and ... never saw such a format again," either as an employee or as a supervisor. (Campbell Aff. at 5.) This general statement, however, is insufficient to show pretext. Plaintiff has offered no evidence that the company did not use such an evaluation form or did not use the form on a regular basis. And, in fact, defendant has submitted seventeen performance reviews of other Fasco employees in a format the same or substantially similar to plaintiff's performance review. (Schulz Aff. at 1 & Ex. 1.) Thirteen of these seventeen reviews predate plaintiff's review. (See id. Ex. 1.) Because plaintiff is unable to support the argument that his performance review was a mask for discrimination, that argument is entitled to no weight. See Anderson, 965 F.2d at 402 ("[Plaintiff's] theory that [his supervisor's] memos and ... complaint letters were manufactured in an attempt to justify his firing is, at best, speculation, and speculation is not enough to avoid summary judgment.").
e) Plaintiff's claim that the evaluation was subjective and, thus, could mask discrimination
Plaintiff argues that his 1990 evaluation was based on a subjective assessment of plaintiff's abilities and, therefore, is a pretext for discrimination. (Plaintiff's Memorandum at 5.) Nevertheless, a subjective assessment is not per se indicative of an illegal motive. Dorsch, 782 F.2d at 1427 ("A subjective qualification assessment does not convert an otherwise legitimate reason into an illegitimate one."). Indeed, "[d]ecisions such as these will always involve a number of subjective factors, and disappointed candidates cannot expect a federal judge to intervene simply in the hope that he or she will evaluate the factors differently." Parker, 741 F.2d at 981.
Plaintiff has presented no evidence showing that other, younger employees were given objective evaluations and, therefore, the allegation that plaintiff's evaluation was subjective does not show pretext. Cf. Christie v. Foremost Ins. Co., 785 F.2d 584, 586 (7th Cir.1986) (proof of pretext where plaintiff offered evidence showing his evaluations were based on objective criteria while younger employee's evaluations were wholly subjective). Moreover, plaintiff admits receiving a memo from Evans discussing plaintiff's poor job performance. In this memo, Evans identified two specific instances of problems plaintiff had in performing his duties. Plaintiff does not mention these specific instances of his performance problems in his argument that Evans's assessment of his ability was merely subjective. Consequently, plaintiff has presented no valid factual evidence regarding his performance evaluation from which one could infer pretext.
f) Plaintiff's claim that three of the five people who allegedly complained to Evans about plaintiff's performance denied having done so
Finally, plaintiff attempts to show pretext by arguing that three of the five people whom Evans stated complained to him about plaintiff's performance testified in their depositions that they had never spoken to Evans about plaintiff's performance.[17] Evans testified that employees Dwight Gressel, Rick Green and Kenneth Hammarstrom complained to him about plaintiff's performance. (Evans Dep. at 49, 53, 55.) However, these three employees testified that they did not discuss plaintiff's performance with Evans. (Gressel Dep. at 89-92; Hammarstrom Dep. at 10-11; Green Dep. at 6-7.)
Nevertheless, even if some of the employees Evans believed complained to him did not actually do so, this evidence does not raise doubts as to the genuineness of defendant's termination decision. "It is not enough for the plaintiff to simply assert that the acts for which [he] was terminated did not occur." Billups v. Methodist Hosp., 922 F.2d 1300, 1304 (7th Cir.1991). Plaintiff's evidence may *1402 indicate that plaintiff's skills were better than Evans thought. Nevertheless, "an ill-informed decision or an ill-considered decision is not automatically pretextual if the employer gave an honest explanation for termination." Id. at 1304.
Plaintiff's evidence might be substantial evidence of pretext if this were the only negative assessment of plaintiff's performance. See Jang v. Biltmore Tire Co., 797 F.2d 486, 489-90 (7th Cir.1986) (plaintiff must offer substantial evidence that defendant's articulated reasons are unworthy of credence). However, defendant did not claim to terminate plaintiff solely on the basis of the alleged complaints by these individuals. On the contrary, defendant asserted that it fired plaintiff because of the RIF, because Evans determined that the Systems Team did not need a full-time manager, and because of plaintiff's prior performance deficiencies. Evans's memo to plaintiff noted specific problems that plaintiff had in ascertaining solutions to problems the Systems Team encountered. (See Defendant's 12(m) Statement at 7-8.) In this situation, the court "does not sit as a super-personnel department that reexamines an entity's business decisions." Dale, 797 F.2d at 464.
In sum, plaintiff has not raised a genuine issue of material fact as to whether defendant's explanation for plaintiff's termination was a pretext for discrimination. Defendant is accordingly entitled to judgment as a matter of law.
CONCLUSION
Defendant's Motion for Summary Judgment is granted. Judgment entered on behalf of defendant and against plaintiff.
NOTES
[1] This section of the opinion discusses matters not in dispute. Where a factual dispute exists (the critical factor on a summary judgment motion), the issue will be dealt with in the discussion of legal principles.
[2] Evans wrote to Campbell:
Your performance for 1989, was not satisfactory, The main reasons for this unsatisfactory rating relate to your ability to work with other key managers within the company, coordination of projects and the lack of leadership during the selection of the DEC/ASK computer system[.]
A manager of the Systems Team needs to provide a very positive and business oriented, rather than technical oriented, management style. You should be dealing directly with the plant managers and their staff in the solution of the business reporting problems throughout our company. [T]his requires interface with the plant management people. This is an area where your performance has not been up to par as we discussed, you need to spend more time with the plant management and their staff level people and follow-up coordination of systems projects.
The other area we talked about was the requirement to put more work into the decision making process. It isn't always the answer to just buy additional hardware or software, in solving a particular systems problem. We talked about the meeting that we had the fourth day that I was on the job where you suggested upgrading the microdata computers at the motor plant locations. Rather than spending several hundred thousand dollars, we spent in the area of a hundred thousand dollars because the real problem was not hardware, it was Systems information processing. A similar situation occurred in Eldon whereby, the original answer to the problem was to buy more hardware and software, when in fact, it turned out to again be a problem of information processing, rather than limitations of equipment.
(Defendant's 12(m) Statement at 7-8 & Ex. 5.)
[3] All ages are as of February 1991.
[4] The ADEA states in pertinent part:
"(a) It shall be unlawful for an employer
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age...."
29 U.S.C. § 623(a)(1).
[5] This opinion will refer to what an ADEA plaintiff must prove because that is the terminology employed in the controlling case law. It should, however, be emphasized that in opposing a motion for summary judgment, a plaintiff need only advance evidence sufficient to create a genuine issue of material fact. Thus, the latter standard, rather than the preponderance of the evidence standard, is the interpretation that should be given to the court's analysis of plaintiff's proffered evidence.
[6] The court will first analyze each piece of evidence separately to determine its relevancy, and then will determine whether the relevant evidence in the aggregate is sufficient to withstand defendant's motion for summary judgment. Thus, the fact that plaintiff's evidence is analyzed separately should not be taken to mean that the court did not consider the evidence as a whole. See Oxman v. WLS-TV, 12 F.3d 652, 658 (7th Cir.1993) (district court's mission is to view the evidence in its totality).
[7] "Local Rule 12(m) ... requires a party opposing a motion for summary judgment to file, in addition to the evidentiary materials required by Rule 56(e), a response listing the factual assertions by the movant with which the opponent disagrees." Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1102 (7th Cir.1990). The list must be supported by specific references to the evidentiary materials relied on and must set forth any additional facts that require denial of summary judgment, also supported by specific references to the record. Any facts asserted by the movant and not contradicted in the manner specified by the rule are deemed admitted. Id. Because plaintiff failed to make the required citation and merely offered theories instead of facts, the court must accept the defendant's version as uncontroverted.
[8] Plaintiff's position on this point suffers another weakness as well. "A plaintiff may submit probative statistical evidence to show that the employer's proffered reason for the employment decision was a pretext for discrimination." Box v. A & P Tea Co., 772 F.2d 1372, 1379 (7th Cir.1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3311, 92 L. Ed. 2d 724 (1986). The statistics, however, must be relevant. Id. Plaintiff's evidence indicated that employees in the protected age group received pay increases less often than did employees not in the protected group. While such evidence would be relevant to a claim of wage discrimination, it has no relevance to plaintiff's claim of discriminatory firing. See id. at 1379-80 (statistics showing promotions given to men at significantly greater rate not probative of discrimination in discharge claim) (citing Coates v. Johnson & Johnson, 756 F.2d 524, 545 (7th Cir.1985)).
[9] Because plaintiff was responsible for creating, updating and analyzing the pension files (Campbell Aff. at 3), he has personal knowledge of the evidence he submits.
[10] Defendant objects to the admission of reference to these pension files, arguing that plaintiff did not turn these files over to defendant until November 17, 1993, two months after discovery had closed and two days after plaintiff had been served with defendant's motion for summary judgment. (Defendant's Memorandum in Support of its Motion for Summary Judgment at 7.) Plaintiff contends that he turned over the pension files before he was served with a copy of defendant's motion for summary judgment. (Plaintiff's Memorandum at 4 n. 1.) The court need not resolve this issue, however, because the statistics proffered by plaintiff are flawed and, thus, are not evidence of discrimination.
[11] Plaintiff alleges that between 1986 and 1989, 160 salaried employees left Fasco: 98 over the age of forty and 62 under the age of forty. (Plaintiff's Aff. at 7-8.) Thus, of the 160 employees that left, 61.25% were more than forty years old (98 divided by 160 equals 61.25%). Assume Fasco employs 1,000 salaried workers. If 62% were over the age of forty, defendant would employ 620 workers over the age of forty and 380 workers under the age of forty. If 98 of the 620 older workers left Fasco, Fasco would have lost 15.80% of its older employees. If 62 of its 380 younger employees left, it would have lost 16.31% of its younger employees. Thus, if over 61.25% of Fasco's employees during the relevant time period were over forty years of age, plaintiff's statistics would demonstrate that a greater percentage of younger employees left Fasco than did older employees.
[12] The court assumes that plaintiff is speaking of Warren Olson, a systems analyst on the Systems Team, because there was no one named Wayne Olson on that team. (See Plaintiff's Ex. B.)
[13] The Adler court itself affirmed summary judgment for the defendant-employer, concluding that there was no genuine issue of material fact that the defendant would have terminated the plaintiff even if it did not consider an improper motive.
[14] Plaintiff, of course, denies that his performance was poor. However, he does not deny that he received both the performance evaluation and the memorandum written by Evans. (Plaintiff's 12(n) Statement at 2-3.)
[15] The court will not recount the evidence defendant has submitted in support of its proffered reasons for terminating plaintiff, as this evidence has already been discussed at great length under the court's analysis of the direct method of proof.
[16] Plaintiff offers a multitude of arguments which he claims shows pretext, yet, as with the rest of his memorandum, he has not organized his arguments in a coherent manner. Nevertheless, the court can conclude plaintiff has offered no evidence that defendant's reasons for plaintiff's termination did not actually motivate his discharge or that they were insufficient to motivate his discharge. Therefore, the court assumes that plaintiff is attempting to show that defendant's reasons for terminating him had no basis in fact.
[17] Plaintiff also claims that the two other employees (Roger Cobb and Mo Castleberry) who allegedly spoke to Evans about plaintiff's performance told him that they never complained to Evans about plaintiff's performance. Plaintiff's only proof of these comments, however, is his own statement (Campbell Aff. at 6), and his statements as to what other workers told him would not be admissible at trial. As such, they cannot be considered on a motion for summary judgment. See FED.R.CIV.P. 56(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323675/ | 233 Ga. 456 (1975)
211 S.E.2d 747
PROVEAUX
v.
THE STATE.
29331.
Supreme Court of Georgia.
Submitted October 25, 1974.
Decided January 8, 1975.
*458 Albert G. Ingram, for appellant.
Richard E. Allen, District Attorney, Arthur K. Bolton, Attorney General, B. Dean Grindle, Jr., Assistant Attorney General, for appellee.
HALL, Justice.
Carl Proveaux was sentenced to life imprisonment for the murder of the ten-month-old son of his girl friend, and appeals arguing that the child's death was an accident.
The trial evidence showed that the child died from injuries received while in Proveaux' care. Proveaux admitted to an investigator that he had abused the child on previous occasions, but maintained to the investigator *457 and at trial that he had been changing its diaper and when he left the room for a moment it had fallen from the sofa onto the floor. He testified that it was gasping for breath, and he slapped it a few times to revive it, and then attempted to administer heart massage. The testimony of the director of the State Crime Laboratory, who conducted the autopsy, was that he found extensive external and visible injuries to the child, including teeth marks on both arms, and extensive internal injuries which were inconsistent with a fall from a sofa and with heart massage but were consistent with a blow or blows to the body. The evidence tended to show multiple impacts to the abdominal cavity, as well as hemorrhages of the liver surface and of the tissues below the pancreas. The cause of death was a rupture in the heart, and his opinion was that such a rupture was consistent with a very hard, localized blow, and totally inconsistent with a fall from a sofa or heart massage.
On this appeal Proveaux raises six enumerations of error, but argues only the general grounds. He asserts that the state failed to prove on his part any intention to harm the baby.
It was for the jury to determine the fact issue whether the child's heart was ruptured by a fall or by heart massage, or whether by Proveaux's intentional blows. They resolved this issue by concluding that Proveaux intended the blows. The question of intention is peculiarly within the province of the jury to decide. Cole v. State, 118 Ga. App. 228 (163 SE2d 250). The evidence detailed above was sufficient to sustain the verdict, which will therefore be affirmed. Marlow v. Burns, 209 Ga. 255 (71 SE2d 520). The evidence showed no considerable provocation, and the jury was authorized to conclude that the circumstances of the killing showed an abandoned and malignant heart. Therefore, malice could be implied (Code Ann. § 26-1101 (a)) and a verdict of guilty of murder was authorized.
Enumerations 3, 5 and 6, not being argued, are deemed abandoned. Supreme Court Rule 18(c); West v. State, 229 Ga. 427, 429 (192 SE2d 163).
Judgment affirmed. All the Justices concur. Hill, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323640/ | 554 S.E.2d 190 (2001)
251 Ga. App. 161
MORRISON
v.
The STATE.
No. A01A1177.
Court of Appeals of Georgia.
August 9, 2001.
*191 Shandor S. Badaruddin, Atlanta, for appellant.
Patrick H. Head, District Attorney, Thomas A. Cole, Dana J. Norman, Assistant District Attorneys, for appellee.
ELLINGTON, Judge.
A Cobb County jury convicted Clyde Morrison of armed robbery, OCGA § 16-8-41, and obstruction of an officer, OCGA § 16-10-24. Following the denial of his motion for new trial, Morrison appeals, contending that the trial court erred in admitting the statements of his nontestifying co-defendants, and that he was denied effective assistance of counsel. For the following reasons, we affirm.
1. Morrison contends the trial court violated his right under the United States and *192 Georgia Constitutions to confront the witnesses against him in that the statements of his nontestifying co-defendants inculpated him.
Viewed in the light most favorable to the verdict,[1] the evidence showed that at about 2:30 a.m. on August 5, 1998, four young men went to a convenience store. While David Jamaine Madric, Jr. and James Augustine Tallent remained in the car, Morrison and Donnell Reginald Wilder went into the store to rob it. Morrison and Wilder each had a shirt wrapped around his head to conceal his face and each carried a handgun. Wilder pushed one clerk against a cooler and demanded money. The other clerk opened the registers. Morrison and Wilder took cash from the register drawers and returned to the car. A police officer responding to the emergency dispatch saw a car leaving the area of the robbery and pursued it. The car stopped at an apartment complex, and the officer attempted to detain all four men. Before backup arrived, Morrison, Wilder and Madric ran away. The officer succeeded in detaining Tallent. Another officer arrived and interviewed Tallent who gave a statement and showed the officer where Morrison lived in the apartment complex. The officer went to Morrison's residence and found Morrison and Wilder inside. Morrison immediately admitted his involvement and gave a statement. Morrison, Madric and Tallent were tried together.
After a Jackson-Denno[2] hearing, the trial court ruled the statements of Morrison, Madric and Tallent would each be admissible. Counsel agreed to redacted versions so that each defendant's statement would not refer to any of his co-defendants. Morrison cites eight instances where the officer testifying as to the contents of Tallent's and Madric's statements referred to Morrison by name. Morrison contends this evidence violated his right to confrontation under the standards set forth in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). See Hanifa v. State, 269 Ga. 797, 800(2), 505 S.E.2d 731 (1998). The record shows, however, that Morrison made no Bruton objection at trial, and he is, therefore, foreclosed from raising this claim on appeal. Sharpe v. State, 272 Ga. 684, 689(9), 531 S.E.2d 84 (2000).
2. In a related enumeration, Morrison contends his trial counsel's assistance was ineffective in failing to object to the admission of his co-defendant's statements. To prove his ineffective assistance of counsel claim, Morrison had to show that his counsel's performance fell below an objective standard of reasonableness and thereby prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Johnson v. State, 266 Ga. 380, 381(2), 467 S.E.2d 542 (1996).
Because Morrison's own inculpatory statement was admitted, any references in his co-defendants' statements to his participation in the robbery were cumulative; trial counsel's failure to object to such cumulative testimony was neither deficient nor prejudicial. Peterson v. State, 212 Ga.App. 147, 151(4), 441 S.E.2d 481 (1994). Furthermore, because Morrison's defense was that he was coerced into participating by fear that Wilder would harm him and Tallent if he refused, repetitive Bruton objections would have served no purpose. Under these circumstances, counsel's decision not to object falls within the realm of trial strategy, which does not equate with ineffective assistance of counsel. Williams v. State, 239 Ga.App. 598, 599(2), 521 S.E.2d 650 (1999). Finally, Morrison has not shown a reasonable probability that the outcome of the proceedings would have been different, but for counsel's alleged deficiency. See Himmel v. State, 246 Ga. App. 845, 850(2)(d), 542 S.E.2d 557 (2000).
3. Morrison contends he was denied effective assistance of counsel in that his attorney repeatedly failed to object to the prosecutor's comments on his exercise of his constitutional right to silence. Morrison identifies twenty cross-examination questions, which allegedly implied such a comment, and three comments during the State's closing argument. A review of the State's *193 cross-examination reveals that, after Morrison testified that he participated in the robbery only out of fear of harm to himself and Tallent, the prosecutor attempted to weaken that defense by highlighting every conceivable opportunity for seeking help that Morrison had passed up. The State's comments during closing were consistent with that attack on the coercion defense. Because all of the questions and comments related to Morrison's failure to act or speak before he was arrested, none implicated his right to silence while in custody and at trial. Therefore, the prosecutor's comments did not violate his right to silence under the United States Constitution. Mallory v. State, 261 Ga. 625, 630(5), 409 S.E.2d 839 (1991) (discussing Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980); Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982)).
As Morrison contends, however, Georgia evidence law provides greater protection than the constitutional minimum and prohibits prosecutorial comment on "prearrest silence." In Jenkins v. Anderson, the United States Supreme Court noted that states are not required to allow impeachment by prearrest silence and "remain[ ] free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial." 447 U.S. at 240, 100 S. Ct. 2124.[3] In Mallory v. State, the Supreme Court of Georgia laid down such an evidentiary rule, defining any comment on an accused's prearrest silence or failure to come forward as more prejudicial than probative and disallowing such comments "even where the defendant has not received Miranda warnings and where he takes the stand in his own defense." 261 Ga. at 630(5), 409 S.E.2d 839.
In this case, Morrison took the stand at trial and provided evidence that he was coerced into participating in the armed robberyin effect, that he himself was the victim of the crime of assault. The prosecutor's questions and argument related primarily to Morrison's failure to report the crime against himself or to seek police protection from his assailant before police officers identified him as a participant or questioned him. Although this line of impeachment arguably "touch[ed] upon"[4] Morrison's prearrest silence in the broadest sense, we find no violation of Mallory v. State. Mallory v. State addressed the introduction of defendant's pretrial statement "which included the question why appellant had not come forward to explain his innocence when he knew that he was under investigation and his answer that he was waiting for police to come to him." (Emphasis supplied.) 261 Ga. at 629(5), 409 S.E.2d 839. We conclude the rule prohibiting comments regarding prearrest silence is properly limited to a defendant's silence in the face of questions by an agent of the State[5] or his failure to come forward when he knew that he was the target of a criminal investigation. Wallace v. State, 272 Ga. 501, 503(2), 530 S.E.2d 721 (2000) (prohibiting evidence that the defendant reacted physically but did not admit anything when police questioned him about his wife's death); Mallory v. State, 261 Ga. at 629-630(5), 409 S.E.2d 839; Gordon v. State, 250 Ga.App. 80, 550 S.E.2d 131 (2001) (prohibiting evidence that the defendant stood mute when police came to his house to investigate a shooting). We conclude that a prosecutor does not impermissibly comment on prearrest silence merely by showing that the accused's demeanor and conduct during and after the crime (but before an agent of the State questions him and before he knows he is being investigated) were inconsistent with a defense such as coercion or justification. See Aleman v. State, 227 Ga.App. 607, 608-609(1), 489 S.E.2d 867 (1997); Norris v. State, 227 Ga. App. 616, 619(4), 489 S.E.2d 875 (1997). See *194 also Hollis v. State, 201 Ga.App. 224, 226(4), 411 S.E.2d 48 (1991) (decided before Mallory v. State). In our view, defining "prearrest silence" to include the failure of an accused under the circumstances described here to report a crime or to seek police protection would unduly expand the scope and limits of the privilege against self-incrimination at the expense of the duty of the State to enforce the laws and the function of the courts to seek the truth.[6] Because the prosecutor's questions and argument in this case were not objectionable, the trial court correctly rejected Morrison's claim that he received ineffective assistance of counsel. Taylor v. State, 272 Ga. 559, 562(2)(d), 532 S.E.2d 395 (2000) (where reference to defendant's silence was not objectionable, trial counsel's failure to object was not deficient assistance of counsel).
4. We have considered Morrison's remaining enumerations of error and have found each to be abandoned, without merit or moot.
Judgment affirmed.
JOHNSON, P.J., and RUFFIN, J., concur.
NOTES
[1] Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
[2] Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).
[3] We note that many states declined to accept the invitation in Jenkins v. Anderson to adopt such an evidentiary rule and have allowed impeachment by evidence of prearrest silence. See Impeachment of Defendant in Criminal Case by Showing Defendant's Prearrest SilenceState Cases, 35 A.L.R. 4th 731.
[4] Wallace v. State, 272 Ga. 501, 503(2), 530 S.E.2d 721 (2000).
[5] See K. Jackson, The Right to Remain Silent: The Use of Pre-Arrest Silence in United States v. Oplinger, 150 F.3d 1061 (5th Cir.1998), 68 U.Cin.L.Rev. 505, 528 (2000).
[6] See Smith v. State, 656 P.2d 277 (Okl.Crim. App.1982):
Once a defendant decides to testify, the interests of the other party and regard for the function of the courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination. Thus, impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truthfinding function of the criminal trial.
(Citations and punctuation omitted.) Id. at 282-283. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322964/ | 202 Va. 933 (1961)
SADIE M. CORBETT
v.
SHIRLEY ANN BONNEY.
Record No. 5291.
Supreme Court of Virginia.
September 8, 1961.
Robert G. Winters (Pilcher, Underwood, Pilcher & Winters, on brief), for the plaintiff in error.
Calvin W. Breit (Melvin Friedman; Amato, Babalas, Breit & Cohen, on brief), for the defendant in error.
Present, All the Justices.
1. Mrs. Bonney and her husband, with whom she was riding, were injured when their vehicle was struck from the rear by defendant's. To their actions defendant filed a plea of release, on the trial of which the jury found the release invalid. From a subsequent verdict for $5,000 in Mrs. Bonney's favor defendant appealed, asserting that the trial court should have held as a matter of law that the release was valid and that fraud in its procurement had not been proved. This position was well taken. The instrument was clearly titled "General Release" and in terms stated it was in compensation of all injuries. Plaintiff gave no satisfactory explanation of her admitted failure to read it, proved no fraudulent statement of the insurance carrier's agent, and her argument could not be accepted that his helpfulness in taking her to a hospital and in other ways was for the purpose of ingratiating himself to deceive her.
2. Defendant's position was also well taken that plaintiff had failed to prove mutual mistake of fact as to her injuries. The evidence showed that she was taken to a hospital, that x-rays were negative, that she was given emergency treatment for back injury and told by the attending physician to consult her doctor at her home city if necessary. When she signed the release she knew she might require further treatment and an amount was designated for this in the release. She was also advised of the nature of her injury. The fact that treatment for it was unexpectedly long was not reason for avoiding the release on the ground of mutual mistake.
Error to a judgment of the Court of Law and Chancery of the city of Norfolk. Hon. J. Sydney Smith, Jr., judge presiding. The opinion states the case.
SNEAD
SNEAD, J., delivered the opinion of the court.
This appeal involves an action brought by Shirley Ann Bonney, plaintiff, against Sadie M. Corbett, defendant, for damages resulting from injuries she received while a passenger in an automobile operated by her husband, Maurice W. Bonney, when his car was struck in the rear by a vehicle driven by defendant in Charlotte, North Carolina.
Defendant filed a plea of release and also her grounds of defense to the motion for judgment. A similar plea was filed by her in a pending action instituted by Maurice W. Bonney arising out of the same accident, and since the Bonneys had executed a joint release, the trial court, without objection, ordered that the cases be heard together on the issue raised by the special pleas. A trial was had on June 13, 1960, and at the conclusion of all the evidence defendant moved to strike plaintiffs' evidence, which motion was overruled. The jury returned verdicts in favor of both plaintiffs, thus holding the release invalid. Defendant's motion to set aside the verdicts was overruled. Thereafter, on July 27, 1960, a trial was had on the merits of plaintiff's (Mrs. Bonney's) case. The jury found for plaintiff and fixed her damages at $5,000 upon which judgment was entered. We granted defendant a writ of error.
Defendant relies solely upon assignments of error Nos. 3 and 4. They relate to the trial on defendant's special plea of release, and they allege that the court erred in overruling defendant's motion to strike plaintiff's evidence because plaintiff failed to prove (1) "fraud in the procurement of the release by clear, concise and credible evidence", and (2) "a mutual mistake of fact as to her alleged injuries."
We, therefore, are concerned here only with the evidence adduced at the trial on defendant's special plea of release. The Bonneys and defendant were friends and residents of Norfolk, Virginia. They drove to Charlotte, North Carolina, in their respective automobiles to attend a Jehovah's Witness convention. While there, on August 15, 1959, at approximately 10 a.m. defendant, who was following Bonney's vehicle, negligently operated her car and struck Bonney's vehicle in the rear causing it damage. Defendant contacted Robert L. Fry, a claims adjuster for her insurance carrier, The Celina Mutual Insurance Company. Fry drove to the scene of the accident, and made arrangements for necessary temporary repairs to Bonney's car at Kiser's *935 garage. He then escorted the Bonneys and defendant to a local hospital, where plaintiff was examined by Dr. Basil Boyd, an orthopedic surgeon. The X-rays taken were negative. Dr. Boyd diagnosed her injury as "a complaint of lombar cervical spine". He rendered her "emergency treatment which consisted of a sedative and muscle relaxer and told her to contact her physician on her return to Norfolk if necessary". The examination consumed about an hour, after which the Bonneys left the hospital.
Later in the day the Bonneys contacted Fry on the telephone and arrangements were made for Fry to drive them the next morning to Kiser's garage where the automobile had been temporarily repaired. There, according to Fry, Bonney told him of plaintiff's condition and that Dr. Boyd had said there would possibly be additional treatments by an orthopedic doctor in Norfolk. Fry said there was a discussion with respect to the amount of damages sustained as a result of the accident, after which the Bonneys agreed to accept $197.96 in settlement of their claims. It covered repairs made to the automobile; $75.46 for additional repairs required; $15 to pay Dr. Boyd; $15 to pay the hospital; $5 for a telephone call, and the balance was for further medical treatment of plaintiff, if necessary. As a consequence he said that he filled in a release form [1] in their presence and explained *936 to them it was a release from any and all claims resulting from the accident, and that the Bonneys read it before signing. Their signatures were witnessed by A. A. Ramsey, a Charlotte police officer, and Robert V. Kiser, who were at the garage. Ramsey testified that the release was filled in and signed by the Bonneys in his presence; that he and Kiser signed as witnesses in their presence; that Bonney explained to him what "it was all about" and was satisfied, and that he appeared to be normal and joked at the time.
That we, Maurice W. Bonney and Shirley A. Bonney husband and wife,
(Husband)
(Wife) residing at 1399 Willow Ave. Norfolk 6, Va. and each being of lawful age, for the sole consideration of One Hundred Ninety Seven and 96/100 dollars ($197.96) to us in hand paid, the receipt whereof is hereby jointly and severally acknowledged, have remised, released, and forever discharged and by these presents do, severally and jointly, for ourselves and for our heirs, executors, administrators, and assigns, do hereby remise, release, and forever discharge Sadie M. Corbett and his, her, their, and its successors and assigns, and each of their heirs, executors, and administrators, and all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action, of whatsoever kind or nature, arising from or by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, loss and damage to property, and the consequences thereof, resulting, and to result, from an accident which happened on or about the 15th day of August, 1959, at or near The intersection of Independence Blvd. & So. Tryon St. Charlotte, N.C.
It is further understood and agreed that this settlement is the compromise of doubtful and disputed claims, and that the payments are not to be construed as an admission of liability on the part of Sadie M. Corbett by whom liability is expressly denied.
This release contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this release are contractual and not a mere recital.
We further state that we have carefully read the foregoing release and know the contents thereof, and we sign the same as our own free acts.
WITNESS our hands and seals this 16th day of August, 1959. SIGNED IN THE PRESENCE OF CAUTION: READ BEFORE SIGNING A. A. Ramsey 4014 Paisley Place Charlotte, N.C. Robert V. Kiser 900 Walnut
Maurice W. Bonney (SEAL)
Shirley A. Bonney (SEAL)""
Bonney stated that when he signed the release, neither he nor Fry knew that he was injured. On the other hand, plaintiff said her husband was "nearly crazy and was having pain". Both plaintiff and Bonney testified they did not read the instrument before signing it and that it was not discussed as a release. When Bonney was asked what was said with regard to plaintiff's releasing any claim for her injury, he replied: "He [Fry] said that this was in order to get her out of the hospital in Charlotte, and to get my car, and that that was all I was supposed to be signing for." When asked if there was any particular reason why he did not read the release before executing it, he said: "Well, I was so excited and so upset on account of my wife's injury, and I thought that Mr. Fry was being fair with me, so I just signed it thinking that he was being fair in telling me that I was only signing for my car and for my wife up until that point. So, therefore, I signed it."
Plaintiff stated Fry was "so nice about everything"; that at the garage he said "that I could now be turned over to my husband, that I was O.K. to go back"; that the car was ready, and that the signing of the form "was just a formality that was routine, that had to be done on every occasion." Plaintiff testified that she did not read the release because "I thought that he [Fry] was telling the truth," and that had she known the extent of her injuries and that the instrument was a release, she would not have signed it. She further testified:
"Q. After you signed it did Mr. Fry ever say anything to you about getting further medical treatment in Norfolk?"
"A. When I went over and got in my car and we were getting *937 ready to leave the garage -- and, in fact, leave the City of Charlotte -- he came over and I rolled down the window, and he said that he hoped I would be getting along all right, and to go ahead and have whatever medical attention I needed, and to do that until I got well, and that he hoped I would be feeling good."
* * *
"Q. When you were examined by Dr. Boyd in Charlotte, Mrs. Bonney, did he indicate to you that you might have need for further treatment in Norfolk?"
"A. Yes, sir."
"Q. You knew that at the time you signed that paper, did you not?"
"A. I knew that I would have to have something more done, because I was just in so much pain. I could not walk alone. I had to have the help of my husband. I knew that something was wrong."
After signing the release, the Bonneys returned to Norfolk where Mrs. Bonney received a number of treatments for her injury.
Fry, not having draft authority, forwarded the release to defendant's insurance carrier, who in turn mailed three drafts totalling the sum of $197.96, payable to the Bonneys and others. But before Fry received the drafts, he was advised by letter that Robert Cohen of the law firm of Amato, Babalas, Breit and Cohen, of Norfolk, was representing the Bonneys for injuries and damages sustained in the accident. Whereupon, on August 15, 1959, Fry mailed the drafts to Cohen, who returned them to Fry on September 1, 1959.
We shall consider first whether the trial court erred in refusing to strike plaintiff's evidence with regard to fraud because of her failure to prove fraud in the procurement of the release. Since the instrument was executed in North Carolina, the law of that State governs.
Harrison R.R., 229 N.C. 92, 47 S.E.2d 698, involved the validity of a release for injuries plaintiff sustained in an accident during the course of his employment by defendant. Plaintiff was 32 years of age, literate and had business experience. He claimed that he signed the instrument without reading it in reliance upon the statement of defendant's agent that it was for the purpose of admitting him to the hospital, when in fact it was a release from liability in consideration of defendant's agreement to pay all medical and hospital bills with regard to his injuries. In holding that the evidence showed that plaintiff had knowledge of the nature of the instrument and that the evidence was not sufficient to show fraud in the procurement of the release, the court observed: *938
"It is established by the decisions on the subject that one who signs a written instrument, without being induced thereto through fraud or deception, cannot avoid its effect on the ground that at the time he signed the paper he did not read it or know its contents, but relied upon what another said about it. School Com. Kesler, 67 N.C., [443], 448; 45 Am.Jur., 683; Anno. 55 Am. St. Rep., 509. It is the duty of one signing a written instrument to inform himself of its contents before executing it, if he have the ability and opportunity to do so, and in the absence of fraud or overreaching he will not be allowed to impeach the effect of the instrument by showing that he was ignorant of its contents or failed to read it. 96 A.L.R., 995. He cannot invoke his own heedlessness to discredit his solemn release, and then call that heedlessness someone else's fraud. Shaffer Cowden, 88 Md., 394, 41 Atl., 786." 229 N.C. 92, at page 95, 47 S.E.2d 698, at page 700.
See Watkins Grier, 224 N.C. 339, 343, 30 S.E.2d 223; Aderholt
R.R., 152 N.C. 411, 67 S.E. 978; Ashby Dumouchelle, 185 Va. 724, 733, 40 S.E.2d 493.
In 45 Am. Jur., Release, | 18, pp. 683, 684, it is stated:
"In the absence of fraud or a relation of trust and confidence between the parties, a releasor can ordinarily not avoid the effect of a release upon the ground that at the time he signed the paper he did not read it or know its contents, but relied on what another said about it. * * *" See 76 C.J.S., Release, | 25 b, pp. 647, 648.
Plaintiff argues "the testimony shows that the adjuster here befriended the claimants and ingratiated himself with them in order to eventually more easily mislead them with regard to the release agreement." Plaintiff's testimony was that Fry told her that when there was an accident, the car was of less concern and the injured had to be cared for first; that plaintiff was his responsibility, and that he wanted her to be seen by a doctor, which was done. She said that he had the car taken to the repair shop; that he offered the Bonneys the use of his car; that he offered to take them to breakfast; that he drove them to the garage to get their automobile, and that he "was just so nice about everything." We find no merit in this contention.
Bonney was 29 years old and Mrs. Bonney was age 24 at the time of the accident. Both could read and write. He was employed as cashier and credit manager for Miller Motor Express, and was familiar with bills of lading and other similar documents. At the top of the release in large type are these words: "GENERAL RELEASE, HUSBAND AND WIFE", and at the bottom, immediately above *939 the space reserved for claimants' signatures, is "CAUTION: READ BEFORE SIGNING." Bonney stated they signed the release without reading it because Fry said it was to get plaintiff out of the hospital and to get his car. It is difficult to believe that the Bonneys could have relied upon such a statement. In the first place, plaintiff was not in the hospital, and in the second place, the car could have been secured by the payment of $20 without signing anything. The statement attributed to Fry by plaintiff that the instrument "was just a formality that was routine, that had to be done on every occasion", can hardly be considered as fraud or misrepresentation of a material fact. It is common knowledge that when a settlement has been agreed upon, a release is usually executed by the claimant.
Here the plaintiff had the ability and the opportunity to read the release, and it was her duty to do so before signing it. No valid excuse has been shown for not reading the instrument. She cannot invoke her own heedlessness to discredit her solemn release, and call such heedlessness another person's fraud. It is a cardinal rule that fraud must be proved by clear, cogent and convincing evidence. On the record before us the evidence does not measure up to that degree of proof, and we find, as a matter of law, that there was no fraud in the procurement of plaintiff's signature to the release.
We shall now consider whether the trial court erred in overruling defendant's motion to strike plaintiff's evidence as to mutual mistake on the ground that a mutual mistake of fact as to plaintiff's injuries had not been proved.
In 45 Am. Jur., Release, | 20, pp. 685, 686, it is stated: "* * * While a mistake as to the extent of the injury, due to unknown conditions, is material, it would seem that unknown and unexpected consequences of a known injury will not bring a case within the rule permitting avoidance of a release on the ground of mutual mistake. In order to avoid a release on the ground of mutual mistake as to the nature or extent of the injuries, there must be more than a mere mistake as to the time which will probably be required for recovery from a known injury, since a statement by the releasee's physician in this regard may be considered ordinarily as a mere expression of opinion. * * *" See Annotation 48 A.L.R. p. 1464, et seq., 76 C.J.S., Release, | 25a, pp. 645, 646.
The evidence shows that plaintiff knew at the time she executed the release that further treatment of her injuries would be required. Fry was also aware of that fact. A sum, though small, was included in the release for additional medical treatment, if necessary. There *940 was no evidence adduced at the trial on the release that she had any injury other than that which she was diagnosed as having by Dr. Boyd. The fact that the treatment of plaintiff's known injuries has been prolonged does not bring her case within the rule permitting avoidance of the release on the ground of mutual mistake. As was said in Fix Craighill, 160 Va. 742, 755, 169 S.E. 598, "Mistakes as to matters which the contracting parties had in mind as possibilities and as to the existence of which they took the risk are not such mistakes of fact as to entitle either party to relief."
Ice Company Lee, 199 Va. 243, 99 S.E.2d 721, cited by plaintiff, is factually different from the present case and is not controlling.
We hold, as a matter of law, that the evidence was insufficient to support a finding that there was a mutual mistake of fact with regard to plaintiff's (Mrs. Bonney's) injuries, and that the trial court erred in overruling defendant's motion to strike her evidence.
For the reasons stated the verdict and judgment awarding plaintiff $5,000 are set aside; the verdict and judgment in favor of plaintiff, Shirley Ann Bonney, on the trial of the special plea are set aside, and final judgment is here entered for defendant on the special plea of release.
Reversed and final judgment.
NOTES
[1] "GENERAL RELEASE, HUSBAND AND WIFE KNOW ALL MEN BY THESE PRESENTS: | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1322991/ | 104 Ga. App. 237 (1961)
121 S.E.2d 409
MAXWELL et al.
v.
HOLLIS, Administratrix.
38910.
Court of Appeals of Georgia.
Decided July 6, 1961.
Rehearing Denied July 27, 1961.
Walton Hardin, for plaintiffs in error.
Lawson E. Thompson, contra.
CARLISLE, Presiding Judge.
1. Grounds of a motion for a new trial complaining of error in specified portions of the charge *238 must point out expressly wherein such portions were error. Cardell v. State, 70 Ga. App. 45 (27 SE2d 250); Wynn v. State, 74 Ga. App. 231 (3) (39 SE2d 425); Haire v. State, 89 Ga. App. 629 (2) (80 SE2d 497).
2. A mere general assignment that a specified portion of the charge was error presents only the question of whether or not such charge stated an abstractly correct proposition of law. Central Ry. Co. v. Bond, 111 Ga. 13, 17 (8) (36 S.E. 299); Burden v. Gates, 190 Ga. 300 (2) (9 SE2d 245); Shellnut v. Carroll County, 30 Ga. App. 200 (2) (117 S.E. 333); Mendel v. Converse & Co., 30 Ga. App. 549, 559 (41) (118 S.E. 586; Bankers Health &c. Ins. Co. v. Givens, 43 Ga. App. 43, 49 (3) (157 S.E. 906). Such an assignment of error presents the question of the abstract correctness of the whole portion of the charge thus excepted to, and where such portion contains one or more distinct propositions which are abstractly correct, such assignment is not sufficiently specific to invoke any decision by the court. Anderson v. Southern Ry. Co., 107 Ga. 500, 511 (33 S.E. 644); Burden v. Gates, supra; Shellnut v. Carroll County, supra, (hn. 3).
3. Under the proposition first stated, an assignment of error that a specified portion of the charge is inapplicable or that it did not apply to the law of the case (Georgia-Florida Motor Lines v. Slocumb, 45 Ga. App. 204 (3), 164 S.E. 166; Watson v. Ray, 88 Ga. App. 483, 484 (1), 77 SE2d 53), or that it is misleading and confusing to the jury or gives them a false impression (Roberts v. State, 88 Ga. App. 767, 769 (1b), 77 SE2d 825), or that it is in conflict with other unspecified portions of the charge (Jackson v. State, 180 Ga. 241 (3), 178 S.E. 653; Sutton v. Allen, 87 Ga. App. 25, 28 (1), 72 SE2d 921), or that such portion of the charge is harmful and erroneous (Craig v. Augusta Roofing &c. Works, 78 Ga. App. 514, 515 (3), 51 SE2d 565), but which assignments of error do not point out how or wherein such charge was inapplicable or how it created a false impression or misled the jury, or with what other portions of the charge it was in conflict or how or in what way it was harmful to the defendant, are entirely too vague and general to present any question for decision. Likewise a mere general assignment of error that the portion of the charge amounted to a directed verdict for the defendant and completely charged the movant out of court and that it made it impossible for the movants to have the jury find *239 in their favor, is entirely too general to present any question for decision.
4. This case was an appeal to a jury in the superior court from an adverse judgment of the court of ordinary on the appellant's petition for the removal of the appellee as an administratrix of an estate. In previous litigation between the same parties, the Supreme Court had held that the appellee was precluded under the rule announced in Parnelle v. Cavanaugh, 191 Ga. 464 (12 SE2d 877) from asserting a claim as an individual against herself as administratrix of the estate she represented for services rendered by her to the intestate and to enforce an alleged contract of the intestate to will property to her. Maxwell v. Hollis, 216 Ga. 224, 226 (3a) (115 SE2d 360); Williams v. McHugh, 17 Ga. App. 59, 61 (86 S.E. 272). This ruling constituted a final adjudication against the right of the appellee to assert such a claim in her individual capacity against the estate which she represents so long as she continues to represent the estate. However, such ruling did not constitute any adjudication as to the appellee's fitness to serve as administratrix as no such question was presented or could have been presented in that litigation. It follows that the trial judge, in instructing the jury that the fact that the appellee had filed a claim against the estate was a matter which the jury could take into consideration in ascertaining whether her interest was so adverse to the estate as to render her unfit to serve as administratrix, did not charge contrary to the previous judgment and decision of the Supreme Court rendered in an entirely separate and distinct case between the same parties.
5. The foregoing rulings dispose of all of the contentions made by grounds 4 and 5 of the amended motion for a new trial which assigned error on portions of the charge to the jury, and under the rulings above made the trial court did not err in overruling those grounds of the motion.
6. Ground 6 of the motion assigns error because the court permitted certain testimony to be given before the jury "over timely objection by the movants." This ground wholly fails to state what objection was made and it presents no question for decision. Culpepper v. Hall, 22 Ga. App. 715 (1) (97 S.E. 111); Atlanta Life Ins. Co. v. Jackson, 34 Ga. App. 555 (2) (130 S.E. 378); Kuusisto v. Wilkins, 56 Ga. App. 405 (1) *240 (192 S.E. 639); Kimball v. State, 63 Ga. App. 183 (1) (10 SE2d 240).
7. The evidence authorized the verdict of the jury in favor of the defendant and finding against the petition to remove her as administratrix, and the trial court did not err in overruling the general grounds of the motion for new trial.
Judgment affirmed. Nichols and Eberhardt, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323001/ | 104 Ga. App. 136 (1961)
121 S.E.2d 82
MAYOR & COUNCIL OF CITY OF ATHENS
v.
COOK.
38922.
Court of Appeals of Georgia.
Decided July 10, 1961.
*137 James Barrow, for plaintiff in error.
Guy B. Scott, Jr., contra.
BELL, Judge.
The question for decision is whether the State Board of Workmen's Compensation may lawfully make an award of a lump sum payment of contingent attorney's fees in a death case without (a) a specific finding that such an award is in the best interest of the dependent widow, or that it will prevent undue hardship on the employer without prejudicing the interest of the dependent widow and (b) without any evidence in the record on which such a finding might be based.
The record before us contains no evidence presented at the hearing on the application for lump sum payment of attorney's fees.
Code Ann. § 114-417, authorizing the redemption of workmen's compensation awards by a lump sum, provides to the extent here relevant, "Whenever any weekly payment has been continued *138 for not less than 26 weeks, the liability therefor may, when the State Board of Workmen's Compensation deem it to be to the best interest of the employee or his dependents, or where it will prevent undue hardship on the employer or his insurance carrier, without prejudicing the interests of the employee or his dependents, be redeemed, in whole or in part. . ."
In Lumbermen's Mut. Cas. Co. v. McIntyre, 67 Ga. App. 666 (21 SE2d 446), there had been a prior award in favor of the claimant for total disability for a period not exceeding the statutory maximum. Approximately eleven months later an award was made to the effect that after due consideration the board was of the opinion that it would be to the best interest of the claimant to grant the remaining payments of compensation in a lump sum. The insurer was ordered to pay the lump sum balance. The record there revealed that no evidence was heard on the application of the claimant to have the compensation paid in a lump sum. In reversing the award, this court held that the board erred in making the award of a lump sum without hearing any evidence on the statutory requirements as to whether it was to the best interest of the employee or her dependents or as to whether it would prevent any undue hardship to the employer or his insurance carrier. The statutory language, "when the Industrial Board deem it to be the best interest of the employee," was interpreted as being synonymous with being "considered" and "adjudged."
In Tillman v. Moody, 181 Ga. 530 (1, 2, 3), 536, 537 (182 S.E. 906), the Supreme Court held that an agreement for a lump sum settlement, even though approved by the board (then the Department of Industrial Relations), was contrary to public policy and void, since it did not conform to the terms of the act; that the board is without jurisdiction or authority to approve any lump sum settlement not made in conformity with Code Ann. § 114-417; and that the authority there conferred is limited to a determination of whether or not a lump sum settlement will be to the best interest of the employee or his dependents or will prevent undue hardship on the employer or his insurance carrier without prejudicing the interests of the employee or his dependents.
*139 The award in the present case contains no determination as to either of these alternatives, and must be reversed.
While it may be difficult to ascertain whether or not the lump sum payment of attorney's fees can affect the best interest of the employee or his dependents, or awarding it would prevent undue hardship on the employer or his insurance carrier without prejudicing the interest of the employee or his dependents, evidence sufficient to support a finding of either one or the other of the statutory requirements must be presented, and the board must find either one or the other, before it is authorized to make such an award.
Judgment reversed. Felton, C. J., and Hall, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323046/ | 121 S.E.2d 873 (1961)
255 N.C. 503
Lawrence GATHINGS
v.
John Henry SEHORN.
No. 163.
Supreme Court of North Carolina.
October 11, 1961.
*875 Dolley & DuBose, Gastonia, for plaintiff appellant.
Hollowell & Stott, Gastonia, for defendant appellee.
WINBORNE, Chief Justice.
The plaintiff contends that the judge below committed prejudicial error in his charge to the jury in that he included the plaintiff's requested instruction on the issue of contributory negligence in the portion of his charge relative to the first issue, or defendant's negligence. This, the plaintiff contends, confused and misled the jury.
We cannot agree with this contention. The record reveals that the trial judge did explain a portion of the law relative to contributory negligence while discussing negligence, but the record also reveals that the judge made it clear to the jury that he was at that moment discussing "contributory negligence, which I will come to in the next issue." As this Court has often stated: "The charge is sufficient if, when read contextually, it clearly appears that the law of the case was presented to the jury in such manner as to leave no reasonable cause to believe that it was misled or misinformed with respect thereto." In re Will of Crawford, 246 N.C. 322, 98 S.E.2d 29, 32; Barnes v. Caulbourne, 240 N.C. 721, 83 S.E.2d 898; Vincent v. Woody, 238 N.C. 118, 76 S.E.2d 356.
Plaintiff further assigns as prejudicial error the failure of the judge to charge the jury with reference to G.S. § 20-174(e) which provides that, "every driver of a [motor] vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary."
However, as was indicated in Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484, this section of G.S. § 20-174 states the common law rule of negligence. Since the jury found that defendant was negligent, failure to charge specifically on this statute would not be prejudicial to plaintiff.
Finally, plaintiff contends that the court erred by submitting the question of contributory negligence to the jury. We find no merit in this contention.
In Kellogg v. Thomas, 244 N.C. 722, 94 S.E.2d 903, the facts were similar to those in the instant case. In that case the trial court held the plaintiff-workman guilty of contributory negligence as a matter of law and granted nonsuit. On appeal, this Court, speaking through Parker, J., outlined the rights and duties of a workman working upon a highway, and held that the issue of contributory negligence should have been submitted to the jury. In the present case the issue of contributory negligence was submitted to the jury, there being sufficient *876 evidence to justify a finding either for or against plaintiff. Since the jury found that plaintiff was guilty of contributory negligence, it would seem that plaintiff has had his day in court.
The case was fairly tried; the jury received proper instructions and rendered its verdict against plaintiff. We find no prejudicial error.
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323066/ | 239 S.C. 22 (1961)
121 S.E.2d 235
Vaught LISTER, as Guardian ad Litem for John Dill and Broadus Dill, Respondent,
v.
Foster GOSSETT, Blue Ridge Land Company, Inc., Eva Dill, Willard Dill, J.L. Dill, Alta Lister and Hubert M. Styles, Respondents, of whom Blue Ridge Land Company, Inc., Foster Gossett and Hubert M. Styles are Appellants.
17820
Supreme Court of South Carolina.
August 8, 1961.
Messrs. L.E. Wood and John M. Rollins, of Greer, and Sumter B. Sams, of Spartanburg, for Appellants.
Messrs. Chapman & Hooper, of Greenville, for Respondents.
*23 August 8, 1961.
TAYLOR, Chief Justice.
This appeal is from an Order of the County Court of Greenville County affirming the Report of the Master that the sale of certain property sold in partition at public auction in which respondents owned an interest should be set aside as respondents are non compos mentis and were not represented in said sale by a guardian ad litem.
Section 10-236, Code of Laws of South Carolina, 1952, Cumulative Supplement, deals with the appointment of a guardian ad litem in such cases and provides the method whereby the rights of persons non compos mentis may be adjudicated, as follows:
"When a mentally incompetent person is a plaintiff his guardian ad litem shall be appointed upon application made by his committee or by a relative or friend and, if by a relative or friend, notice thereof must first be given to his committee or, if he has no committee, to the person with whom he resides. When the incompetent person is a defendant his guardian ad litem shall be appointed upon application made by his committee, if he has a committee and if the committee applies within twenty days after the service of summons, or, if his committee neglects or fails to apply within that time or if he has no committee, by a relative or friend or any other party to the action. If application is made by a relative or friend or other party to the action, notice thereof must first be given to the committee or if there is no committee, to the person with whom the incompetent person resides. The application shall be made to, and the appointment shall *24 be made by, (1) the court in which the action is prosecuted, (2) a judge, the clerk or the master thereof or (3) by the probate judge of the court of probate of the county in which the incompetent person resides or for the county in which the action is prosecuted. An attorney or other competent person shall be appointed to act as guardian ad litem for the incompetent person. * * *"
In the former proceeding certain property in which the said John Dill and Broadus Dill owned an interest as tenants in common was sold in partition at public sale to the said Foster Gossett and Blue Ridge Land Company, Inc. The purchase price was paid to the Master, but the sale had not been confirmed when the action from which this appeal stems was commenced. Validity of the original Order is challenged upon the grounds that the sale price was inadequate and that the Court did not acquire jurisdiction of the said John Dill and Broadus Dill by reason of their mental disability and that they were not represented by guardian ad litem or committee.
In the original action, plaintiffs were aware of the mental condition of the said John Dill and Broadus Dill as they addressed to them, as persons non compos mentis, and to their mother, with whom they resided, a citation requiring them to apply for the appointment of a guardian ad litem to appear for them and should they fail to do so, plaintiffs' attorney would apply for such appointment. No application was made for such appointment by the mother or plaintiffs' attorney and no such appointment was made. Appellants therefore failed to comply with the provisions of Section 10-236, Code of Laws of South Carolina, 1952, Cumulative Supplement, and the Order setting aside the sale must be affirmed; and it is so ordered.
Affirmed.
OXNER, MOSS and LEWIS, JJ., and J.B. NESS, Acting Associate Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323201/ | 152 Ga. App. 583 (1979)
263 S.E.2d 475
TERRY
v.
LIBERTY MUTUAL INSURANCE COMPANY et al.
58134.
Court of Appeals of Georgia.
Submitted July 9, 1979.
Decided November 14, 1979.
Rehearing Denied November 28, 1979.
Tyron Elliott, for appellant.
John M. Taylor, for appellees.
SMITH, Judge.
Appellants appeal the denial of their claims for workers' compensation benefits. We reverse and remand.
On January 3, 1977, the deceased was running errands in the company tow truck. While he was returning to his place of business, the tow truck was struck by a Seaboard Coast Line train at the Wrightsville Crossing near Manchester, Georgia. The deceased was killed instantly. Appellants filed claims for workers' compensation benefits.
The administrative law judge who heard the case denied compensation on two grounds, failure to stop at a railroad crossing as required by Code § 68A-701(a)(3), and intoxication. See Code § 114-105. After a de novo hearing, the State Board of Workers' Compensation found that the deceased was not intoxicated, but nonetheless denied benefits on the ground that "the cause of the accident was the deceased's failure to stop at a grade crossing in violation of Code § 68A-701 [(a)] (3) ..." On appeal to the Superior Court of Meriwether County, the board was reversed on the question of intoxication. The court upheld the denial of benefits on both grounds.
1. The State Board of Workers' Compensation found, as a matter of fact, that "the weight of the evidence showed [the deceased] was not intoxicated," notwithstanding that a blood test indicated that the deceased's blood had an alcohol content of .23 per cent. See Code § 68A-902.1(b) (3). Since there was evidence from which the board could have determined that the deceased was not intoxicated at the time of the accident, the trial court erred in reversing the board's finding with respect to intoxication. Mission Ins. Co. v. Ware, 143 Ga. App. 550 (239 SE2d 162) (1977).
2. The board denied compensation on the ground that "the cause of the accident was the deceased's failure to stop at a grade crossing in violation of Code § 68A-701[(a)] (3) ..." However, the board made no finding *584 that the deceased's failure to stop at the stop sign was "wilful." "The general rule is that mere violations of instructions, orders, rules, ordinances, and statutes, and the doing of hazardous acts where the danger is obvious, do not, without more, as a matter of law, constitute wilful misconduct;... Such violations or failures or refusals generally constitute mere negligence, and such negligence, however great, does not constitute wilful misconduct or wilful failure or refusal to perform a duty required by statute, and will not defeat recovery of compensation by the employee or his dependents." Aetna Life Ins. Co. v. Carroll, 169 Ga. 333(a) (b) (150 SE 208) (1929). In the absence of a finding that deceased's failure to stop was "wilful" the denial of benefits by the board was erroneous. Code § 114-105; Travelers Ins. Co. v. Gaither, 148 Ga. App. 251 (251 SE2d 66) (1978).
3. "Neither the superior court nor this court has authority to substitute itself as a fact-finding body in lieu of the board." Employers Ins. Co. v. Amerson, 109 Ga. App. 275, 277 (136 SE2d 12) (1964); Bloodworth v. Continental Ins. Co., 151 Ga. App. 576 (1979). The case must be remanded to the State Board of Workers' Compensation in order that it may determine whether the deceased's failure to stop was wilful.
Judgment reversed and remanded. Quillian, P. J., and Birdsong, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323210/ | 152 Ga. App. 616 (1979)
263 S.E.2d 503
VERNON
v.
THE STATE.
58582.
Court of Appeals of Georgia.
Submitted September 6, 1979.
Decided November 30, 1979.
P. T. McCutchen, for appellant.
Frank C. Mills, III, District Attorney, J. Britten Miller, Jr., Assistant District Attorney, for appellee.
CARLEY, Judge.
Vernon was indicted for burglary with three co-defendants and tried separately. At the trial two of the co-defendants testified that they had broken into a drug store in Blue Ridge, Georgia and taken drugs and money; and that Vernon, who had planned the burglary and enlisted their help, circled the block in his car while they entered the store. Testimony of the co-defendants was also corroborated by that of the owner of the drug store, investigating officers and introduction of physical evidence which had been described in prior statements and during trial. The jury returned a guilty verdict and Vernon was sentenced to ten years, three years to be served on probation. He appeals, enumerating as error (1) the general grounds of insufficiency of the evidence to support the verdict and (2) failure of the trial judge to grant a motion for mistrial based on allegedly prejudicial questions asked by the district attorney.
1. The evidence amply corroborated the testimony of the accomplices that Vernon initiated and participated in the burglary. See Phillips v. State, 148 Ga. App. 174, 175 (4) (251 SE2d 128) (1978); Bradley v. State, 148 Ga. App. 722 (1) (252 SE2d 648) (1979) and cits. After a review of the *617 entire record, we find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of guilt of the defendant beyond a reasonable doubt. Jackson v. Virginia, ___ U. S. ___ (99 SC 2781, 61 LE2d 560). Accordingly, the enumeration of error based on the general grounds is without merit.
2. Vernon complains that the district attorney's improper examination of witnesses on two occasions constituted grounds for a mistrial. The first incident arose when the district attorney asked a defense witness if she knew where her husband had met the appellant and then suggested, "Could it have been in prison?" Defense counsel interjected, "Your Honor, Mr. Vernon has never been in prison," and then asked "May I make a Motion for Mistrial?" The jury was retired and defense counsel moved to dismiss the indictment and again for mistrial. The district attorney explained that he knew the witness' husband had been in prison and meant no implication that the appellant was ever in prison. The judge denied both motions and recalled the jury, at which time he gave the jury exceedingly full and complete corrective instructions.
"Where counsel makes an improper statement in the hearing of the jury it is the duty of the court to rebuke counsel and instruct the jury so as to remove the improper impression, or in his discretion he may order a mistrial. Code § 81-1009; London v. State, 142 Ga. App. 426 (1) (236 SE2d 158).
"Our Supreme Court has held that where the trial court acts immediately to correctly charge the jury to disregard such statement and takes such action as in his judgment will prevent harm to an accused, a new trial will not be granted unless it is clear that his action failed to eliminate from the consideration of the jury such improper remark. [Cit.] Where such instructions by the court to the jury `was full,' it amounted to a rebuke of counsel. [Cit.] ... The instruction was full and correct." Pullen v. State, 146 Ga. App. 665, 666 (1) (247 SE2d 128) (1978).
The other elicitation of testimony attacked by Vernon occurred when the district attorney asked one of the co-defendants who was testifying for the state if he *618 knew what Vernon's general reputation was in the community. Receiving a negative reply, he asked, "Jeff, have you heard that Mr. Vernon was arrested for bank robbery?" The witness responded "Yes, sir." The appellant's attorney objected, and the court sustained the objection and asked the jury to retire. The court then admonished the district attorney and there was an extended colloquy as to the prejudicial effect of the question, but no motion for mistrial was made by defense counsel. In fact, at the close of the discussion when asked by the judge if he had further authority to cite, defense counsel replied that he did not and believed the district attorney had withdrawn the question anyway and the district attorney agreed that he had done so. "[T]he judge was not required to grant a mistrial on his own motion where defense counsel [waived his objection] and failed to specify what further form of relief, if any, was desired. [Cit.]" Mathis v. State, 136 Ga. App. 701, 702 (2) (222 SE2d 647) (1975). See also Lofton v. State, 142 Ga. App. 579 (236 SE2d 508) (1977); International &c. Local 387 v. Moore, 149 Ga. App. 431, 433 (5), 434 (7) (254 SE2d 438) (1979); Crowder v. State, 233 Ga. 789, 790 (2, 3) (213 SE2d 620) (1975). No reversible error appearing for any reason asserted, the judgment is affirmed.
Judgment affirmed. Deen, C. J., and Shulman, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261919/ | 861 F.Supp. 303 (1994)
John CARTER, John Swing and John Veronis, Plaintiffs,
v.
HELMSLEY-SPEAR, INC. and 474431 Associates, Defendants.
No. 94 Civ. 2922 (DNE).
United States District Court, S.D. New York.
August 31, 1994.
*304 *305 *306 *307 *308 *309 *310 Richard A. Altman, and Hughes Hubbard & Reed, New York City (Charles Lozow, Daniel H. Weiner, John J. McGreevy, Patrick T. Perkins, of counsel), for plaintiffs.
Davidoff & Malito, New York City (Matthew Feigenbaum, Adrian Zuckerman, Robert C. Boneberg, Jill Rosenthal, John Harris, of counsel), for defendants.
OPINION & ORDER
EDELSTEIN, District Judge:
Plaintiffs bring this action to prevent the alteration or destruction of certain art work installed by them in the lobby of a commercial building located in Queens, New York, *311 and to recover money damages, costs, and attorney's fees. Plaintiffs' first claim seeks relief pursuant to the Visual Artists Rights Act of 1990. This claim raises a number of issues of first impression. Plaintiffs' complaint, as amended by the Joint Pretrial Order ("JPTO")[1] (JPTO, at ¶ 1), also alleges willful infringement of copyright, and raises two supplemental state law claims, tortious interference with contract and unlawful ejection. Defendants raise a single counterclaim alleging waste.
On or around April 21, 1994, plaintiffs brought an order to show cause seeking a temporary restraining order to, among other things, prevent defendants from taking any action to alter, deface, modify, or mutilate plaintiffs' sculptures and installations located at 47-44 31st Street, Queens, New York. On April 25, 1994, this Court heard argument from both plaintiffs and defendants regarding plaintiffs' application for a temporary restraining order. On April 26, 1994, this Court issued a temporary restraining order enjoining defendants from (a) taking any action to alter, deface, modify, or mutilate plaintiffs' sculptures and installations located at 47-44 31st Street, Queens, New York; and (b) denying plaintiffs access to 47-44 31st Street, Queens, New York, Monday through Friday, between the hours of 12:00 p.m. and 5:00 p.m.[2]
On May 5, 1994, this Court commenced a hearing ("the preliminary injunction hearing") on plaintiffs' motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure ("Rule") 65. Plaintiffs sought an order enjoining defendants, during the pendency of this action, from "(a) taking any action to alter, deface, modify or mutilate plaintiffs' sculptures and installations located at 47-44 31st Street, Queens, New York; (b) taking any action to breach the agreements heretofore entered into between plaintiffs, Sig Management Company and 47-44 31st Association, L.P.; and (c) denying plaintiffs, their employees and invitees such access to the Property as had been enjoyed by them heretofore."
During the course of the preliminary injunction hearing, which commenced on May 5, 1994 and continued through May 13, 1994, this Court heard oral argument and received documentary evidence in support of, and in opposition to, plaintiffs' motion for a preliminary injunction. In addition, plaintiffs and defendants called both expert and fact witnesses. Pursuant to Rule 65(a)(2), all evidence received, and testimony adduced, at the preliminary injunction hearing is part of the record on the trial of this action.
On May 18, 1994, this Court filed an Opinion & Order, see Carter v. Helmsley-Spear, Inc., 852 F.Supp. 228 (S.D.N.Y.1994) ("May 18 Opinion"), granting in part and denying in part plaintiffs' motion for a preliminary injunction. In the May 18 Opinion, this Court ordered, inter alia, that "during the pendency of this action, defendants, their employees, and agents, are enjoined from (a) taking any action to alter, deface, modify, or mutilate plaintiffs' sculptures and installations located at 47-44 31st Street, Queens, New York; and (b) denying plaintiffs and their invitees access, between the hours of 9:00 a.m. and 5:00 p.m. Monday through Friday, to the Lobby of 47-44 31st Street, Queens, New York for the purpose of viewing, photographing, or videotaping the Work." Id. at 239.
This Court tried this action without a jury over several days in June and July of this year. Plaintiffs and defendants each called both fact and expert witnesses, and offered into evidence portions of depositions and documentary evidence. Pursuant to Rule 52, this Opinion shall constitute the Court's written findings of fact and conclusions of law.
*312 BACKGROUND
Plaintiff John Meade Swing is a sculptor and an artist who has held public exhibitions of his original works of art since 1984. (HTr.[3], at 18-19; UF[4] 1). Mr. Swing is also licensed by the City of New York as a structural steel welder. (HTr., at 21; UF 1). Plaintiff John James Veronis, Jr. is an artist and a sculptor who supports himself through his artistic endeavors. (HTr., at 30; UF 2). Plaintiff John Francis Carter also is a professional artist and sculptor. (HTr., at 37, 39; UF 3). Plaintiffs work as partners to create sculptures and other works of art. Collectively, plaintiffs are known as the "Three-Js," or "Jx3." (HTr., at 60; UF 4).
Defendant 474431 Associates ("Associates") is the owner of a building located at 47-44 31st Street, Queens, New York ("the Property"). Associates has owned the Property since June 1978. (UF 5). The General Partners of Associates are Alvin Schwartz and Supervisory Management Corp. (UF 5). All of the shares of Supervisory Management Corp. are owned by Helmsley Enterprises, Inc. (UF 5). Defendant Helmsley-Spear, Inc. became the managing agent of the Property for its disclosed principal, Associates, on April 6, 1994. (UF 6). Alvin Schwartz is, and during all periods of time relevant to this action has been, an employee of Helmsley-Spear, Inc. (UF 6). Thomas Schwartz is, and during all periods of time relevant to this action has been, an employee and officer of Helmsley-Spear, Inc. (UF 6; TTr., at 222).
On February 1, 1990, 47-44 31st Street Associates, L.P. ("the Limited Partnership") entered into a net lease agreement ("the Net Lease") with Associates to lease the Property. (JPTO, at ¶ 5(d); DExh.[5] BBB). From February 1, 1990 until June 1993, Irvin Cohen, or an entity controlled by him, was the general partner of the Limited Partnership. (UF 9). During this period, Corporate Life Insurance Company ("Corporate Life") was a limited partner in the Limited Partnership. (UF 10). From February 1, 1990 to June 1993, Sig Management Company ("Sig") was the managing agent of the Property for the Limited Partnership. (UF 16). Mr. Cohen controlled Sig and personally was responsible for managing the Property on behalf of Sig and the Limited Partnership from February 1, 1990 until June 1993. (UF 16).
By an agreement dated December 16, 1991 ("the Contract"), plaintiffs contracted with Sig "to design, create and install sculpture and other permanent installations" in the lobby ("the Lobby") and other areas of a building located at 47-44 31st Street, Queens, New York. (DExh. NN; UF 21-27). Under the terms of the Contract, Sig granted plaintiffs "full authority in design, color and style" of the art work to be installed, but retained the authority to direct the location of the installations within the confines of the Property. The Contract provides that plaintiffs are entitled to "receive design credit" for their sculptures and installations and own the copyright to the these sculptures and installations. (DExh. NN; UF 26). Sig was to receive fifty percent of any proceeds earned from the exploitation of this copyright. (DExh. NN). On January 20, 1993, Sig and plaintiffs signed an agreement that extended the duration of the Contract, without material alteration, for an additional year. (DExh. OO).
In or around June 1993, Corporate Life became the general partner of the Limited Partnership. (UF 12). From June 1993 until April 6, 1994 Corporate Life acted as managing agent for the Property and Theodore Nearing of Corporate Life assumed Mr. Cohen's responsibility for managing the Property. (UF 17). In July 1993, the Limited Partnership assumed the Contract, as extended. (UF 116).
On December 29, 1993, Mr. Nearing transmitted a letter to plaintiffs that, with the exception of discontinuing the provision of certain benefits, once again extended the *313 Contract without material alteration. (DExh. B; JPTO, at ¶ 5(h)).
Pursuant to the Contract and subsequent extensions thereof, plaintiffs were each paid $1,000 weekly by Sig from December 1991 until July 1993. (HTr., at 27; UF 29, 30). From July 1993 until April 6, 1994, plaintiffs were each paid $1,000 weekly by the Limited Partnership. (HTr., at 28; UF 31, 32). Throughout this period, plaintiffs continually created art work in the Lobby. (HTr., at 34).
The Net Lease was terminated on March 31, 1994 (UF 19), and the Limited Partnership filed for protection under Chapter 7 of the United States Bankruptcy Code on April 8, 1994 (UF 14). On April 7, 1994, defendants' agents ordered plaintiffs to leave the Property and told plaintiffs that they would be deemed trespassers if plaintiffs subsequently returned to the Property. (UF 109; TTr., at 245-46). At this time, defendants' agents also made certain statements that led plaintiffs to believe that defendants intended to alter or remove the art work installed in the Lobby. Thereafter, this action commenced.
DISCUSSION
I. PLAINTIFFS' FIRST CLAIM FOR RELIEF: THE VISUAL ARTISTS RIGHTS ACT OF 1990
Plaintiffs' first claim for relief is based upon the Visual Artists Rights Act of 1990 ("VARA"), 17 U.S.C. § 101 et seq. (JPTO, at ¶ 4(a)(1)). VARA amends the Copyright Act. In passing VARA, Congress for the first time provided for protection of artists' "moral rights" under the Copyright Act. See Jane C. Ginsburg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 14 Colum.-VLA J.L. & Arts 477, 478 (1990) [hereinafter "Ginsburg"]. "[M]oral rights afford protection for the author's personal, non-economic interests in receiving attribution for her work, and in preserving the work in the form in which it was created, even after its sale or licensing." Id. (footnote omitted); see William F. Patry, Copyright Law and Practice, Ch. 14, at 1021; see also H.R.Rep. No. 101-514, 101st Cong., 2d Sess. 5, reprinted in, 1990 U.S.C.C.A.N. at 6915.
17 U.S.C. § 106A(a)(3) provides that the author of a work of visual art,
subject to the limitations set forth in section 113(d), shall have the right
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
A "work of visual art" is defined to include paintings, drawings, prints, and sculptures, existing in a single copy or in limited edition. 17 U.S.C. § 101. Works made for hire, works of applied art, and works not otherwise subject to copyright protection such as strictly utilitarian objects, are excluded from this definition. Id. The rights delineated in 17 U.S.C. § 106A(a)(3) subsist for the life of the last surviving author of a work created by more than one artist. 17 U.S.C. § 106A(d)(3).
The limitations set forth in 17 U.S.C. § 113(d), which are referenced in 17 U.S.C. § 106A(a)(3), are as follows:
(d)(1) In a case in which
(A) a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), and
(B) the author consented to the installation of the work in the building either before the effective date ... of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, *314 distortion, mutilation, or other modification, by reason of its removal,
then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply.
(2) If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), the author's rights under paragraphs (2) and (3) of section 106A(a) shall apply unless
(A) the owner has made a diligent, good faith attempt without success to notify the author of the owner's intended action affecting the work of visual art, or
(B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.
A. "Work of Visual Art"
i. Evaluation of Whether Plaintiffs' Art Work is a Single Work of Art or Several Works of Art
The first question that must be examined is whether plaintiffs' sculptural installations in the Lobby[6] constitute a single work of art or instead are several discreet works of art that must be treated separately under VARA. The art work in the Lobby consists of a number of sculptural elements including art work attached to the ceiling and the floor, interactive art, a vast mosaic covering the majority of the floor of the Lobby and portions of walls and several sculptural elements, and the interior of three elevators that open into the Lobby. For the reasons discussed below, I find that, with the exception of certain items described below, the art work in the Lobby is a single work of art whose elements are interrelated ("the Work").
Plaintiffs consider the Work to be a single work of art. (TTr., at 116, 147). At the preliminary injunction hearing, Mr. Carter testified that "all of these pieces are interrelated and to remove one contaminates the meaning of the whole piece. It would be like removing part of a painting or the hands from a portrait because we consider this to be one work." (HTr., at 60). Although he obviously has an interest in the outcome of this litigation, I found Mr. Carter to be a credible and sincere witness and I credit this testimony. Mr. Carter's testimony was bolstered by the testimony of the other plaintiffs and by that of expert witnesses called by plaintiffs. For example, plaintiffs called Professor Aedwyn Darroll to testify as an expert in sculpture and other visual art. Professor Darroll has taught two- and three-dimensional design (including sculpture) for more than twenty years (TTr., at 180) and currently teaches at the Parson School of Design and at the Fashion Institute of Technology in New York City (TTr., at 180-81). Professor Darroll testified that the elements of the Work are interrelated. (TTr., at 184-85). I found Professor Darroll to be a well-qualified and credible witness.
In addition, the method by which plaintiffs created the Work supports a finding that the Work is a single work of art. Before a sculptural element was built and installed, plaintiffs conferred to determine whether it would "work well" with the other elements. (TTr., at 114). According to plaintiffs, each sculptural element was "determined very much by the element that [came] before it and these things mesh together." (TTr., at 161).
Other evidence adduced at the preliminary injunction hearing and during the trial also supports plaintiffs' contention that the Work is a single work of art and that the various sculptural elements are interrelated. The Work is composed of several sculptural and other elements that appear to form an integrated whole. (HTr., at 52-83; PExh. 7, 831). For example, tile is attached to the floor and walls to form a vast mosaic. This mosaic is interrelated with sculptural elements that adorn the floor, walls, and ceiling *315 of the Lobby. (See, e.g., HTr., at 55, 63, 79; PExh. 7, 23). The mosaic contains words and phrases that correspond to sculptural elements located on the ceiling and walls. (See, e.g., HTr., at 57; PExh. 7). Several interactive pieces depend for their meaning on neighboring sculptural elements, as well as on phrases and representations depicted in the mosaic tile. (See, e.g., HTr., at 57-58; 62-64). In sum, the various sculptural elements appear to be interrelated rather than distinct works of art that could be separated from the remainder of the Work without losing their meaning.
The Work is also thematically consistent. A primary motif of the Work is recycling. Most of the materials used to make the Work are themselves recycled matter: the floor and wall mosaic is composed of tiles manufactured from recycled glass; most of the sculptural elements are built from discarded objects;[7] and other sculptural elements were created from objects previously owned by tenants of the Property and given to plaintiffs. Various representations, including a statement incorporated in the floor mosaic, "DO YOU REMEMBER WATER," which flows from a depiction of a giant mouth surrounding an elevator, attempt to highlight the negative societal impact of the failure to recycle. A similar example of this is found on the ceiling: Plaintiffs have crafted and hung various sculptural elements that represent "space junk." Viewed in context this particular sculptural element portrays the danger of dumping refuse into space.
In sum, this Court heard testimony that the elements of the Work are interrelated, the Work appears to be interrelated, and the Work is thematically consistent. In addition, upon the request of the parties, this Court conducted an inspection of the art work in the Lobby on July 14, 1994. This Court's inspection of the art work supported evidence in the record that the Work is a single work of art. Accordingly, I credit plaintiffs' contention that the Work is a single work of art, and find that the Work must be considered as a single work of art.
Plaintiffs did not show, however, that several items described in the Joint Pretrial Order (JPTO, at ¶ 5(f)), the "building directory," the "entrance steps 31st Street entrance," and the ceiling and wall lighting (with the exception of lighting elements directly incorporated into the Work such as "the chandelier," "the florescent snake," the "illuminated floor placque," and lighting elements incorporated into various sculptural elements such as the headlights of the bus) are part of, or integrated in, the Work. Accordingly, these items will be discussed separately.
ii. Applied Art
Defendants argue that the Work is not entitled to protection under VARA because it incorporates elements that they describe as "applied art." The term "applied art" describes two-and three-dimensional ornamentation or decoration that is affixed to otherwise utilitarian objects. See, e.g., Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 997 (2d Cir.1980). Works of applied art are not "works of visual art" as defined by VARA, see 17 U.S.C. § 101, and therefore are not protected thereunder.
The Work is a single work of art. Even examined individually, however, the vast majority of the Work's sculptural elements cannot reasonably be described as applied art. Sculptural elements affixed to the ceiling, for example, serve absolutely no utilitarian purpose. These elements do not automatically become applied art merely because the ceiling to which they are attached is a utilitarian object. Such a result would render VARA nonsensical in light of the fact that VARA protects works of visual art that are permanently installed in buildings. Presumably, any part of a building to which such visual art is affixed serves some utilitarian purpose.
Moreover, nothing in VARA proscribes protection of works of visual art that incorporate elements of, rather than constitute, applied art. Indeed, the legislative history *316 of VARA indicates that Congress intended that a work of art can be a "work of visual art" as defined by VARA even if it incorporates elements of applied art. See H.R.Rep. No. 101-514, 101st Cong., 2d Sess. 13-14, reprinted in, 1990 U.S.C.C.A.N. at 6923-24 ("[A] new and independent work created from snippets of these materials, such as a collage, is of course not excluded."). "The courts should use common sense and generally accepted standards of the artistic community in determining whether a particular work falls within the scope of the definition" of works of visual art. H.R.Rep. No. 101-514, 101st Cong., 2d Sess. 11 (1990), reprinted in, 1990 U.S.C.C.A.N. at 6921. While plaintiffs arguably may have incorporated sculptural elements that, if viewed alone, could be defined as applied art, I find that the Work as a whole clearly is not applied art. Thus, protection of the Work is not proscribed.
The same cannot be said of the "building directory," the "entrance steps 31st Street entrance," and the ceiling and wall lighting (with the exceptions noted above, see supra p. 13). These items clearly are works of applied art or strictly utilitarian objects. Hence, these items are not works of visual art and are not protected by VARA.
iii. "Work Made For Hire"
Defendants argue that the Work is a work made for hire. As discussed above, works made for hire are specifically excluded from the definition of works of visual art. 17 U.S.C. § 101 defines a "work made for hire" in pertinent part as
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
It is undisputed that the second part of the definition quoted above does not apply to this case. Accordingly, defendants' argument that the Work was made for hire raises the question of whether plaintiffs were employees of the entities that commissioned the Work and, if they were, whether the Work was prepared within the scope of their employment.
The Copyright Act does not define the terms "employee" or "employment" and, therefore, "the application of these terms is left to the courts." Aymes v. Bonelli, 980 F.2d 857, 860 (2d Cir.1992). In Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), the Supreme Court examined the legislative history of the Copyright Act and concluded that in order to "determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor." 490 U.S. at 751, 109 S.Ct. at 2178. The Reid Court then enumerated factors relevant to the consideration of whether or not a hired party who creates a copyrightable work is an "employee" or an "independent contractor" for purposes of evaluating whether a given work is a "work made for hire." Factors relevant to this inquiry include
the hiring party's right to control the manner and means by which the product is accomplished; ... the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
490 U.S. at 751-52, 109 S.Ct. at 2178-79 (footnotes and citations omitted). The Reid Court noted that "[n]o one of these factors is determinative." Id. at 752, 109 S.Ct. at 2179.
*317 In Aymes v. Bonelli, 980 F.2d 857 (2d Cir.1992), the Second Circuit Court of Appeals reviewed the Reid factors and discussed the weight to be accorded certain factors. The Aymes Court first noted that, under Reid, "[i]t does not necessarily follow that because no one factor is dispositive all factors are equally important, or indeed that all factors will have relevance in every case." Aymes, 980 F.2d at 861. "The factors should not merely be tallied but should be weighed according to their significance in the case." Id. "[T]he Reid test was not intended to be applied in a mechanistic fashion," but rather each of the factors must be considered in light of its relative importance in the case. Id., 980 F.2d at 862.
The Second Circuit found, however, that certain factors "will be significant in virtually every situation." Id. at 861. These factors include:
(1) the hiring party's right to control the manner and means of creation; (2) the skill required; (3) the provision of employee benefits; (4) the tax treatment of the hired party; and (5) whether the hiring party has the right to assign additional projects to the hired party.
Id. Thus, the Court will begin consideration of whether plaintiffs were employees at the time they created the Work with an analysis of these five factors.
1. The Reid Factors Emphasized in Aymes
a. The Right to Control
Sig, Corporate Life, and the Limited Partnership did not have the right to control the manner and means by which the Work was created, nor did these entities dictate the shape or style that the Work would take. Under the terms of the Contract, plaintiffs had "full authority in design, color and style" with regard to the Work. (DExh. NN). The only limitation placed on plaintiffs by the Contract was that the hiring party retained the authority to direct the location of the Work within the confines of the Property. (DExh. NN; HTr., at 195). As adduced at the trial and the preliminary injunction hearing, this limitation took the form of requiring plaintiffs to construct art work primarily within the Lobby. (See, e.g., HTr., at 43-44).
Theodore Nearing, who was in charge of Property-related issues on behalf of Corporate Life and ultimately assumed Mr. Cohen's responsibility for managing the Property, testified that neither he, nor Corporate Life, had any input with respect to the design of the art work in the Lobby. (HTr., 195, 238). Mr. Nearing further testified that, to the best of his knowledge, Sig did not have any input with respect to the design or placement of the art work in the Lobby. (HTr., 195). I found this testimony to be credible.
Plaintiffs also testified that they had complete artistic freedom regarding the manner and means by which the Work was created. At the preliminary injunction hearing, Mr. Veronis testified that it was his understanding that the artists were retained to "make sculptures and install them in the lobby of the building. And it was our decision as to what these sculptures might look like and might appear to be. And we were at liberties to create them and put them up throughout the lobby area of the building." (HTr., at 33). At the time they were retained, plaintiffs understood that they were commissioned to design a lobby that would be a "museum" of their original art work. (HTr., at 21, 39-40). I credit this testimony.
Defendants failed to controvert plaintiffs' evidence on this point. One witness, Mr. Cohen, testified that he "dictated" what he wanted plaintiffs to do in creating the Work. (TTr., at 349). I did not find Mr. Cohen to be a credible witness. As an initial matter, Mr. Cohen's demeanor on the witness stand undermined his credibility. Second, Mr. Cohen's testimony at trial that he dictated the manner in which the Work was created is contradicted by his prior deposition testimony on this point. (See, e.g., TTr., at 541-44, 552). Third, Mr. Cohen's contention that he could dictate to the artists is intrinsically questionable in light of his testimony that, although he made several suggestions to plaintiffs, these suggestions were largely ignored and he never took any action to force compliance with his suggestions. (TTr., at 531-36). Fourth, it became apparent at trial that Mr. Cohen might be sympathetic to *318 defendants' position in this litigation because he is aware that he may be sued by defendants for the actions that he took in relation to the Work should plaintiffs prevail in this action. (TTr., at 519-20, 528). Hence, I do not credit Mr. Cohen's testimony that he "dictated" to plaintiffs regarding the Work.
At trial it also was adduced that certain persons suggested alterations to the Work for safety, aesthetic, and pragmatic reasons. Similarly, the tenants of the building made suggestions concerning the Work, some of which were adopted by plaintiffs. I have considered this testimony and evidence and do not find that it materially limited plaintiffs' artistic freedom. Plaintiffs were open to suggestions by various persons, occasionally adopted those suggestions, and attempted to heed advice that would ensure that the Work was safe, lasting, and aesthetically pleasing. In sum, taken as a whole the record demonstrates that plaintiffs had virtually unfettered discretion in creating the Work.
In their post-trial submissions to this Court, defendants refer to plaintiffs' artistic freedom as "the phony factor." Defendants' Post-Trial Memorandum of Law, at 11. Defendants contend that the Court should give little weight to the issue of plaintiffs' artistic freedom, and argue that even if this Court does consider it, it is of no relevance. While defendants seem to concede that plaintiffs possessed significant artistic freedom, they argue that this freedom "was emblematic of [plaintiffs'] employment as professional artists." Id. The record does not support defendants' contention in this regard, however. Defendants apparently believe that every time one hires a professional artist, one must necessarily direct that artist to "create" and nothing more. This view is wholly without merit. One can easily postulate a situation in which a person or entity employs a professional artist for a specific chore and makes as a condition of employment compliance with certain artistic directions, i.e. to sculpt a five-foot tall rendition of corporate headquarters from marble, the same material from which the real headquarters building was constructed. This was not the case here.
In the instant case, I find that plaintiffs had unfettered artistic freedom to create the Work and that the hiring party did not have the right to control the manner and means of creation. I further find that, on the facts of this case, plaintiffs' artistic freedom strongly supports plaintiffs' contention that they were independent contractors rather than employees of Sig or the Limited Partnership.
b. The Level of Skill
The level of skill necessary to create the Work is highly relevant to the consideration of whether or not plaintiffs were employees or independent contractors. Plaintiffs are artists and sculptors, which, as numerous courts have recognized, are highly skilled occupations. See, e.g., Reid, 490 U.S. at 752, 109 S.Ct. at 2179. The parties to this action have stipulated that "[p]rofessional sculpting is a highly skilled occupation" (UF 4), and that each plaintiff is a professional sculptor (UF 1-3).
Defendants contend, however, that the creation of certain elements of the Work would not have required great artistic skill. Further, defendants argue that because plaintiffs delegated certain tiling work to others (UF 63), plaintiffs cannot be said to have required great skill to create the mosaic. I find these contentions to be without merit.
As discussed above, the Work is a single work of art. Plaintiffs conceived the design, created the art work, and executed the construction thereof. This entire process clearly required great skill. The use of paid and unpaid assistants working at plaintiffs' behest and under their direct supervision does not in any way demonstrate that plaintiffs did not require skill to create the Work.
I find that a high degree of skill was required to create the Work. I further find that this factor strongly supports plaintiffs' contention that they were independent contractors rather than employees.
c. The Provision of Benefits to, and the Tax Treatment of, the Hired Parties
It is undisputed that Sig and/or the Limited Partnership provided health and insurance benefits to plaintiffs through December 31, 1993. (HTr. 290-92, 295; UF 39-44; *319 DExh. B). Thereafter, plaintiffs continued to work on the Work without the provision of such benefits. (HTr., at 290-92; UF 45). It is also undisputed that in 1991, 1992, and 1993 plaintiffs received W-2 forms from either Sig or the Limited Partnership (UF 38), and that taxes were withheld from payments made to plaintiffs during this period (UF 33).
The provision of benefits to, and the tax treatment of, plaintiffs in this case supports defendants' contention that plaintiffs were employees. This factor is not determinative, however, especially in light of the fact that plaintiffs continued to work on the Work once the provision of benefits had ceased.
d. The Right To Assign Additional Projects
"[I]ndependent contractors are typically hired only for particular projects." Aymes, 980 F.2d at 863. Hence, when a hired party is hired to participate in numerous unspecified chores at the hiring party's discretion the hired party is likely to be an employee; conversely, when a hired party is hired to complete or achieve a specific task, it is more likely that the hired party is an independent contractor. In the instant case, the record supports plaintiffs' contention that plaintiffs were hired to complete a specific task, namely installing art on the Property.
As an initial matter, the Contract provides that plaintiffs were hired "to design, create and install sculpture and other permanent installations (`the Sculptures') in The Factory[8] and to render such other related services and duties as may be assigned to you from time to time...." (DExh. NN) (emphasis added). Defendants do not contest that plaintiffs' sole responsibility was to install art work; instead they point to art work created by plaintiffs on the Property in places other than the Lobby and argue that these installations constitute projects separate from that undertaken by plaintiffs in the Lobby. While defendants' contention in this regard is true plaintiffs did create art work on the Property other than that in the Lobby it clearly does not undermine plaintiffs' contention that they were hired solely to install art work on the Property, nor does it show that plaintiffs were employees.
Moreover, the record suggests that neither plaintiffs, Sig, nor the Limited Partnership viewed plaintiffs as employees who could be directed to complete tasks other than the installation of art work on the Property. For example, testimony adduced at trial showed that, on at least one occasion, plaintiffs were directed to complete a chore in another building. (TTr., at 347-48). Although plaintiffs refused to undertake this chore, they were not terminated, their pay was not docked, and they were not otherwise penalized for this failure to undertake another unrelated project. (TTr., at 347-48). In addition, while it is undisputed that one of the plaintiffs was a licensed structural steel welder during the relevant period of time, there is no evidence that he was ever asked to employ his welding skills to complete a project other than the art work.
Thus, I find that Sig, Corporate Life, and the Limited Partnership did not have the authority to direct plaintiffs to perform tasks other than the one they were hired to complete the installation of art work on the Property. This factor weighs in favor of a finding that plaintiffs were independent contractors.
2. Other Reid Factors
Having examined the factors emphasized by the Second Circuit in Aymes, this Court must now consider the remaining Reid factors: (1) the source of the instrumentalities and tools; (2) the location of the work; (3) the duration of the relationship between the parties; (4) the extent of the hired party's discretion over when and how long to work; (5) the method of payment; (6) the hired party's role in hiring and paying assistants; (7) whether the work is part of the regular business of the hiring party; and (8) whether the hiring party is in business. The Court will examine each of these factors, and the relevance of each to this case, in turn.
The source of instrumentalities and tools is wholly inconclusive in the instant case. On *320 the other hand, Sig and/or the Limited Partnership provided plaintiffs with certain tools and raw materials. (UF 53-56). On the other hand, plaintiffs also used their own tools in creating the Work, incorporated many "found" objects in the Work, and incorporated thousands of dollars worth of raw material into the Work for which they did not seek or receive reimbursement. (UF 52, 54, 57; HTr., at 458). Because I find that plaintiffs, Sig, and the Limited Partnership all provided the instrumentalities and tools used to create the Work, this factor is inconclusive in this case.
The location of the work also is not helpful consideration in the instant case. While it appears from the record that some of the work occurred off the Property, the nature of the work that plaintiffs did required the majority to be done on site. Regardless of whether plaintiffs were independent contractors or employees, this work would have had to be done at the Property. Accordingly, the location of the work does not illuminate plaintiffs' status.
The duration of the relationship between plaintiffs on the one hand, and Sig and the Limited Partnership, on the other, strongly supports plaintiffs' contention that they were not employees of these entities. As this Court previously noted, plaintiffs "were not prior employees of [Sig or the Limited Partnership], nor would they be employed by [these entities] upon completion of the Work." Carter, 852 F.Supp. at 234. Defendants have failed to offer any evidence showing that plaintiffs would, in fact, have been retained by the hiring party following the completion of the Work. This finite term of engagement, i.e. engagement defined temporally in terms of the duration of a single project, is characteristic of a principal-independent contractor relationship.
The extent of the hired party's discretion over when and how long to work likewise weighs in favor of plaintiffs' contention that they were hired as independent contractors to create the Work. Plaintiffs "were required `to work approximately forty (40) hours per week' at the Property." (UF 23). From the record, however, this number seems to have had little meaning in this case. At the preliminary injunction hearing, plaintiffs proved that they had unrestricted 24-hour access to the Property, and often worked far in excess of the minimum number of hours contractually required of them. (UF 45-46; HTr. 21, 34, 85). When plaintiffs worked in excess of forty hours, their pay was not increased; when they worked less than forty hours, it was not diminished. (UF 45). Moreover, plaintiffs had no set hours and could and did work on the Work at times of their own choosing.
The method of payment, weekly a checks in the amount of $1,000 to each of plaintiffs, is characteristic of an employer-employee relationship. Plaintiffs argue, however, that this sum in fact represents a lump sum payment apportioned over time. While plaintiffs' contention has some merit in light of the testimony and evidence in the record regarding how this method of payment was arrived at (HTr., at 459-60, 462, 469; UF 20), on the whole the record does not demonstrate that the weekly payments were intended as a lump sum payment apportioned over time. This contention is undermined by (1) the fact that the completion date for the Work was unspecified, and (2) plaintiffs' failure to prove that these payments were made toward a sum certain agreed to by the hiring and hired party in advance. On the record before the Court, then, this method of payment tends to support defendants' contention that plaintiffs were employees.
The hired party's role in hiring and paying assistants is not a helpful consideration in this case. Plaintiffs had complete discretion to retain unpaid assistants. Moreover, plaintiffs were responsible for selecting all assistants paid and unpaid whose only role was to assist plaintiffs. (UF 58). Thus, plaintiffs also had significant discretion with regard to the employment of paid assistants. Plaintiffs could not hire paid assistants, though, without the approval of Sig or the Limited Partnership (UF 59), and these paid assistants were paid directly by Sig or the Limited Partnership (UF 60; TTr., at 594). Finally, Mr. Veronis was responsible for overseeing *321 both paid and unpaid assistants that worked exclusively for plaintiffs. (TTr., at 595).
This factor is indeterminate because this factual scenario could be characteristic of a situation involving either employees or independent contractors. Plaintiffs' discretion to employ unpaid assistants, and their control over the selection of their paid assistants, is characteristic of an independent contractor retaining assistants. The requirement that plaintiffs obtain the approval of Sig or the Limited Partnership to hire paid assistants, and the fact that these paid assistants were paid by Sig or the Limited Partnership, could be characteristic of an employer exercising control over the retention and remuneration of lower-level employees, or of a principal exercising control over expenses in order to prevent cost overruns in connection with a project undertaken by an independent contractor. Plaintiffs' supervisory responsibility concerning their assistants is irrelevant to this Court's analysis, because this responsibility could attach either in the context of an independent contractor supervising assistants or an employee supervising lower-level employees. Thus, the hired party's role in hiring and paying assistants is wholly indeterminate in the instant case.
The final Reid factors that this Court must consider are whether the hiring party is in business and whether the Work is the type of work created in the regular course of the hiring party's business. The former factor "will always have very little weight in this analysis," Aymes, 980 F.2d at 863, and is not helpful in the instant case. With regard to whether creating the Work was part of the regular business of the hiring party, defendants strain to argue that it was, because prior to hiring plaintiffs, Mr. Cohen allegedly had attempted to use art to entice persons to become tenants of buildings that he owned or managed. See Defendants' Post-Trial Memorandum, at 28.[9] This contention is devoid of merit. "The purpose of this factor is to determine whether the hired party is performing tasks that directly relate to the objective of the hiring party's business." Aymes, 980 F.2d at 863. Even assuming that Mr. Cohen had used art to entice tenants in the past (UF 15), the evidence in the record does not support defendants' apparent belief that plaintiffs were performing tasks that were directly related to the hiring party's business. As in Reid where "[c]reating sculptures was hardly `regular business' for CCNV," 490 U.S. at 753, 109 S.Ct. at 2179, it is clear in the instant case that creating works of visual art was hardly "regular business" for either Sig or the Limited Partnership. Accordingly, this factor weighs in favor of a finding that plaintiffs were hired as independent contractors.
3. A Plus Factor: Ownership of Copyright
Generally when the Court is called upon to determine whether a hired party is an "employee" or an "independent contractor" under the Copyright Act, the purpose of that inquiry is to ascertain copyright ownership in a copyrightable work. If the Court determines that the hired party is an "employee," the copyright in the copyrightable work produced belongs to his or her employer. See 17 U.S.C. § 201(b). Conversely, if the Court finds that the hired party is an "independent contractor," the copyright belongs to the hired party.
The operative theory incorporated in the Copyright Act is that, when a party hires an employee to create a copyrightable work, the fruits of the employee's endeavors properly belong to the employer. The employer's mandate to the employee, and the scope of the employee's employment, contemplate the creation of copyrightable material for the employer's benefit.
Under VARA, however, the "work made for hire" analysis is undertaken for a different purpose: The hired party's employment status is analyzed to ascertain whether a work created by that party may be considered a "work of visual art." As such, it is logical to consider copyright ownership when the "work made for hire" analysis is necessary in an action seeking protection of a *322 work of art under VARA. Among other things, this analysis, if helpful in a given case, can assist the Court in ascertaining how the interested parties viewed their own relationship.
As already discussed, the Contract provides that plaintiffs "shall retain copyrights" to the Work. (DExh. NN). I find that this factor is relevant to an analysis of plaintiffs' status in this case and that it supports a finding that plaintiffs were independent contractors rather than employees.
4. Conclusion: The Work is Not a "Work Made For Hire"
The factors that are significant in the instant case are: (1) the hiring party's right to control the manner and means of creation; (2) the skill required; (3) the provision of employee benefits to, and the tax treatment of, the hired party; (4) whether the hiring party had the right to assign additional projects to the hired party; (5) the duration of the relationship between the parties; (6) the extent of the hired party's discretion over when and how long to work; (7) the method of payment; and (8) whether creating the Work was part of the regular business of the hiring party. In addition, another factor, ownership of copyright, also is significant in this case. Other factors enumerated in Reid are indeterminate and irrelevant on the facts of this case: (1) the source of the instrumentalities and tools; (2) the location of the work; (3) the hired party's role in hiring and paying assistants; and (4) whether the hiring party is in business.
The tax treatment of plaintiffs and the method of payment support defendants' contention that plaintiffs were employees at the time the Work was created. The provision of benefits to plaintiffs also supports defendants' contention in this regard, but this factor's weight is diminished by the fact that both the hiring party and the hired parties appear not to have considered this a material condition of their business relationship: The Limited Partnership ultimately discontinued this practice and plaintiffs neither objected nor ceased construction of the Work.
I find that these factors are greatly outweighed by the remaining factors that are relevant in this case. Plaintiffs had autonomy to control the manner and means of creation, were skilled artisans who employed their considerable skill in creating the Work, were not subject to assignment of projects unrelated to that which they were hired to accomplish, had no prior relationship with the hiring party and would work for the hiring party only until the completion of the project, had significant discretion to determine when and how long to work, and the creation of works of art was not part of the hiring party's regular business nor a pursuit necessary to the accomplishment of the hiring party's business objectives.
On this basis alone, this Court must find that plaintiffs were independent contractors rather than employees. This finding is bolstered by a plus factor: Plaintiffs own the copyright to the Work. This indicates that the hiring and hired parties considered plaintiffs to be independent contractors. Accordingly, I find that plaintiffs were not employees at the time the Work was created and that the Work is not a "work made for hire" as that term is defined in the Copyright Act.
iv. A "Work of Visual Art"
As already discussed, VARA defines a "work of visual art" as:
a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author.
17 U.S.C. § 101. Plaintiffs have demonstrated that the Work is a single sculpture that incorporates elements drawn from other media. There is only one copy of this sculpture, which is located in the Lobby. The Work is not a "work made for hire" or "applied art," and is otherwise copyrightable. The Work was created and installed after the effective date of VARA. Accordingly, because it fits the definition of a "work of visual art" enunciated *323 in 17 U.S.C. § 101, the Work is entitled to treatment under VARA as a work of visual art.
B. 17 U.S.C. § 106A(a)(3)(A): Prejudice to Plaintiffs' Honor or Reputation
Having found the Work to be a work of visual art, the Court must consider whether "intentional distortion, mutilation, or modification" of the Work would be "prejudicial to [plaintiffs'] honor or reputation." 17 U.S.C. § 106A(a)(3)(A). VARA, however, does not define the terms "prejudicial," "honor," or "reputation." Thus, the Court must construe these terms.
"It is axiomatic that `the starting point in every case involving construction of a statute is the language itself.'" Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S.Ct. 2297, 2301, 85 L.Ed.2d 692 (1985) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring)); see also Samuels, Kramer & Co. v. Commissioner, 930 F.2d 975, 979 (2d Cir.) (same), cert. denied, ___ U.S. ___, 112 S.Ct. 416, 116 L.Ed.2d 436 (1991). "The plain meaning of the statute's language should control except in the `rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.'" Samuels, Kramer & Co., 930 F.2d at 979 (quoting Griffen v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). "In such cases it is the intention of the legislators, rather than the strict language, that controls." Id. Finally, "`in expounding a statute, [courts] must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.'" Id. (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 107 S.Ct. 1549, 1555, 95 L.Ed.2d 39 (1987)).
Applying these principles to VARA, it is apparent that the terms "prejudicial," "honor," and "reputation" have readily understood meanings. "Prejudice" is commonly understood to mean "injury or damage due to some judgment of another." Webster's Third New International Dictionary (unabridged) 1788 (1971). "Honor" is commonly understood to mean "good name or public esteem." Id. at 1087. "Reputation" is commonly understood to mean "the condition of being regarded as worthy or meritorious." Id. at 1929. Use of these definitions will not cause a result that runs contrary to VARA's purpose. Therefore, this Court is convinced that these definitions were intended by VARA's drafters to be applied in interpreting the statute.
Thus, in determining whether "intentional distortion, mutilation, or modification" of the Work would be "prejudicial to [plaintiffs'] honor or reputation," this Court will consider whether such alteration would cause injury or damage to plaintiffs' good name, public esteem, or reputation in the artistic community. Of course, the above-quoted definition of "reputation" does not require that the artists' reputation be derived independently of the art work that is the subject of this dispute. See H.R.Rep. No. 101-514, 101st Cong., 2d Sess. 15, reprinted in, 1990 U.S.C.C.A.N. at 6925 ("[A]n author need not prove a pre-existing standing in the artistic community. The Committee appreciates that less well-known or appreciated artists also have honor and reputations worthy of protection."). Moreover, the legislative history of VARA suggests an analytical framework within which to ascertain whether a given action may be prejudicial to artists' honor or reputation: "The Committee believes that the best approach to construing the term `honor or reputation' ... is to focus on the artistic or professional honor or reputation of the individual as embodied in the work that is protected.... The formulation for determining whether harm to honor or reputation exists must of necessity be flexible." Id. at 6925.
The purpose of 17 U.S.C. § 106A(a)(3)(A) is to protect artists' integrity by forbidding alteration of works of visual art if such alteration would be prejudicial to the artists' honor or reputation. Testimony adduced at trial supports plaintiffs' contention that their honor and reputation would be damaged if the Work is distorted, modified, or mutilated. Professor Robert Rosenblum, a professor of art history at New York University, an art critic, and the author of numerous *324 books on art and art history testified as an expert witness that plaintiffs' reputation would be damaged if the Work is distorted. (HTr., at 106-07). I found Professor Rosenblum to be a well-qualified and credible witness. In addition, Jack S. Shainman, president and director of an art gallery specializing in contemporary art, also testified that mutilation of the Work would damage plaintiffs' honor or reputation. (TTr., at 207-08). I found Mr. Shainman to be experienced in the field of contemporary art and to be a credible witness. Similarly, Professor Darroll testified that plaintiffs' honor and reputation in the artistic community would be damaged if the Work is modified because the Work would then present to viewers an artistic vision materially different from that intended by plaintiffs. (TTr., at 185-87). I credit this testimony.
Defendants called Hilton Kramer to testify regarding, inter alia, plaintiffs' reputation and the quality of the Work. Mr. Kramer is currently employed as an editor of a monthly magazine that reviews art called "The New Criterion," and in the past has been employed by The New York Times as an art news editor and art critic. (TTr., at 289). Mr. Kramer's credentials as an art critic are well established. (TTr., at 324).
Mr. Kramer did not testify as to whether plaintiffs' honor or reputation would be damaged if the Work is distorted, modified, or mutilated. Rather, Mr. Kramer testified concerning the potential impact of removing the Work. (TTr., at 297). It is evident from the totality of Mr. Kramer's testimony, however, that he believes that alteration of the Work would not adversely impact plaintiffs' reputation because, in his opinion, the artists have no reputation. (TTr., at 297). Mr. Kramer bases his opinion to this effect on his belief that "[t]here is no literature to support the reputation or no literature of any significance." (TTr., at 297).
Weighing Mr. Kramer's opinion in this regard against that the other testimony on point, this Court finds more persuasive and more probative the testimony of Professor Rosenblum, Professor Darroll, and Mr. Shainman. Thus, I will accord this testimony greater weight on this point. While Professor Rosenblum, Professor Darroll, and Mr. Shainman are experts actively involved with contemporary art and in the contemporary artistic community, it appears from the record that Mr. Kramer's expertise is myopic. (TTr., at 321-22; see also infra note 13 and accompanying text). In addition, Mr. Kramer's criterion for determining whether plaintiffs' reputation would be harmed that he is unaware of any "literature of any significance" concerning their work encompasses only one factor that the Court must consider. In Mr. Kramer's opinion, no artist has a reputation in the art world unless Mr. Kramer is familiar with writings about that artist. I find this to be an unpersuasive basis for determining whether alteration of the Work would adversely affect plaintiffs' honor or reputation.
I find that plaintiffs indeed possess honor and reputations worthy of protection. While plaintiffs' collective reputation as the Three Js has been generated primarily in connection with the Work, each plaintiff also has preexisting honor and reputation as an artist in his own right. Finally, I credit Professor Rosenblum's, Professor Darroll's, and Mr. Shainman's testimony, based on their expertise in the area of contemporary art, that plaintiffs' reputations would be damaged by "intentional distortion, mutilation, or modification" of the Work.
C. 17 U.S.C. § 106A(a)(3)(B): Recognized Stature
17 U.S.C. § 106A(a)(3)(B) provides that the author of a work of visual art shall have the right "to prevent any destruction of a work of recognized stature." This provision is preservative in nature: Congress was concerned that the destruction of works of art represented a significant societal loss. See H.R.Rep. No. 101-514, 101st Cong., 2d Sess. 16, reprinted in, 1990 U.S.C.C.A.N. at 6926; see also Edward J. Damich, The Visual Artists Rights Act of 1990: Toward A Federal System of Moral Rights Protection For Visual Art, 39 Cath.U.L.Rev. 945, 955 (1990) [hereinafter "Damich"].
The phrase "recognized stature" is not defined in VARA. In light of the *325 preservative goal of this Section, however, the recognized stature requirement is best viewed as a gate-keeping mechanism protection is afforded only to those works of art that art experts, the art community, or society in general views as possessing stature. A plaintiff need not demonstrate that his or her art work is equal in stature to that created by artists such as Picasso, Chagall, or Giacometti. As one commentator has noted, "The advantages of the `of recognized stature' qualification include barring nuisance law suits, such as [a law suit over] the destruction of a five-year-old's fingerpainting by her class mate...." Damich, at 954; see Ginsburg, at 480 n. 19. Nor must the trier of fact personally find the art to be aesthetically pleasing; indeed, courts have persistently shunned the role of art critic. See, e.g., Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-53, 23 S.Ct. 298, 300-01, 47 L.Ed. 460 (1903).
The recognized stature requirement must be interpreted in such a manner as to maintain the preservative purpose of 17 U.S.C. § 106A(a)(3)(B) and in light of this Section's plain meaning. Thus, for a work of visual art to be protected under this Section, a plaintiff must make a two-tiered showing: (1) that the visual art in question has "stature," i.e. is viewed as meritorious, and (2) that this stature is "recognized" by art experts, other members of the artistic community, or by some cross-section of society. In making this showing, plaintiffs generally, but not inevitably, will need to call expert witnesses to testify before the trier of fact.[10] Finally, in order to be entitled to injunctive relief, a plaintiff must show that the defendant has commenced destruction of, or intends to destroy, the subject art work.[11]
Consideration of the testimony of the expert witnesses who testified at trial leads to the conclusion that the Work is a work of recognized stature.[12] For example, Professor Rosenblum testified that "this was [a] coherent ongoing program" and that he wants "everybody to go and see it." (HTr., at 102). Further, Professor Rosenblum testified that the sculpture is "a work of art like almost nothing I've ever seen before" (HTr., at 104), and that "the one thing that I know absolutely is that this is an incredible phenomenon and I want to see it again and learn more about it. And I am sure there are countless other people who would feel like me if they saw it" (HTr., at 106). I credit this testimony.
Furthermore, Kent Barwick, president of the Municipal Art Society of New York ("the Society"), and a former chairman of the New York City Landmarks Preservation Commission, was called by plaintiffs to testify as an expert witness. Mr. Barwick testified that the Society sponsors tours of "noteworthy *326 works of art or architecture in the City of New York." (HTr., at 111). Mr. Barwick testified that, to this end, the Society organized a tour of the Work in February 1994. (HTr., at 111). Mr. Barwick stated that those who had gone on the February tour were "very, very excited" about the Work, and that they were anxious to have the tour of the Work made a permanent part of the Society's tour schedule. (HTr., at 111). Finally, Mr. Barwick testified that the Work constituted one of the great spaces located in New York (HTr., at 115) and that "it's very much in the public interest of the City of New York if it's at all possible to see this piece maintained and, if possible, finished" (HTr., at 117-18). I found Mr. Barwick to be a credible witness, and I credit this testimony.
Plaintiffs also called Professor Darroll as an expert witness to testify concerning the stature of the Work. As already noted, Professor Darroll teaches two- and three-dimensional design, and is an expert in visual art, including sculpture. Professor Darroll testified that he was "very exhilarated" by the Work, and that "[t]he imagination of the [W]ork is tremendous. It's overall a very exciting piece." (TTr., at 183). Professor Darroll then enumerated the standards that he uses to judge whether a given work is a work of stature. (TTr., at 189-90). Applying these standards to the Work, Professor Darroll opined that the Work has stature. (TTr., at 191). I found Professor Darroll to be well-qualified and credible, and I credit his opinion in this regard.
Defendants called Mr. Kramer, who testified as an expert witness that, in his opinion, the Work is not a work of recognized stature. (TTr., at 292-93). Mr. Kramer clearly does not like the Work, and during his direct testimony deemed it "a pastiche of recognized cliches." (TTr., at 298). Mr. Kramer further stated that "It is a work so lacking in merit that I believe that it serves no useful purpose to retain it." (TTr., at 300). As noted above, this Court qualified Mr. Kramer as an expert witness but finds that his opinion is so colored by his disdain for contemporary art in general as to be of little probative value.[13] Thus, I found Mr. Kramer's testimony in this regard to be unpersuasive and unconvincing and found the testimony of Professor Rosenblum, Professor Darroll, and Mr. Barwick both persuasive and probative.
On the record before the Court, I find that the Work is a work of recognized stature. Accordingly, the Work is entitled to protection under 17 U.S.C. § 106A(a)(3)(B).
D. Defendants' Constitutional Arguments
Defendants contend that if VARA is interpreted so as to protect the Work, VARA is unconstitutional. Defendants argue that VARA "violates the Fifth Amendment by giving a third party the right to control the use of Associates's property." Defendants' Post-Trial Memorandum of Law, at 61.[14] Defendants face a heavy burden in making this argument. See, e.g., Federal Election Comm'n v. Political Contributions Data, Inc., 943 F.2d 190, 191 (2d Cir.1991) ("congress is presumed to have passed statutes *327 which are constitutional"). For the reasons discussed below, defendants' constitutional arguments are both legally and factually without merit.
In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922), the Supreme Court enunciated the foundation of modern takings jurisprudence, writing that "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." In the ensuing decades the Supreme Court has repeatedly revisited the issues presented in Pennsylvania Coal in order to determine when regulation "goes too far." See, e.g., Raymond R. Coletta, Reciprocity of Advantage and Regulatory Takings: Toward a New Theory of Takings Jurisprudence, 40 Am.U.L.Rev. 297 (1990) (collecting cases) [hereinafter "Coletta"]. Although no single test has been enunciated to ascertain whether a given law or regulation constitutes an impermissible taking absent compensation, the jurisprudence that has developed in this area sets the parameters of the inquiry and gives the Court significant guidance in the instant case.
In Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), the Supreme Court reviewed a regulatory scheme that bears relevant similarities to VARA. The regulation at issue in Penn Central was the New York City Landmarks Preservation Law ("Landmarks Law"), enacted by New York City to protect its "historic landmarks and neighborhoods from precipitate decisions to destroy or fundamentally alter their character." 438 U.S. at 109, 98 S.Ct. at 2651. The Landmarks Law enacted a comprehensive scheme whereby an eleven-member agency identified properties that had special character, or were of historic or aesthetic interest, designated those properties as "landmarks" and, once such designations were made, submitted these designations to the City Board of Estimate for approval, modification, or disapproval. Id. at 110-11, 98 S.Ct. at 2652-53. Following the Board of Estimate's decision on the status of a given property, the owner of a "landmarked" property could seek judicial review of the Board's decision. Id. Pursuant to the Landmarks Law, Grand Central Terminal ("the Terminal") was designated as a landmark, and material alteration of the Terminal was forbidden. As a result, the owner of the Terminal was prohibited from building an office tower above it. In Penn Central, the Supreme Court considered whether the Landmarks Law thus effected an impermissible taking.
In reaching its decision that the Landmarks Law did not effect an impermissible taking, the Court found that several factors militated against a finding that a taking had occurred: The Landmarks Law (1) implemented a comprehensive scheme designed to further the public interest; (2) did not specifically or disproportionately burden plaintiff; (3) left much of the commercial value of the property intact and did not interfere with plaintiff's primary economic use of the property; and (4) included some reciprocity of benefits. See id. at 133-35, 98 S.Ct. at 2664-65. As to this last point, reciprocity of benefits, the Court found it sufficient that the building owner was advantaged as a member of society; the benefit conferred did not necessarily need to flow directly to it in its capacity as a building owner. Id. at 134-35, 98 S.Ct. at 2664-65; see also Coletta, at 328-31, 335-39 (discussing reciprocity of benefits analysis). Finally, the Court emphasized that not every law which affects a property owner's right to control his property is a taking because "`[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.'" 438 U.S. at 124, 98 S.Ct. at 2659 (quoting Pennsylvania Coal, 260 U.S. at 413, 43 S.Ct. at 159).
Like the regulation at issue in Penn Central, VARA may be viewed as impacting the use of land under certain circumstances. There are two major differences between the Landmarks Law and VARA, however, which underscore why VARA is not constitutionally impermissible. First, VARA applies only to those protected works that are installed after the effective date of the statute. This in and of itself undermines defendants' argument that VARA effects an unconstitutional taking. Second, any impact that VARA might *328 have on defendants' property is temporary: VARA protection subsists only for the life of the last surviving author of a covered work.
Even ignoring these factors, VARA does not effect an impermissible taking. VARA creates a comprehensive scheme, duly enacted by Congress, to protect and ensure the preservation of certain types of art work so as to advance the public interest and protect artists' moral rights. VARA is specifically designed to further the public interest.
Moreover, VARA does not disproportionately or unfairly target or burden defendants or the class to which defendants belong. VARA applies only to works installed after the effective date of the statute and permits those seeking to install VARA-covered art work to contractually waive VARA protection.
Furthermore, VARA facially does not diminish property value: It merely provides that once a decision is made to permit the installation of a work of visual art covered by VARA, the art work must remain for the life of the last surviving artist unless the artist or artists waive their VARA rights. On the facts of this case, it is clear that VARA leaves substantially all of the commercial value of the Property intact. It is apparent from the record that the Property can be, and regularly has been, leased to paying tenants. Thus, VARA does not deprive defendants of the primary commercial use of the Property.
VARA also yields reciprocal benefits. Artists benefit by having their work preserved and viewed in the form in which it was created. The public benefits through the preservation of those cultural resources that VARA protects. Building owners benefit both as members of society and, in the long run, by societal interest in the art that is located in their buildings. Indeed, it seems that the preservation of VARA-protected art work will in certain circumstances make owners' properties more, rather than less, commercially viable by generating public interest in those properties.
Defendants argue, however, that as applied here, VARA permits a third party, the net lessee, to permanently occupy defendants' building. In making this argument, defendants rely on Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), in which the Supreme Court held that "a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve." 458 U.S. at 426, 102 S.Ct. at 3171. In reaching this decision, the majority focused on that fact that the statute at issue deprived building owners of a traditional property right, the right to exclude unwanted persons from its property. The Court stated that
The permanence and absolute exclusivity of a physical occupation distinguish it from temporary limitations on the right to exclude. Not every physical invasion is a taking. As PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), and the intermittent flooding cases reveal, such temporary limitations are subject to a much more complex balancing process to determine whether they are a taking. The rationale is evident: they do not absolutely dispossess the owner of his rights to use, and exclude others from, his property.
Id. at 435 n. 12, 102 S.Ct. at 3175 n. 12 (emphasis in original).
VARA neither facially nor as applied here permits the "permanent physical occupation" of property. As discussed above, VARA rights subsist for a limited period of time and are by no means permanent. Moreover, VARA does not authorize even a physical invasion: it merely protects certain art installed after the effective date of the statute.
Finally, defendants' contention that as applied to the facts of this case VARA permits a "permanent physical occupation" by authorizing the net lessee to control the use of defendants' land, is without merit. As a factual matter, it appears from the record that defendants' agents were aware that the Work was being installed and did not object. (UF 28; PExh. 41; TTr., at 224-26). The Work is easily noticeable and could not have been overlooked by anyone visiting the Property. Thus, the estoppel certificates issued *329 by Associates (PExh. 41) are particularly relevant because they support a finding that the net lessee had either actual or ratified authority to install the Work. In any event, to the extent that defendants believe that the former net lessee's actions were impermissible, they must seek redress against the former net lessee for any damages defendants claim to have sustained. This contention alone does not make VARA constitutionally impermissible.
In sum, defendants' constitutional arguments are without merit.
E. The Scope of VARA Protection and Relief in the Instant Case
Plaintiffs have demonstrated that the Work is a single work of visual art, and that the "distortion, mutilation, or other modification" of the Work would be prejudicial to plaintiffs' honor and reputation. Furthermore, plaintiffs have shown that the Work is a work of recognized stature. Finally, plaintiffs have demonstrated that absent injunctive relief, defendants intend to distort, mutilate, modify, and destroy the Work. (See, e.g. Carter v. Helmsley-Spear, Inc., 94 Civ. 2922 (DNE) (May 31, 1994 Hearing Transcript), at 16; TTr., at 99, 149-51, 229-32, 312).
i. Injunctive Relief
17 U.S.C. § 502(a) provides that "[a]ny court having jurisdiction of a civil action arising under [the Copyright Act] may ... grant temporary or final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." As amended, 17 U.S.C. § 501(a) includes violations of an author's rights under 17 U.S.C. § 106A(a) as actions infringing a copyright. In addition, the Court is vested with broad equitable powers to issue an injunction when the need for this remedy is established, see, e.g., SEC v. Posner, 16 F.3d 520, 521-22 (1994), and "`has a wide range of discretion in framing an injunction in terms it deems reasonable to prevent wrongful conduct,'" Etuk v. Slattery, 936 F.2d 1433, 1443 (2d Cir.1991) (quoting Springs Mills, Inc. v. Ultracashmere House, Ltd., 724 F.2d 352, 355 (2d Cir.1983)); see Soltex Polymer Corp. v. Fortex Indus. Inc., 832 F.2d 1325, 1329 (2d Cir.1987). Of course, this discretion must be exercised soundly in light of the relevant facts adduced at trial.
Plaintiffs are entitled to an injunction prohibiting defendants from distorting, mutilating, or modifying the Work. In addition, plaintiffs have shown that removing the Work would necessarily result in its distortion, mutilation, or modification because certain elements of the Work cannot be removed without being destroyed.
Further, plaintiffs are entitled to an injunction prohibiting defendants from destroying the Work. Because elements of the Work must be destroyed in order to be removed, the Work may not be removed from the Lobby.
Like Howard Roark in Ayn Rand's Fountainhead, plaintiffs wish to continue creating the Work regardless of the barriers to completion that are presented. Plaintiffs have not shown, however, that VARA gives them the right to complete, or engage in further work on, the Work. VARA mandates preservation of protected art work and the protection of artists' moral rights. It does not mandate creation. Nothing in the statute compels defendants to allow plaintiffs to engage in further creation. Contrary to plaintiffs' assertion, defendants' refusal to permit plaintiffs to "finish" the Work does not constitute "distortion, mutilation, or other modification" under 17 U.S.C. 106A(a)(3)(A).
ii. Damages, Costs, and Attorney's Fees
1. Damages
17 U.S.C. § 501(a) provides that any person or entity that violates 17 U.S.C. § 106A(a) is an "infringer" of the "right of the author." In order to bring an action to recover damages for a violation of the rights conferred by 17 U.S.C. § 106A(a), the author of the relevant work of visual art need not have registered that work with the Register of Copyrights. 17 U.S.C. §§ 411 & 412. When an infringement of the author's moral rights has been shown, the author may recover, inter alia, either actual damages, 17 *330 U.S.C. § 504(a) & (b), or at his or her election, statutory damages, 17 U.S.C. § 504(a) & (c).
Plaintiffs have demonstrated that defendants intend to violate their VARA rights. Accordingly, as already discussed, plaintiffs are entitled to prospective injunctive relief. Plaintiffs have not shown, however, that defendants have violated their VARA rights to date.
This Court heard testimony that certain sculptural elements have been temporarily altered or rendered inoperable by defendants and/or defendants' agents. (See, e.g., TTr., at 99, 149-51). These alterations were quickly remedied. (TTr., at 177). While these temporary alterations coupled with other evidence in the record support a finding that defendants intend, in the absence of injunctive relief, to violate plaintiffs' VARA rights, these incidents in and of themselves do not constitute a violation of plaintiffs' rights under VARA. Plaintiffs failed to prove, among other things, that these brief alterations were prejudicial to their honor or reputation or that they have had the effect of destroying the Work. Thus, plaintiffs are not entitled to recover actual or statutory damages in connection with this claim.
2. Costs and Attorney's Fees
In the American system, parties to litigation generally must bear their own attorney's fees and litigation expenses. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247-57, 95 S.Ct. 1612, 1616-21, 44 L.Ed.2d 141 (1975); see also Alan Hirsch and Diane Sheehey, Awarding Attorney's Fees and Managing Fee Litigation 1-2 (1994). The Copyright Act modifies this rule, however, for actions brought under VARA and the Copyright Act, which VARA amends. 17 U.S.C. § 505 provides that "In any civil action under [the Copyright Act], the court in its discretion may allow the recovery of full costs by or against any party.... Except as otherwise provided in [the Copyright Act], the court may also award a reasonable attorney's fee to the prevailing party as part of the costs." The Court may award costs and attorney's fees to a prevailing party in an action alleging the violation of an author's rights under VARA even if the subject work has not been registered with the Register of Copyrights. 17 U.S.C. §§ 411 & 412.
In Fogerty v. Fantasy, Inc., ___ U.S. ___, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994), the Supreme Court reviewed this Section as it concerns the imposition of reasonable attorney's fees. The Fogerty Court held that "attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion. `There is no precise rule or formula for making these determinations,' but instead equitable discretion should be exercised `in light of the considerations we have identified.'" ___ U.S. at ___, 114 S.Ct. at 1033 (quoting Hensley v. Eckerhart, 461 U.S. 424, 436-37, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)). Among the factors that this Court may consider in exercising its discretion to award reasonable attorney's fees under this Section are: (1) the "`frivolousness'" of the action or defense, id., ___ U.S. at ___ n. 19, 114 S.Ct. at 1033 n. 19 (quoting Lieb v. Topstone Indus., Inc., 788 F.2d 151, 156 (3d Cir.1986)); (2) the "`motivation'" of the parties, id.; (3) "`objective unreasonableness (both in the factual and in the legal components of the case),'" id.; and "`the need in particular circumstances to advance considerations of compensation and deterrence,'" id.
Having weighed the relevant factors in the instant case, the Court finds that an award of costs and attorney's fees to plaintiffs would be inappropriate. The parties to this action vigorously contested each other's claims. In doing so, the parties were required to brief legal issues and engage in statutory interpretation without the guidance of direct precedent. This Court is the first district court in the country to interpret and apply the sections of VARA at issue here. On this basis alone it would be inappropriate to enter an award of costs and attorney's fees.
In addition, such an award is unnecessary to serve the interests of deterrence. The record demonstrates that defendants have complied with this Court's orders and have not violated plaintiffs' VARA rights to date. Should defendants violate this Court's orders *331 or plaintiffs' VARA rights in the future, this Court will not hesitate to order an appropriate monetary award, award costs and attorney's fees, or impose other appropriate sanctions.
In sum, I find that plaintiffs are not entitled to an award of costs and attorney's fees. Accordingly, plaintiffs' request for reimbursement of costs and attorney's fees in connection with their VARA claim is denied.
II. PLAINTIFFS' SECOND CLAIM FOR RELIEF: COPYRIGHT INFRINGEMENT
Plaintiffs allege that defendants have willfully infringed plaintiffs' copyright in the Work and seek statutory damages and an award of attorney's fees in connection with this alleged infringement. (JPTO, at ¶ 4(a)(2)). As an initial matter, it is clear from the record that the Work is copyrightable and that plaintiffs own the copyright in the Work. (DExh. NN; UF 26).[15] It is undisputed, however, that plaintiffs have never obtained, or sought to obtain, registration of this copyright. (UF 26). Accordingly, defendants argue that this Court is without jurisdiction to decide plaintiffs' copyright infringement claim and that this claim must be dismissed.
Registration is not a prerequisite to copyright protection under the Copyright Act. 17 U.S.C. § 408(a); see also Alan Latman, Robert A. Gorman, Jane C. Ginsburg, Copyright for the Nineties 390-92 (1989) (tracing the evolution of the registration requirement and other copyright formalities). Registration is, however, a prerequisite to a suit alleging the infringement of the copyright of works, such as the one at the center of this dispute, whose country of origin is the United States. See 17 U.S.C. § 411(a) ("[N]o action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with this title.").[16] Moreover, the remedies for infringement are limited if the copyrightable work is not registered: "[N]o award of statutory damages or of attorney's fees ... shall be made for ... any infringement of copyright in an unpublished work commenced before the effective date of its registration." 17 U.S.C. § 412.
Because proper registration is a prerequisite to an infringement suit, this Court is without jurisdiction to decide plaintiffs' claim that defendants have infringed their copyright in the Work. See, e.g., Wagstaff-El v. Carlton Press Co., 913 F.2d 56, 58 (2d Cir.1990) (stating that dismissal for failure to prove valid registration was proper), cert. denied, 499 U.S. 929, 111 S.Ct. 1332, 113 L.Ed.2d 263 (1991); Whimsicality, Inc. v. Rubie's Costume Co., 891 F.2d 452, 453 (2d Cir.1989) ("proper registration is a prerequisite to an action for infringement"); Conan Properties Inc. v. Mattel, Inc., 601 F.Supp. 1179, 1182 (S.D.N.Y.1984) (copyright infringement claim barred absent proof that copyright has been registered).[17] The cases cited by plaintiffs in support of their contention that this Court has jurisdiction to decide their infringement claim, see Plaintiffs' Post-Trial Memorandum, at 33 n. 28, are inapposite. Accordingly, plaintiffs' claim for copyright infringement, and for recovery of statutory *332 damages and attorney's fees in connection therewith, is dismissed.
III. PLAINTIFFS' THIRD CLAIM FOR RELIEF: TORTIOUS INTERFERENCE WITH CONTRACT
Plaintiffs allege that, by prohibiting plaintiffs from engaging in further work on the Work and by barring them from the Property, defendants tortiously interfered with a contract between plaintiffs on the one hand, and Sig or the Limited Partnership on the other. (JPTO, at ¶ 4(a)(3)). This claim, based on New York law, is brought pursuant to this Court's supplemental jurisdiction. See 28 U.S.C. § 1367(a).
In order to recover on a claim of tortious interference with contractual relations under New York law, plaintiffs must prove four elements: "(1) the existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to plaintiff." Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 595 N.Y.S.2d 931, 934, 612 N.E.2d 289, 292 (1993) (citing Israel v. Wood Dolson Co., 1 N.Y.2d 116, 120, 151 N.Y.S.2d 1, 134 N.E.2d 97 (1956)). The New York Court of Appeals has described this cause of action in the following manner:
The American Law Institute in the Restatement of the Law of Torts 2d, adopted May, 1977, has stated the fundamental principle: "One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract." (§ 766.) The keystone of the statement is the adverb "improperly" ... the definition of which is inconstant and mutable, drawing its substance from the circumstances of the particular situation at hand. Section 767 of the Restatement sets out several factors for consideration in determining whether an intentional interference with a contract is "improper", accompanied by the observation that "[the] issue in each case is whether the interference is improper or not under the circumstances; whether, upon a consideration of the relative significance of the factors involved, the conduct should be permitted without liability, despite its effect of harm to another. The decision therefore depends upon a judgment and choice of values in each situation" (Comment b).
Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 631-32, 406 N.E.2d 445, 447-49 (1980). The factors set out in Section 767, to which the Guard-Life court refers are:
(a) the nature of the actor's conduct, (b) the actor's motive, (c) the interests of the other with which the actor's conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor's conduct to the interference, and (g) the relations between the parties.
Restatement of the Law of Torts (second) § 767. For the reasons discussed below, I find that plaintiffs have failed to prove defendants' "intentional inducement of the third party to breach or otherwise render performance impossible." Kronos, Inc., 81 N.Y.2d 90, 595 N.Y.S.2d at 934, 612 N.E.2d at 934.
Defendants' conduct vis-a-vis the events alleged by plaintiffs must be examined in light of the state of mind, intent, and knowledge of defendants at the time the events that gave rise to this claim occurred. There is some evidence in the record that suggests defendants initially excluded plaintiffs from the Property after one of defendants' agents became angry when a gong that is incorporated in the Work rang in his close proximity. (TTr., at 118, 122-24, 171-75). It appears from the record, however, that this incident was brief in duration and was a minor factor in the exclusion of plaintiffs from the Property. The record as a whole supports defendants' contention that, at the time they denied plaintiffs access to the Property, they believed they were exercising their prerogative as owners of the *333 Property to exclude unwanted persons from the premises and to prevent the ongoing installation of art that they did not find aesthetically pleasing.
Plaintiffs have not demonstrated that the nature of defendants' conduct excluding unwanted persons from the Property and preventing further installation of art work was patently unreasonable at the time the conduct occurred. In addition, plaintiffs have not demonstrated that defendants' motives, or the interests that they sought to advance, were improper. While it appears that defendants' actions did have the effect of interfering with the fulfillment of the Contract, plaintiffs have failed to show that this was defendants' purpose in excluding plaintiffs.
Finally, any damage to plaintiffs as a result of defendants' actions was negligible since (1) plaintiffs have not demonstrated that they have the right to conduct further work on the Work, and (2) the entity with whom plaintiffs had contracted to create the Work entered bankruptcy proceedings a day after plaintiffs were excluded and could no longer pay them. While plaintiffs may well have been upset when they were barred from the Property (TTr., at 63-64), I do not credit plaintiffs' contention that they suffered damage in the form of mental anguish or emotional distress.
In sum, on the record before the Court, I find that plaintiffs have failed to prove that they are entitled to recover on their claim for tortious interference with contract, and this claim is therefore dismissed.
IV. PLAINTIFFS' FOURTH CLAIM FOR RELIEF: UNLAWFUL EJECTION FROM REAL PROPERTY
Plaintiffs' next supplemental state law claim seeks recovery for unlawful ejection from the Property. (JPTO, at ¶ 4(a)(4)). Plaintiffs aver that "[d]efendants have unlawfully ejected plaintiffs from property on which they were legally entitled to be present under the license granted them by Sig and/or the Limited Partnership." (JPTO, at ¶ 4(a)(4)) (emphasis added). Plaintiffs state that "There is no dispute that, as of April 7, 1994, plaintiffs were licensees entitled to be on the Property," Plaintiffs' Post-Trial Memorandum, at 36 (emphasis added), and argue that they are therefore entitled to recover damages pursuant to New York Real Property Actions and Proceedings Law Section 853 ("RPAPL § 853").[18] Defendants argue that, because plaintiffs were either employees[19] or mere licensees, plaintiffs cannot recover under RPAPL § 853. See Defendants' Post-Trial Memorandum of Law, at 87-88.
*334 RPAPL § 853 provides that
If a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrongdoer.
N.Y.Real Prop.Acts. and Proc. § 853 (McKinney 1994). One commentator has expressed the reach of this provision in the following manner:
RPAPL 853 and its predecessor, New York's forcible and detainer statute, were enacted to discourage undue intimidation and violence in the ejection of persons from real property by providing for treble damages under certain circumstances, but not to prohibit resort to summary ouster. The decision by the Court of appeals in Napier v. Spielmann, 1909, 196 N.Y. 575, 90 N.E. 1162, that a tenant or licensee acquired no possessory interest in property is still valid authority. While it is true that tenants as defined in RPAPL 711 may be evicted only through legal proceedings, others, such as licensees and squatters, who are covered by RPAPL 713, are not so protected. While RPAPL 713 permits a special proceeding as an additional means of effectuating removal of non-tenants, it does not replace an owner's common-law right to oust an interloper without legal process. P & A Bros., Inc. v. City of New York Dept. of Parks & Recreation, 1992, 184 A.D.2d 267, 585 N.Y.S.2d 335.
John J. Meehan, Supplemental Practice Commentary (1993) (emphasis in original), reprinted in, 49.5 McKinney's Real Prop. Acts. and Proc. (1994 Cumulative Annual Supp.), at 145. Under New York law, "[w]hile it is true that tenants ... may be evicted only through lawful procedure, others, such as licensees ... who are covered by RPAPL 713 are not so protected. Thus, RPAPL 713 merely permits a special proceeding as an additional means of effectuating the removal of nontenants, but it does not replace an owner's common-law right to oust an interloper without legal process." P & A Bros., Inc. v. New York Dep't of Parks & Recreation, 184 A.D.2d 267, 585 N.Y.S.2d 335, 336 (1992) (citations omitted); but see Friends of Yelverton, Inc. v. 163rd Street Improvement Council, Inc., 135 Misc.2d 275, 514 N.Y.S.2d 841, 843 (N.Y.City Civ.Ct.1986) (deeming defendant's action in evicting licensee without resort to summary proceedings improper on the facts presented). It has long been the rule in New York that a licensee, as opposed to a tenant or one having a greater interest in the use of particular real property, cannot maintain an action for wrongful ejection. See, e.g., Napier v. Spielmann, 127 A.D. 567, 111 N.Y.S. 983, 985-86 (App.Div.1908). RPAPL § 853 does not alter this fundamental rule.
Because plaintiffs concede that they were mere licensees in relation to the relevant areas, plaintiffs cannot recover for unlawful ejection from the Property. In addition, I note that even if plaintiffs were more than mere licensees to the relevant space, plaintiffs have not shown that defendants engaged in the type of wrongful conduct proscribed by RPAPL § 853. Accordingly, plaintiffs have failed to demonstrate that they are entitled to recover on their unlawful ejection claim, and this claim is therefore dismissed.
V. DEFENDANTS' COUNTERCLAIM: WASTE
In their counterclaim, defendants allege that "The creation of the [W]ork has resulted in violations of the Building and Fire Code of the City of New York, has materially changed the nature and character of the [Property], and has resulted in a diminution of the market value of the Property." (JPTO, at ¶ 4(b)). "Defendants' counterclaim alleges that plaintiffs have committed waste with respect to the Property," Defendants' Post-Trial Memorandum of Law, at 89, and is brought pursuant to this Court's supplemental jurisdiction.
An analysis of the doctrine of waste at common law, as reformulated in the Restatement of the Law of Property (second), and as interpreted and applied in New York, conclusively demonstrates that an action for waste can be brought exclusively by a landlord or property owner against a tenant. *335 The common law recognized three actionable types of waste in connection with real property: (1) voluntary waste, also known as affirmative waste, (2) permissive waste, and (3) ameliorative waste. Each of these varieties of waste arises in the context of a landlord-tenant relationship: either the tenant does something, or fails to do something that it is obligated to do, that fundamentally changes the nature of the property that reverts to the owner at the conclusion of the tenancy. As traditionally defined, voluntary waste occurs when a tenant intentionally or negligently damages the premises; permissive waste occurs when the tenant fails to prevent damage to the premises from the elements, such as by failing to replace a broken window that ultimately leads to water damage; and ameliorative waste occurs when a tenant alters a premises such that it is of changed character at the time it is returned to the owner.
Section 12.2 of the Restatement of the Law of Property (second) discusses and reformulates these concepts. Although the Restatement departs somewhat from the common law formulation of the different types of waste, it recognizes that an action in waste lies exclusively in the context of the landlord-tenant relationship: When the action or inaction of a tenant results in a "change in the physical condition of the leased property" an action in waste may lie. See Restatement of the Law of Property (second) § 12.2 & comment a.
The New York formulation of waste as applied in connection with real property is limited to matters presenting a landlord-tenant relationship. In Rumiche Corp. v. Eisenreich, 40 N.Y.2d 174, 386 N.Y.S.2d 208, 352 N.E.2d 125 (1976), the New York Court of Appeals discussed the common law cause of action for waste in connection with real property:
[A]t common law waste had three different definitions, each related to particular types of conduct on the part of tenants. Involuntary waste was defined as failure to prevent damage to the premises, in other words negligence. Equitable waste was defined as failure to do what a prudent owner would do and was available as a cause of action only in limited circumstances. ... [V]oluntary waste ... occurs when a tenant injures the premises by an affirmative act (see 5 Powell, Real Property, par. 640; 63 N.Y.Jur., Waste, § 2, p. 109, and cases cited therein).
* * * * * *
It is the impingement upon the ultimate estate of the landlord which is the keynote to the definition of waste (Rasch, New York Landlord and Tenant [2d ed.], § 455). Its application in a modern landlord-tenant setting is well described in Pross v. Excelsior Cleaning & Dyeing Co., 110 Misc. 195, 201, 179 N.Y.S. 176, 179: "[S]uch a change as to affect a vital and substantial portion of the premises, as would change its characteristic appearance, the fundamental purpose of the erection, or the uses contemplated, or a change of such a nature, as would affect the very realty itself extraordinary in scope and effect, or unusual in expenditure."
Rumiche Corp., 40 N.Y.2d 174, 386 N.Y.S.2d at 210-11 (footnote omitted). Thus, in order to recover on a claim of waste, the party seeking recovery must show at a minimum: (1) that a tenant has taken some action, or failed to take required action, id.; (2) that as a result of the tenant's action or failure to act the fundamental character of the property has been changed, id.; and (3) the action or inaction has caused "permanent or lasting damage.... [N]ot every change or alteration made by a tenant constitutes waste," id. at 211.
As to the first requisite showing, however, defendants contend that the party accused of waste need not be a tenant, but instead may be a third party. In support of this curious proposition, defendants cite two cases decided by the Third and Fourth Departments of the New York Supreme Court Appellate Division in 1907 and 1914 respectively. Contrary to defendants' contention, the first case they have cited, Morgan v. Waters, 122 A.D. 340, 106 N.Y.S. 882 (1907), actually supports the proposition that an action in waste cannot be brought against a non-tenant third party. In Morgan, the respondent argued that the action could not lie because "an *336 action in waste cannot be maintained against a stranger." 122 A.D. at 342, 106 N.Y.S. 882. The Morgan court did not disagree but wrote that "this is not strictly an action of waste. In Livinston v. Haywood (11 Johns. 429) the action of waste is recognized against the tenant, but it is held that a revisioner may have an action of trespass against a stranger. The limitations of the Code, therefore, applicable to an action of waste brought thereunder do not in any way limit plaintiffs' right of action here." Id. Thus, Morgan is not inconsistent with later New York cases on point holding that an action in waste in connection with real property may by pursued only by a landowner/landlord against a tenant.
The second case cited by defendants, Iroquois Brewing Co. v. Thomas Cusack Co., 147 N.Y.S. 1117 (App.Div.1914), likewise does not hold that an action for waste can lie against a non-tenant. This one-paragraph memorandum order reversing a lower court determination does not state that an action in waste may lie against a non-tenant, but rather that a non-tenant defendant could be liable "under section 1651 of the Code of Civil Procedure, as assignee of the tenant" when defendant's actions may have caused "damage to the building in the nature of waste." Iroquois Brewing Co., 147 N.Y.S. at 1117. Thus, Iroquois Brewing is inapplicable on the facts of this case because defendants have neither alleged nor shown that plaintiffs were assignees of the tenant. It also does not support the proposition for which defendants have cited it because Iroquois Brewing simply does not hold that an action sounding in waste and in the context of real property can be maintained against a non-tenant. Finally, even if it were read to support this proposition, Iroquois Brewing would no longer be controlling authority in light of subsequent pronouncements by the New York Court of Appeals to the contrary.
Defendants' counterclaim is therefore deficient. First, the parties against whom the counterclaim is asserted were not tenants, but rather were independent contractors hired by the net lessee and/or its agents. To the extent that an action for waste may lie, defendants have moved against the wrong party. Defendants must pursue their claim sounding in waste, if at all, against the former net lessee.
Second, defendants have not shown that the fundamental character of the Property has been changed. The Property is a commercial building in which space is leased to retail, commercial, and light manufacturing entities. Plaintiffs' actions have not had any impact on this fundamental character.[20]
Third, defendants have not shown that plaintiffs' actions have caused any permanent or lasting damage to the Property. Defendants have shown that certain parts of the Property are not currently in compliance with New York City building and electrical codes. This is not determinative, however. As an initial matter, defendants' experts have testified that, with one minor exception, any noncompliance with applicable codes can be remedied without altering the Work. Thus, any "damage" of this variety certainly is not permanent or lasting. Moreover, under the terms of the Net Lease, the net lessee not plaintiffs was responsible for ensuring compliance with applicable codes. (DExh. BBB, at 10-11 §§ 6.03-6.04).
Defendants' counterclaim therefore fails both as a matter of law and fact. Under New York law, a claim for waste in the context of real property may be maintained only against a tenant, not a third party independent contractor hired by the tenant. Even assuming that such a claim could lie, defendants have not established the factual predicate for such a claim against plaintiffs. Accordingly, defendants' counterclaim must be dismissed.
CONCLUSION
For the reasons discussed above, plaintiffs' second, third, and fourth claims for relief are dismissed with prejudice. Defendants' counterclaim *337 is also dismissed with prejudice. Plaintiffs' requests for an award of money damages and for reimbursement of costs and attorney's fees in connection with their first claim for relief is denied.
Plaintiffs are entitled to injunctive relief with regard to their first claim for relief:
Accordingly, IT IS HEREBY ORDERED that defendants, their agents, their employees, and their representatives are enjoined from (1) distorting, mutilating, or modifying plaintiffs' art work (defined herein as "the Work") installed or located in the Lobby of the Property located at 47-44 31st Street, Queens, New York; (2) destroying this art work; and/or (3) removing this art work, or any portion thereof; and
IT IS FURTHER ORDERED that this injunction pertains only to that art work that has been defined herein as "the Work" (the sculptural installations and sculptural elements that are located within the confines of the Lobby of the Property located at 47-44 31st Street, Queens, New York), including, but not limited to (1) art work affixed to, or otherwise located in or on, the floor, walls, and ceiling of the Lobby, including the floor and wall mosaic, and (2) the interior of the three elevators that open into the Lobby; and
IT IS FURTHER ORDERED that this injunction does not prohibit the distortion, mutilation, modification, destruction, or removal of (1) art work created by plaintiffs in areas of the Property other than the Lobby; (2) the entrance steps at the 31st Street entrance; (3) the "building directory;" or (4) lighting fixtures or lighting structures located within the confines of the Lobby, except that this injunction does prohibit distortion, mutilation, modification, destruction, or removal of the "florescent snake," the "illuminated floor placque," "the chandelier," and lighting elements directly incorporated into the Work such as the headlights of the bus; and
IT IS FURTHER ORDERED that this injunction does not prohibit defendants from employing a licensed electrician to rewire sculptural elements within the Lobby in order to bring those elements into compliance with applicable electrical codes, provided that such rewiring does not change the physical appearance of rewired elements or alter their mechanical function; and
IT IS FURTHER ORDERED that the parties may, without violating this injunction, expressly agree in writing to distort, mutilate, modify, destroy, or remove the Work or any portion thereof provided this agreement is (1) embodied in a written agreement, (2) signed by each of the then-living plaintiffs as well as by defendants' agent or successor in interest, and (3) dated and notarized; and
IT IS FURTHER ORDERED that nothing in this injunction shall confer upon plaintiffs the right to engage in further creation of the Work, except that plaintiffs may, at their own expense, and within ninety (90) days of the date of this Opinion, repair (1) the "astronaut" and (2) the "illuminated floor placque," which became dysfunctional subsequent to the commencement of this suit. If plaintiffs elect to make these repairs, defendants may elect to have any necessary electrical work completed by a licensed electrician working under plaintiffs' supervision, provided however, that if defendants make this election the costs associated with hiring the licensed electrician shall be born by defendants; and
IT IS FURTHER ORDERED that, whereas plaintiffs have demonstrated that they own the copyright to the Work and the right to exploit that copyright, defendants are enjoined from denying plaintiffs and their invitees reasonable access to the Lobby. For the purpose of this order, reasonable access shall be defined as access Monday through Saturday, except for federal and state holidays, between the hours of 10:00 a.m. and 5:00 p.m.; and
IT IS FURTHER ORDERED that this injunction will remain in effect until the death of the last surviving author of the Work. For the purpose of this order, the authors of the Work are John Francis Carter, John Meade Swing, and John James Veronis, Jr.; and
IT IS FURTHER ORDERED that the preliminary injunction issued by this Court in this case on May 18, 1994 is vacated; and
*338 IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter judgment in accordance with this Opinion & Order.
SO ORDERED.
NOTES
[1] Upon request of the parties, the Joint Pretrial Order was twice amended. See Carter v. Helmsley-Spear, Inc., 94 Civ. 2922 (DNE) (June 28, 1994 Memorandum Endorsement); Carter v. Helmsley-Spear, Inc., 94 Civ. 2922 (DNE) (July 7, 1994 Memorandum Endorsement).
[2] On April 27, 1994, this Court received cross-requests from plaintiffs and defendants to modify the temporary restraining order issued by this Court on April 26, 1994. In a Memorandum & Order, dated April 28, 1994, this Court denied both plaintiffs' and defendants' requests for modification. See Carter v. Helmsley-Spear, Inc., 94 Civ. 2922 (DNE), 1994 WL 167960, 1994 U.S. Dist. LEXIS 5581 (S.D.N.Y. April 28, 1994).
[3] "HTr." refers to the hearing transcript. "TTr." refers to the trial transcript.
[4] "UF" refers to a fact stipulated to by the parties in the Joint Pretrial Order. The number following the designation "UF" identifies the location of the stipulated fact within paragraph five of the Joint Pretrial Order.
[5] "DExh." refers to exhibits moved into evidence by defendants. "PExh." refers to exhibits moved into evidence by plaintiffs.
[6] Although plaintiffs created art work in areas of the Property other than the Lobby, protection of that art work is not at issue in this case. Accordingly, only the art work located in and around the Lobby will be discussed.
[7] Although certain sculptural elements were constructed using new material, such as stock steel, these elements are thematically consistent because even these elements have the appearance of having been crafted from recycled material.
[8] The Property was consistently referred to by plaintiffs, Sig, and the Limited Partnership as "The Factory."
[9] As previously noted, I did not find Mr. Cohen to be a credible witness. Accordingly, the Court does not credit his testimony concerning his prior installation of art work in properties that he owned or managed.
[10] An earlier version of VARA provided that a "court or other trier of fact may take into account the opinions of artists, art dealers, collectors of fine art, and other persons involved with the creation, appreciation, history, or marketing of works of recognized stature." S. 1198, 101st Cong., 1st Sess., 135 Cong.Rec. S6811-13 (daily ed. June 16, 1989). Although this provision was eliminated from VARA prior to enactment, thus providing courts greater discretion with regard to what sources may be considered in determining whether a given work of visual art is a work of recognized stature, courts can, and should, consider these sources in determining whether a given work is of recognized stature.
[11] Plaintiffs have made this showing in the instant case. Although defendants have backed off from their initial position somewhat (TTr., at 663), defendants' counsel has stated on the record that "it has already been conceded, I believe, or acknowledged on both sides that we don't want the sculptures there at all.... We don't want them there." Carter v. Helmsley-Spear, Inc., 94 Civ. 2922 (DNE) (May 31, 1994 Hearing Transcript), at 16; see also TTr., at 312. It is therefore clear from the record that defendants want to remove the Work. The art experts who were called to testify, including an expert witness called by defendants (TTr., at 302), uniformly agreed that removal of the Work would cause its destruction.
[12] VARA does not delineate when a work must attain "recognized stature" in order to be entitled to protection under this Section. Considering the purpose of this Section, the Court does not view this as unintentional. The test is whether the art work at issue is of recognized stature, not when it attained this status. This interpretation is wholly consistent with the preservative goal of this Section. It should be noted, however, that there is evidence in the record that the Work became a work of recognized stature prior to the filing of plaintiffs' complaint in this action. (See, e.g., HTr., at 111-18; TTr., at 46, 76-77, 79, 83).
[13] Mr. Kramer testified on cross examination that he believes that "most of the art in the current scene is of a shockingly low level" and that "the very notion of quality in art has been discarded." (TTr., at 322). From the record it is evident that he rejects contemporary art as intrinsically meritless. (TTr., at 321-23). Mr. Kramer's apparent disdain for contemporary art leads this Court to accord his opinion testimony significantly less weight than that of the other experts who testified, who are intimately familiar with evolving standards in the area of contemporary art.
[14] Prior to the commencement of trial, defendants also raised an argument that VARA is unconstitutionally vague. Specifically, defendants argued that the terms "honor," "reputation," and "stature" are not defined by VARA and their meanings cannot reasonably be ascertained. Defendants abandoned this argument following trial, however, and have not briefed this issue in their post-trial memorandum. Nevertheless, I note that the terms objected to by defendants have a common sense, easily understood meaning that should be apparent to all parties reviewing VARA. Like the statute reviewed in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), VARA is "marked by `flexibility and reasonable breadth, rather than meticulous specificity.'" 408 U.S. at 110, 92 S.Ct. at 2300 (citation omitted). Thus, VARA is not unconstitutionally vague.
[15] The parties have stipulated that plaintiffs own the copyright to the Work. (UF 26). In addition, defendants have stated that they "have no objection to providing plaintiffs with reasonable additional access [to the Work] for the purpose of exploiting their copyright." Defendants' Post-Trial Memorandum of Law, at 77. Moreover, this Court has broad equitable power to enjoin defendants from denying plaintiffs and their invitees access to the Work for the purpose of exploiting this copyright. See, e.g., Community for Creative Non-Violence v. Reid, 86 Civ. 1507 (TPJ), 1991 WL 370138 at *1-2, 1991 U.S. Dist. LEXIS 20227, slip op., at *2-*3 (D.D.C. Oct. 16, 1991).
[16] Although not relevant in this case, 17 U.S.C. § 411(a) also provides that where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyright.
[17] Assuming that plaintiffs register the Work with the Register of Copyrights, the Court would have jurisdiction over a suit brought by plaintiffs in the future should defendants engage in conduct subsequent to the filing of this Opinion that constitutes copyright infringement under the Copyright Act.
[18] It should be noted that Black's Law Dictionary defines a licensee as: "A person who has a privilege to enter upon land arising from the permission or consent, express or implied, of the possessor of land but who goes on the land for his own purpose rather than for any purpose or interest of the possessor." Black's Law Dictionary 830 (5th ed. 1979). In contrast, Black's Law Dictionary defines an "invitee" in the following manner: "A person is an `invitee' on land of another if (1) he enters by invitation, express or implied, (2) his entry is connected with the owner's business or with an activity the owner conducts or permits to be conducted on his land and (3) there is mutuality of benefit or benefit to the owner." Id. at 742. These definitions are consistent with those employed by New York courts. See, e.g., Davis v. Shelton, 33 A.D.2d 707, 304 N.Y.S.2d 722, 725 (1969); LeMay v. General Elec. Co., 114 Misc.2d 445, 451 N.Y.S.2d 990, 993 (Sup.Ct.1982).
Because plaintiffs concede that they were "licensees," and defendants argue that plaintiffs were licensees if they were not employees (which, the Court has found, they were not), the Court will not consider whether plaintiffs were licensees or invitees under New York law. Because plaintiffs' concession here is somewhat puzzling, it must be assumed that plaintiffs' primary contention on this claim is that they are entitled to recover damages stemming from defendants' allegedly wrongful lock-out of plaintiffs from a space adjacent to the Lobby that plaintiffs had formerly used as a work shop. Arguably, this space was licensed to plaintiffs in their status as independent contractors for their sole benefit, since provision of this space relieved plaintiffs of the necessity of maintaining a separate studio off-site and may not have inured to Sig's, Corporate Life's, or the Limited Partnership's benefit. Because it is not clear whether plaintiffs seek recovery of damages in connection with their ejection from this space alone, or also from the Lobby and/or the entirety of the Property to which they previously had access, this Court will consider plaintiffs' fourth claim for relief in relation to all of the aforementioned areas.
[19] As noted above, this Court rejects this contention and finds that plaintiffs were independent contractors. See supra p. 322.
[20] Although the attachment of sculptural elements to the ceiling of the Lobby may have decreased the "live load" of the floor immediately above the Lobby, it is clear from the record that this alteration is negligible and does not impact the fundamental character of the Property. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261847/ | 132 Cal.Rptr.2d 362 (2003)
107 Cal.App.4th 424
Joyce LEAMON, Plaintiff, Cross-Defendant and Appellant,
Karen Herrera, Plaintiff, Cross-Defendant and Respondent,
v.
Leonard KRAJKIEWCZ, et al., Defendants, Cross-Complainants and Appellants.
No. F038025.
Court of Appeal, Fifth District.
February 24, 2003.
Opinion on Denial of Rehearing March 25, 2003.
Review Denied May 14, 2003.
*363 Law Offices of Michael Abbott and Michael Abbott, Modesto, for Plaintiff, Cross-defendant and Appellant and for Plaintiff, Cross-defendant and Respondent.
Griffith & Farrace and Robert F. Farrace, Redondo Beach, for Defendants, Cross-complainants and Appellants.
Certified for Partial Publication.[*]
OPINION
VARTABEDIAN, Acting P.J.
This appeal concerns the enforceability of a contract for the sale of real estate. A homeowner and her daughter filed a quiet title action against the potential buyers, claiming their written contract was not valid. The buyers filed a cross-complaint for breach of contract, specific performance and other causes of action and claimed attorney fees pursuant to a clause in the contract. The jury found the contract was not valid and judgment was entered for the plaintiffs. The trial court subsequently denied the homeowner's request for attorney fees as the prevailing party under Civil Code section 1717.
The buyers appeal claiming numerous errors. The homeowner appeals claiming that, even though she asserted the contract was not valid and did not fulfill the contractual condition precedent of seeking mediation before filing suit, she is entitled to attorney fees under the contract because she would have been liable for attorney fees had the buyers prevailed.
In the unpublished portion of our opinion, we hold substantial evidence supports the jury's special verdict and find no merit in buyers' claims of prejudicial error.
In the published portion of our opinion, we hold the cross-appeal is without merit because the homeowner did not satisfy the contractual condition precedent of seeking mediation before commencing her quiet title action and, as a result, is not entitled to recover attorney fees.
The judgment is affirmed. The order taxing attorney fees also is affirmed.
FACTS AND PROCEDURAL HISTORY
Plaintiff Joyce Leamon (Leamon) owned a single-family residence located on Lydia Lane in Modesto, California (the Property). In 1996 or 1997 she listed the Property for sale with a realtor named Joe Randy. After the listing expired, her next door neighbors, Leonard and Corrie Krajkiewcz (collectively, the Krajkiewczes), expressed an interest in purchasing the Property. With the help of Rick Denison (Denison), a real estate agent and friend of Leonard Krajkiewcz, a sale contract was drawn up and the Krajkiewczes put down a deposit. However, the transaction was not completed because the Krajkiewczes were not able to come up with the money.
*364 In late July or early August of 1999, the Krajkiewczes again expressed an interest in buying the Property. Leamon told them she wanted to clear $65,000 on the sale. The Krajkiewczes agreed and asked if Denison could represent both sides. Leamon agreed to this request. As a result, Denison first contacted Leamon about the proposed transaction a week or two before September 22, 1999. Denison told Leamon he would do the paperwork and get everything started.
On September 20, 1999, Leamon had a conversation with her daughter, Karen Herrera (Herrera), and told Herrera that she was selling the Property. In that conversation, Herrera told Leamon that she wanted the Property. Leamon told Herrera that, as her daughter, she came first. Herrera told her mother she would come by to discuss it.
By coincidence, on September 21, 1999, Joe Randy contacted Leamon to ask her if she was interested in selling the Property. Randy testified that Leamon told him that she wanted to give or sell the Property to her daughter. Also on September 21, 1999, Denison telephoned Leamon to make an appointment to come to her home to have the contract signed. Leamon told Denison that her daughter wanted the Property, she did not intend to sell to the Krajkiewczes, and she would not make an appointment.
On September 22, 1999, at around 9:30 to 10:00 a.m., Denison and the Krajkiewczes came to Leamon's door. Leamon told them she did not have an appointment with them. Denison then told Leamon that a verbal agreement was the same as a written one and if she did not go through with the sale [1] he would lose thousands of dollars and would take her to court. At that point, Leamon invited them inside and they went to her kitchen table. Also present in the kitchen was Leamon's husband, Shawnda Webber and Gloria Vierra.
During the conversation in the kitchen, the Krajkiewczes told Leamon more than once that they wanted her to sell them the Property, the reasons why they wanted the Property, and why she should sell it to them. Leamon also testified that during the conversation Denison threatened her with litigation several times. During the conversation, Leamon told them she wanted to wait for her daughter and tried to reach her daughter by telephone. Denison responded that he could not wait because he had a doctor's appointment in Stockton concerning his cancer.
Denison had brought with him documents including a standard form "California Association of Realtors' Residential Purchase Agreement and Receipt for Deposit" for use with single family residential property (the Agreement), as well as a disclosure form regarding a real estate agent's representing both seller and buyer. Just before she signed the Agreement and other papers, Leamon left the kitchen because she was crying. Her eyes were full of tears and she could not see. She washed her face in the bathroom in an effort to calm down.
When Leamon returned to the kitchen, Denison showed her where to sign the documents. Denison and the Krajkiewczes left immediately after the documents were signed.
At trial, Leamon was asked if "but for the threats of Mr. Denison that you would be sued would you have signed those documerits?" *365 She responded, "No. Definitely not." Leamon also testified that she believed Denison when he told her that she was obligated to sign the documents because she had an oral agreement to convey the Property to the Krajkiewczes.
On September 23, 1999, after speaking with her daughter and son-in-law, Leamon telephoned her attorney. Subsequently, her attorney sent a letter dated September 23, 1999, to Denison and the Krajkiewczes stating that "you are hereby notified that Mrs. Leamon has decided to cancel the sale of her home." The letter mentioned the threats of litigation made to Leamon and stated her signature on the Agreement was procured under duress.
On December 2, 1999, the Krajkiewczes filed a small claims action for breach of contract claiming that Leamon owed them $5,000 in damages. On December 22, 1999, Leamon filed a complaint against the Krajkiewczes and Denison to quiet title in the Property and for infliction of emotional distress. Leamon also moved to consolidate the small claims action with the quiet title action. The cases were not consolidated because the small claims action was dismissed without prejudice.
On February 25, 2000, counsel for the Krajkiewczes sent counsel for Leamon a letter requesting mediation of the dispute in accordance with paragraph 21A of the Agreement. Leamon did not comply with this request.
In April 2000, Leamon and Herrera filed a verified second amended complaint to quiet title and to obtain a judicial declaration that the Agreement was void and of no effect. The relief requested in the second amended complaint did not include a request for attorney fees.
In June 2000, the Krajkiewczes filed an answer to the second amended complaint and filed a cross-complaint against Leamon and Herrera alleging causes of action for breach of contract, specific performance, fraudulent conveyance and intentional inference with economic relationship. The answer by the Krajkiewczes requested attorney fees pursuant to contract or statute. In addition, the relief requested in the cross-complaint by the Krajkiewczes included a request for attorney fees with respect to the causes of action for breach of contract and specific performance.
In July 2000, Leamon and Herrera filed an answer to the cross-complaint denying the Krajkiewczes were entitled to relief and requested a judgment that would include "attorneys' fees incurred in defending this matter."
A jury trial was held from Monday, December 4, 2000, through Friday, December 8, 2000. At the start of trial, the Krajkiewczes filed a number of papers, including their motion in limine No. 1, which sought to exclude certain documents based on the statute of frauds. The trial court granted this unopposed motion in limine. On December 8, 2000, the jury heard closing arguments, received instructions from the trial court, and retired for deliberations at 3:44 p.m. At 4:32 p.m. they returned into court with a verdict. In response to question No. 1 of the special verdict, which asked if they found there was a valid contract between the Krajkiewczes and Leamon, the jury answered, "No." Judgment in favor of Leamon and Herrera was entered on January 17, 2001.
On March 7, 2001, the Krajkiewczes filed a motion for new trial asserting (1) Denison's threats of litigation related to his commission agreement and were not evidence of duress affecting the Agreement, (2) counsel for Leamon and Herrera acted improperly by arguing the jury should end its deliberation for reasons outside the evidence, (3) the jury acted improperly by rendering a verdict without *366 deliberation, (4) the trial court erred by reversing its ruling on motion in limine No. 1, changing the special verdict form and asking only the foreperson about perceived irregularities in the deliberations. On March 20, 2001, the motion for new trial was heard and denied by the trial court. The Krajkiewczes filed a notice of appeal from the judgment.
After the entry of judgment, Leamon and Herrera filed a memorandum of costs that included a request for attorney fees in the amount of $27,612 and supported that request by filing a motion to fix attorney fees. The Krajkiewczes filed a motion to tax costs that asserted, among other things, that (1) Leamon and Herrera never offered mediation prior to filing their complaint and therefore failed to comply with the requirements of the Agreement for an award of attorney fees, and (2) Herrera was not sued as a cross-defendant on the breach of contract cause of action and therefore was not a prevailing party entitled to attorney fees.
The trial court ruled on the motion to tax costs and disallowed the entire request for attorney fees. Leamon brought a motion to reconsider and that motion was denied. Leamon filed a notice of appeal challenging the taxing of attorney fees as costs and the denial of the motion to reconsider.[2]
DISCUSSION
The Krajkiewczes argue that this matter should be remanded for a new trial because (1) Leamon failed to offer any evidence of duress in the formation of the Agreement, (2) the reporter's transcript of the trial is unreliable and deprives them of their right to appeal, (3) the special verdict is tainted with attorney and juror misconduct, and (4) the trial court committed reversible error by admitting a letter in evidence that purported to cancel the Agreement. All of these arguments fail.
I.-IV.[**]
V. Attorney Fees Under the Agreement
An appellate court reviews a determination of the legal basis for an award of attorney fees independently as a question of law. (Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 677, 101 Cal.Rptr.2d 127.)
"[W]hen a party litigant prevails in an action on a contract by establishing that the contract is invalid, ... [Civil Code] section 1717 permits that party's recovery of attorney fees whenever the opposing parties would have been entitled to attorney fees under the contract had they prevailed. [Citations]" (Santisas v. Goodin (1998) 17 Cal.4th 599, 611, 71 Cal.Rptr.2d 830, 951 P.2d 399.) Leamon, seeking a literal application of the above quoted language to the facts of this case, argues she is entitled to attorney fees because the Krajkiewczes would have been entitled to attorney fees if they had prevailed. Accordingly, Leamon asserts the trial court's ruling taxing attorney fees in the amount of $27, 612 from her memorandum of costs should be reversed.
In response, the Krajkiewczes contend the trial court properly taxed the attorney fees because Leamon failed to seek mediation of the dispute and thus failed to satisfy *367 a contractual condition precedent for the recovery of attorney fees. The trial court relied upon Johnson v. Siegel (2000) 84 Cal.App.4th 1087, 101 Cal.Rptr.2d 412, which involved the same standard form residential purchase agreement as was used in this case.
The Agreement contains two paragraphs relevant to the issues raised concerning attorney fees. Paragraph 25 provides: "ATTORNEY'S FEES: In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney's fees and costs from the non-prevailing Buyer or Seller, except as provided in Paragraph 21A."
Paragraph 21A provides: "MEDITION: Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action, subject to paragraphs 21 C and D below. Mediation fees, if any, shall be divided equally among the parties involved. If any party commences an action based on a dispute or claim to which this paragraph applies, without first attempting to resolve the matter through mediation, then that party shall not be entitled to recover attorney's fees, even if they would otherwise be available to that party in any such action. THIS MEDIATION PROVSION APPLIES WHETHER OR NOT THE ARBITRATION PROVISION IS INITIALED."
In Johnson v. Siegel, supra, 84 Cal. App.4th at pages 1100-1101, 101 Cal. Rptr.2d 412, the Sixth District interpreted paragraph 21A of the standard form residential purchase agreement to mean that a purchaser who commenced litigation without seeking mediation was liable for the seller's attorney fees after the seller prevailed in the litigation. In analyzing the purchaser's claim to attorney fees, the Sixth District stated that the purchaser forfeited his right to recover attorney fees by filing the action without seeking mediation. (Id. at p. 1101, 101 Cal.Rptr.2d 412.) Based on this statement, which is obiter dictum, the Krajkiewczes contend Leamon is precluded from recovering attorney fees.
We have not found, nor have the parties cited, any published decision that addresses whether or not contractual conditions precedent to an award of attorney fees apply to a litigant who prevails by establishing the contract is invalid. Thus, as recognized by the trial judge, the question presented is one of first impression.[6]
To resolve this issue, we must consider whether or not there is a conflict between the concept of mutuality of remedy embodied in the provisions of Civil Code section 1717 regarding attorney fee claims under contractual attorney fee provisions (see Santisas v. Goodin, supra, 17 Cal.4th at p. 610, 71 Cal.Rptr.2d 830, 951 P.2d 399) and the provision in the Agreement that allows a party who commences an action to recover attorney fees only if that party first sought to resolve the dispute through mediation.
We conclude that the enforcement of the condition precedent to the recovery *368 of attorney fees does not conflict with the concept of mutuality of remedy under the facts of this case.
First, mutuality of remedy exists because the Krajkiewczes could not have commenced their action in superior court[7] and recovered attorney fees without first seeking mediation. In that sense, the imposition of a condition precedent on the recovery of attorney fees is mutual and reciprocal. To hold otherwise would violate the concept of mutuality of remedy by requiring the party who argues the contract is valid to comply with conditions not imposed on the party who asserts the contract is invalid.
Second, requiring a party to mediate the question of the validity of contract does not necessarily mean that party concedes the contract is not voidable. A request for mediation can clearly state the party's position that the contract is voidable or invalid and that mediation is sought to preserve a claim for attorney fees.[8]
In addition, the public policy of promoting mediation as a preferable alternative to judicial proceedings is served by requiring the party commencing litigation to seek mediation as a condition precedent to the recovery of attorney fees. In this case, had the parties resorted to mediation, their dispute may have been resolved in a much less expensive and time-consuming manner. Instead, in a dispute that entered the court system as a small claims action for $5,000 in damages for breach of contract, Leamon spent over $27,000 in attorney fees and, as a result of her victory, avoided an order for specific performance that would have required her to accept $82,000 in exchange for the Property. The economic inefficiency of this result may have been avoided if, prior to judicial proceedings, a disinterested mediator had explained to Leamon and the Krajkiewczes the costs of litigating the dispute through to a judgment or a final resolution by an appellate court.
Accordingly, we determine the trial court did not err in taxing all of the attorney fees requested by Leamon as costs.
DISPOSITION
Judgment in favor of Leamon and Herrera is affirmed. The order taxing attorney fees as costs is affirmed. Because each party partially prevails, no costs are awarded on the instant appeals.
WE CONCUR: LEVY and CORNELL, JJ.
SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING
VARTABEDIAN, Acting P.J.
On March 11, 2003, Leamon and Herrera (hereafter Leamon, collectively) filed a petition for rehearing. Leamon argues this court mistakenly concluded the issue concerning attorney fees was one of first impression and we should modify our decision to avoid a conflict in the interpretation of Civil Code section 1717 (section 1717) with the First District's decision in Wong v. Thrifty Corp. (2002) 97 Cal.App.4th 261, 118 Cal.Rptr.2d 276 (Wong), a case Leamon cites for the first time.
*369 In Wong, a landlord sued a tenant for damages discovered after the tenant had vacated the rented premises. The landlord accepted a Code of Civil Procedure section 998 (section 998) offer to compromise for an amount equal to about 60 percent of the alleged damage. The offer to compromise was silent as to attorney fees and costs. After judgment was entered, the landlord moved for attorney fees. The attorney fee language in the lease provided for payment of fees to the landlord in an enforcement action in which it was "determined" the tenant was in default of any obligation. The tenant argued the lease did not authorize an award of attorney fees because the section 998 judgment did not constitute a determination that it had defaulted on an obligation under the lease. The trial court agreed with the tenant's analysis and denied the motion.
The First District reversed and held section 1717 entitled the landlord to attorney fees. The First District stated the conditions in section 1717 for an award of attorney fees had been met because (1) there had been an action on the contract, (2) the contract provided that fees incurred to enforce the contract were to be awarded to one of the parties, and (3) the landlord recovered greater relief in the action and therefore was the "prevailing party" for purposes of section 1717. (Wong, supra, 97 Cal.App.4th at p. 265, 118 Cal.Rptr.2d 276.) The First District concluded the contractual language confining entitlement to attorney fees to a party who prevailed upon a "determination" of liability conflicted with the statutory definition of "prevailing party" and, as a result, the conflicting contractual language was void. (Ibid.) The court reasoned that allowing a contract to preclude the recovery of fees in an action that was settled instead of adjudicated would thwart the statutory purpose. (Wong, supra, 97 Cal.App.4th at p. 265, 118 Cal.Rptr.2d 276.)
First, Leamon's petition for rehearing asserts the Wong case "squarely addressed" the issue this court determined was one of first impression namely, the question of whether or not contractual conditions precedent to an award of attorney fees apply to a litigant who prevails by establishing the contract is invalid. We reject this assertion because the Wong case did not involve a contract established to be invalid or the satisfaction of a condition precedent completely within the control of the party requesting attorney fees. At a secondary level, Wong also is distinguishable because it involved the interplay between Civil Code section 1717 and Code of Civil Procedure section 998 while the instant case concerns the interaction between section 1717 and the public policies favoring mediation. Finally, the attorney fees provision in Wong was unilateral while the provisions in the Agreement apply equally to the buyer and the seller.
Second, Leamon's petition for rehearing asserts that the method of analysis and "the rationale of the Wong decision is compelling and should be adopted" in this case. We recognize that our methodology for applying section 1717 to the facts of this case appears to be different than the methodology applied by the First District in Wong, supra, 97 Cal.App.4th 261, 118 Cal.Rptr.2d 276. However, it is not clear what arguments were presented or considered by the First District in Wong and therefore this apparent difference in methodology could be the result of a difference in how the cases were presented. Thus, the difference in methodology is not necessarily the result of conflicting views of the law and grounds exist for reconciling this decision with the Wong decision.
Leamon's petition asserts "a mistake of law" in our conclusion that "the enforcement of the conditions precedent to the recovery of attorney fees does not conflict *370 with the concept of mutuality of remedy under the facts of this case." Leamon contends that because the Krajkiewczes would have recovered their attorney fees had they prevailed on the contract causes of action, section 1717 mandates that Leamon also is entitled to reasonable attorney fees.
The first sentence of section 1717, subdivision (a) provides:
"In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs."
Leamon construes section 1717 to unambiguously award attorney fees to the prevailing party without requiring that party to satisfy any contractual restrictions or conditions precedent. Under this expansive construction of section 1717, once a contract opens the door for a prevailing party to recover attorney fees, the contract cannot close that door in a particular set of circumstances by including qualifications, restrictions or limitations on the right to attorney fees. This construction of section 1717 by Leamon of the phrase "specifically provides" would prohibit parties any flexibility in stating the precise circumstance in which attorney fees are recoverable.
To harmonize the language in the first sentence of section 1717, subdivision (a) with the other language in that subdivision, we construe the phrase "specifically provides" to permit parties to a contract to set forth with specificity the circumstances in which attorney fees are recoverable, provided any such specific contractual provisions do not otherwise conflict with the requirements of section 1717.
The foregoing construction of the phrase "specifically provides" is reasonable when considered in light of the legislative history of section 1717 as well as the public policy concerns, particularly the evils section 1717 was designed to remedy. (See Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744, 38 Cal.Rptr.2d 650, 889 P.2d 970.)
The public policies of establishing mutuality of remedy and eliminating one-sided attorney fees provisions are not necessarily served by construing section 1717 to void all contractual restrictions on attorney fees. Restrictions do not offend these public policies if they are mutual, do not favor one party over the other, and cannot be manipulated for tactical advantage in the litigation by one of the parties. Therefore, public policies underlying section 1717 would not be served by construing the phrase "specifically provides" in a manner that imposes a blanket prohibition on all restrictions or conditions that might be contractually imposed on an award of attorney fees to a prevailing party. Moreover, on the instant facts, public policies of section 1717 are served by contractual conditions encouraging parties to settle their disputes through mediation rather than proceeding to a lengthy, costly trial. We are satisfied that mutuality is served when both parties are subject to the same reasonable restrictions that do not inherently favor one party, as is the case here.
We need not elaborate upon our rejection of other belated bases claimed to justify rehearing. Failure of Leamon to satisfy a condition precedent does not amount to a waiver prohibited by section 1717, subdivision (a). (See Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 211, 91 Cal.Rptr.2d 716, 990 P.2d 591.) Likewise, the claim that the Krajkiewczes are judicially estopped from contending Leamon's entitlement to attorney fees is restricted *371 by the Agreement because the prayer for relief of the Krajkiewczes included a demand for attorney fees is utterly meritless. (See Jackson v. Comity of Los Angeles (1997) 60 Cal.App.4th 171, 183, 70 Cal.Rptr.2d 96.)
Therefore, we conclude Leamon is not entitled to a rehearing or to a modification of the opinion and disposition previously entered.
The petition for rehearing or modification of opinion is denied.
WE CONCUR: LEVY and CORNELL, JJ.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I through IV.
[1] In her two descriptions of Denison's statement, Leamon testified Denison said "that if I didn't go through with this sale to them that I would end up in court'' and "that if I didn't go through with the contract to sell the property to them that he would take me to court." (Italics added.)
[2] Although Leamon's motion for attorney fees and corresponding notice of appeal included Herrera and the caption of Leamon's "Cross Appellants' [sic] Reply Brief" is stated in the plural, page six of that reply brief specifically states Leamon is the only party cross-appellant, Herrera is not seeking attorney fees and Herrera is only a party to the appeal as a respondent; the reply brief also apologizes for the confusion created.
[**] See footnote *, ante.
[6] Paragraph 21A precludes a "party" who "commences an action" from recovering attorney fees if that party did not attempt to mediate the dispute. Leamon's appellate briefs did not raise, nor do we address, the issue of whether paragraph 21A should be interpreted to allow Leamon to recover attorney fees in her capacity as a prevailing cross-defendant because, in that capacity, she did not commence an action but only defended one. Nor do we express any view on whether paragraph 21A permits attorney fees to be awarded to a prevailing defendant who refused a plaintiffs request to mediate because only the party commencing an action is required to seek mediation.
[7] Paragraph 21C(d) of the Agreement excluded small claims actions from the mediation requirement. Thus, either party could commence a small claims action without seeking mediation first. (See Code Civ. Proc. § 116.530 [limits on attorney participation in small claims actions].)
[8] The parties did not argue and therefore we do not consider whether a different rule should apply to contracts that are void as opposed to those that are voidable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261869/ | 132 Cal.Rptr.2d 670 (2003)
107 Cal.App.4th 1069
The PEOPLE, Plaintiff and Respondent,
v.
Miguel Rafael Canceco ESPINOZA, Defendant and Appellant.
No. A100485.
Court of Appeal, First District, Division One.
April 14, 2003.
Rehearing Denied May 12, 2003.
*671 Ozro William Childs, under appointment by the Court of Appeal, Santa Rosa, Attorney for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Acting Senior Assistant Attorney General, Moona Nandi, Acting Supervising Deputy Attorney General, Kelly M. Croxton, Deputy Attorney General, Attorneys for Plaintiff and Respondent.
MARGULIES, J.
Defendant Miguel Rafael Canceco Espinoza, an illegal alien subject to deportation, pleaded no contest to possession of heroin and was sentenced to 16 months in state prison. Defendant contends the trial court erred in denying him probation under the provisions of Proposition 36. In view of the substantial likelihood that defendant will be deported, we hold that probation is not mandatory under Proposition 36 because it is impossible to condition such probation on defendant's completion of a drug treatment program. Accordingly, we affirm the judgment sentencing defendant to state prison.
BACKGROUND
Defendant was arrested on April 6, 2002, after police found 2.57 grams of heroin and 1.9 grams of methamphetamine in his pants pocket during a consensual search of his person. At the time of his arrest, defendant gave police a false name. He was thereafter charged by information with possession of heroin (Health & Saf. Code, § 11350, subd. (a)), possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)), and misdemeanor obstruction of a police officer (Pen.Code, § 148, subd. (a)(1)). The complaint further alleged that defendant suffered one prior prison term (Pen.Code, § 667.5, subd. (b)). On June 24, 2002, defendant pleaded no contest to one count of possessing heroin, and the People dismissed all remaining counts.
The plea agreement provided that defendant would be sent to drug court for an eligibility determination and sentencing under Penal Code section 1210.1.[1],[2] If found ineligible for drug treatment under section 1210.1, defendant agreed that he would be returned to the trial court for sentencing and could receive a maximum sentence of 16 months in state prison. The drug court determined that defendant was not eligible under section 1210.1, stating as its reason that defendant was being held without bail under a drug-related parole hold.
Defendant was referred back to the trial court for sentencing. A presentence report showed that defendant had been arrested and convicted of four alcohol-related driving offenses in 1990 and 1991. According to the report, defendant failed four grants of conditional sentences between 1991 and 1994. He failed to enroll in the Drinking Driver Program, failed to report to jail as directed, and failed to make multiple court appearances. The report stated that defendant also violated all three parole grants due to new *672 violations. In 1996 and again in 2001, defendant was paroled to the Immigration and Naturalization Service (INS) and was deported to Mexico. Both times he illegally reentered the United States in violation of his parole conditions. Defendant was also convicted of felony escape in 1994 and additional drunk driving offenses in 1998. INS was notified of defendant's present conviction, but had not placed a hold on him as of the date he was sentenced in this case.
At defendant's sentencing hearing, defense counsel requested sentencing under section 1210.1. The trial court denied the request, stating that defendant was "claiming ... an entitlement to treatment, not really expressing a real desire to be in it," and noting that defendant had not sought treatment while in jail awaiting disposition and that he had a parole hold. The court sentenced defendant to 16 months in state prison. Defendant timely appealed. This court denied defendant's petition for writ of habeas corpus without prejudice on December 11, 2002.
DISCUSSION
The sole issue in this case is whether the trial court erred in sentencing defendant to a state prison rather than placing him on probation under section 1210.1. Section 1210.1 provides in pertinent part as follows: "(a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. ... [¶] ... [¶] (b) Subdivision (a) does not apply to ...:[¶] (1) Any defendant who previously has been convicted of one or more serious or violent felonies in violation of subdivision (c) of Section 667.5 or Section 1192.7 [unless specified exceptions apply]. [¶] (2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony. [¶] (3) Any defendant who: [¶] (A) While using a firearm, unlawfully possesses any amount of (i) a substance containing either cocaine base, cocaine, heroin, methamphetamine, or (ii) a liquid, nonliquid, plant substance, or handrolled cigarette, containing phencyclidine. [¶] (B) While using a firearm, is unlawfully under the influence of cocaine base, cocaine, heroin, methamphetamine or phencyclidine. [¶] (4) Any defendant who refuses drug treatment as a condition of probation, [¶] (5) Any defendant who (A) has two separate convictions for nonviolent drug possession offenses, (B) has participated in two separate courses of drug treatment pursuant to subdivision (a), and (C) is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment." (§ 1210.1, subds.(a) & (b), italics added.)
The People contend, first, that defendant was not eligible for probation under section 1210.1 because he refused drug treatment as a condition of probation for purposes of subdivision (b)(4). According to the People, that refusal consisted of defendant's failure to attend drinking driver programs that he was ordered to take as part of conditional sentences imposed on him in 1991. We do not find this argument persuasive. Setting aside our substantial doubt that a drinking driver program qualifies as a "drug treatment program" for purposes of section 1210.1,[3]*673 subdivision (b)(4) simply means that the court may refuse probation to a nonviolent drug offender when the offender refuses to accept drug treatment as a condition of his probation. A past refusal of drug treatment in some other case, let alone a refusal to take a drinking driver class, is immaterial under that subdivision. The People offer no authority for their much more expansive reading of this exception.
The People argue further that defendant was excluded from probation under section 1210.1 because, as an illegal alien who was subject to deportation from the United States, defendant could not satisfy the mandatory condition of probation, that he complete a drug treatment program. We agree. Defendant's immigration status and criminal history make it highly unlikely that he could complete any court-ordered drug treatment before being deported. We do not believe that section 1210.1 compels the trial court to grant probation when the primary purpose and condition of that probationthat the defendant obtain drug treatmentcannot effectively be achieved.
Uncodified provisions of Proposition 36 informed voters that its purpose and intent was "(a) To divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses; [¶] (b) To halt the wasteful expenditure of hundreds of millions of dollars each year on the incarcerationand reincarcerationof nonviolent drug users who would be better served by community-based treatment; and [¶] (c) To enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies." (Prop. 36, § 3; see Historical and Statutory Notes, 51 West's Ann. Pen.Code (2003 supp.) foll. § 1210, p. 221.)
To achieve these fundamental objectives, section 1210.1 places two important mandates on the trial court. First, assuming the defendant qualifies as a nonviolent drug offender eligible for drug treatment, the court must offer probation in lieu of a jail sentence.[4] Second, and of even greater importance in attaining the objectives of Proposition 36, such probation must be conditioned on "participation in and completion of an appropriate drug treatment program." Thus, the ultimate objective of Proposition 36 is not to mandate probation in lieu of jail sentences. It is to substitute community-based drug treatment for jail sentences as a means of dissuading eligible offenders from continued drug use. As the voters were informed in the opening sentence of the ballot pamphlet summary, Proposition 36 "[r]equires probation and drug treatment" rather than incarceration, for simple drug possession offenses. (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) summary of Prop. 36, p. 3, emphasis added.)
The courts have long recognized that the decision whether to grant probation to a *674 deportable alien presents special issues. In People v. Sanchez (1987) 190 Cal.App.3d 224, 235 Cal.Rptr. 264, the Court of Appeal held that a defendant's status as an illegal alien is highly relevant to the issue of whether to grant probation because it bears directly on whether the defendant can comply with the terms of probation. (Id. at pp. 230-231, 235 Cal.Rptr. 264.) The appellate court observed that "[w]hen dealing with an illegal ... alien, the trial judge must assume, barring presentation of ... credible evidence to the contrary, a defendant will be deported upon completion of any term of incarceration imposed," and that deportation is especially likely "where a defendant is convicted of possession or sale of a controlled substance." (Id. at p. 230, 235 Cal.Rptr. 264; see also People v. Cisneros (2000) 84 Cal.App.4th 352, 358, 100 Cal.Rptr.2d 784 [defendant's illegal alien status is an appropriate factor to consider in deciding whether to offer drug treatment under a discretionary program].) In this case, the strong probability that defendant will be deported before he can satisfy the drug treatment condition of his probation would entirely frustrate the objectives of Proposition 36. (See People v. Esparza (2003) 107 Cal. App.4th 691, 132 Cal.Rptr.2d 377 [trial court not required to engage in the superfluous act of placing defendant on Proposition 36 probation when he cannot participate in the treatment program required as a condition of that probation].)
Defendant points out that his current conviction might not make him deportable "as a drug felon." (See U.S. v. Robles-Rodriguez (9th Cir.2002) 281 F.3d 900; cf. U.S. v. Arellano-Torres (9th Cir. 2002) 303 F.3d 1173.) However, whether classified as a drug felon or not, there is ample reason to assume that defendant will be deported again. He is admittedly here illegally. He has twice previously been deported after committing crimes, and he continued to violate this country's laws after twice illegally reentering this country following deportation. By any measure, defendant is a prime candidate for deportation.[5]
But defendant counters that his right to probation and drug treatment under Proposition 36 is guaranteed irrespective of how certain he is to be deported. He argues that Proposition 36 requires drug treatment to be made broadly available to eligible offenders in whatever locations are most feasible for them, whether in another state or in the offender's home country. According to defendant, the language of section 1210 specifying that drug treatment programs be "state licensed and/or certified" in no way precludes referral of the defendant to an approved drug treatment program in Mexico, to be paid for by the state.
Such an expansive reading of the state's obligation to provide drug treatment *675 finds no support in Proposition 36. Nothing in the text of the proposition, or in the ballot arguments and analyses regarding it, suggested that if this measure was enacted California would be compelled to license, certify, and fund drug treatment programs on a worldwide basis. Such an undertaking would be utterly impractical as well as prohibitively expensive. California authorities have no effective means to evaluate or certify treatment programs based in other jurisdictions. Moreover, no California court can lawfully compel a noncitizen to attend a drug treatment program in his country of origin. Our probation departments cannot force foreign treatment providers to make the reports and notifications required by the statute. (See § 1210.1, subd. (c).) Our courts lack jurisdiction to enforce their probation conditions or to remand the defendant into custody on foreign soil.
In short, once a nonviolent drug possession offender has been deported from the United States, the premises, requirements, and objectives of Proposition 36 can no longer be satisfied. Accordingly, where the defendant faces a substantial likelihood of imminent deportation, such that his probation cannot effectively be conditioned on completion of a drug treatment program, we hold that that section 1210.1 does not preclude the trial court from exercising its discretion to deny probation. Imposition of a state prison sentence in this case was therefore permissible under Proposition 36.
DISPOSITION
The judgment is affirmed.
We concur: MARCHIANO, P.J., and SWAGER, J.
NOTES
[1] Penal Code section 1210.1, enacted by the voters as part of the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36) requires eligible defendants convicted of nonviolent drug offenses to be placed on probation conditioned on "participation in and completion of an appropriate drug treatment program." (Pen.Code, § 1210.1, subd. (a); see generally People v. Campbell (2003) 106 Cal.App.4th 808, 811-814, 131 Cal.Rptr.2d 221.)
[2] All further statutory references are to the Penal Code, unless otherwise noted.
[3] Nothing in the statutory definition of "drug treatment programs" suggests that it extends to drinking driver programs: "The term `drug treatment program' or `drug treatment' means a state licensed and/or certified community drug treatment program, which may include one or more of the following: outpatient treatment, half-way house treatment, narcotic replacement therapy, drug education or prevention courses and/or limited inpatient or residential drug treatment as needed to address special detoxification or relapse situations or severe dependence." (§ 1210, subd. (b).)
[4] Offenders who were already on probation for a nonviolent drug possession offense on Proposition 36's effective date and who violate their probation by committing a new drug possession offense need not be offered probation and drug treatment. (§ 1210.1, subds.(e)(3)(D), (e)(3)(E) & (e)(3)(F); People v. Williams (2003) 106 Cal.App.4th 694, 696, 131 Cal.Rptr.2d 546.)
[5] It is not unreasonable for the trial court to assume that the INS will act to deport defendant in furtherance of its federal statutory duties. (See Evid.Code, § 664 [presumption that official duties are regularly performed].) In fact, it is California public policy to facilitate deportation of undocumented aliens who commit drug offenses in this state. Penal Code section 5025 establishes procedures to identify and transfer custody of undocumented aliens incarcerated in California to the INS. Uncodified legislative findings accompanying the adoption of section 5025 emphasized that one of its overriding purposes was to focus INS deportation efforts in California on undocumented aliens involved in drug-related crimes, in part to alleviate the burden of these crimes on our communities and courts. (Historical and Statutory Notes, 51C West's Ann. Pen.Code (2000 ed.) foll. § 5025, p. 225.) Health and Safety Code section 11369 mandates notice to the INS whenever there is reason to believe that a person arrested for certain drug offenses in California, including simple possession, may not be a citizen of the United States. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261793/ | 132 Cal.Rptr.2d 255 (2003)
107 Cal.App.4th 769
The PEOPLE, Plaintiff and Respondent,
v.
Marcus Lee HENDERSON, Defendant and Appellant.
No. E029887.
Court of Appeal, Fourth District, Division Two.
April 2, 2003.
Review Denied June 11, 2003.
*257 Marilee Marshall, under appointment by the Court of Appeal, Pasadena, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster and Peter Quon, Jr., Supervising Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
*256 OPINION
GAUT, J.
1. Introduction
Defendant Marcus Lee Henderson appeals from a judgment convicting him of several violent crimes, including murder, attempted murder, and rape against several different victims. On appeal, defendant raises the following claims: insufficient evidence supported his convictions for murder and attempted murder; the trial court erred in admitting scientific evidence; the court erred in instructing the jury with CALJIC No. 17.41.1; and the court erred in sentencing defendant by imposing a parole revocation fine under Penal Code section 1202.45[1] and calculating the custody credits.
In regards to the scientific evidence issue, we conclude that the trial court properly concluded that capillary electrophoresis, the procedure used for analyzing the amplified deoxyribonucleic acid (DNA) fragments in this case, has gained general acceptance within the relevant scientific community. We also conclude that the added complication of analyzing a multiple source DNA sample did not affect the admissibility of the evidence, but, instead, was a consideration for the jury in weighing *258 the evidence and determining the credibility and accuracy of the DNA test results.
As to the other issues, we conclude that, because section 1202.45 became effective after defendant committed the crimes, the trial court erred in imposing the parole revocation fine. We also find the record unclear as to whether the trial court properly calculated defendant's sentencing credit. For these two reasons, we reverse the trial court's judgment and remand for resentencing. In all other respects, we affirm defendant's convictions.
2. Factual and Procedural History
In the early morning hours of September 29, 1991, defendant and his companions, Wayne Hill, Marlon Junor, and Arthur Gee, left their apartment complex in a gray Thunderbird to rob someone and use the money to buy beer and marijuana. The men arrived at the parking lot of the Whiskey Creek nightclub, where defendant and another man robbed or attempted to rob Barrett Hanley and Tamara Acosta. When Hanley refused to surrender his wallet, defendant shot him in the chest with a semi-automatic gun.[2]
As the four African-American men continued to drive around, they pulled up alongside Maria D. and Marisa L. Defendant, who was seated on the front passenger side, pointed his gun at the women and forced them to stop their car and get inside the Thunderbird. After stopping once to threaten Marisa with a knife, the men drove to a remote location and parked under an overpass. At that location, one of the men, described as the tall, thin man, placed Marisa on the trunk of the car and raped her and forced her to orally copulate him. The same man later took Marisa a short distance away, placed her on the ground, and then raped her repeatedly.
Meanwhile, the other three men took turns raping Maria in the back seat of the Thunderbird and outside of the car. Each of the three men forced or attempted to force Maria to orally copulate him, at times while another man raped her from behind. All three men ejaculated in Maria.
Afterwards, the men drove the two women back to Maria's car and returned her keys. One of the men threatened Maria as they drove away.
At 4:00 on the same morning, the four men drove around and noticed a woman, Stephanie W., walking along the sidewalk. Defendant, who was sitting on the front passenger side, first called out to Stephanie. Defendant then got out of the car, fired a shot in the air, and threatened to shoot Stephanie if she did not stop walking. Defendant forced her into the back seat of the car. Inside the car, Stephanie began to shake violently. Defendant pulled her out of the car, threw her on the ground, and shot her in the chest.
About an hour later, the gray Thunderbird stopped next to Debra K., who was five months pregnant. Defendant got out of the car and ordered Debra to get in the car. Debra refused and told defendant that she was pregnant. Defendant fired his gun at Debra's abdomen and then shot her twice in the buttocks. As a result of her injuries, Debra had an emergency cesarean section and delivered her son, Joshua. Because of his premature birth, Joshua died several months later.
On July 29, 1998, the San Bernardino County District Attorney filed an information charging defendant with 19 violent crimes, including murder, attempted murder, *259 kidnapping, kidnapping for sexual purposes, forcible rape, forcible rape in concert, forcible oral copulation, and forcible oral copulation in concert. The district attorney also alleged that a principal was armed with a firearm during the commission of each of the offenses. After a lengthy trial, the jury was unable to reach a verdict and the court declared a mistrial.
On March 15, 2000, the district attorney filed a second amended information charging defendant with the 16 violent crimes: murder;[3] two counts of attempted murder; [4] kidnapping;[5] two counts of kidnapping for sexual purposes;[6] five counts of forcible rape;[7] two counts of forcible oral copulation;[8] two counts of forcible rape in concert;[9] and forcible oral copulation in concert.[10] The district attorney also charged defendant with the following firearm enhancements: a principal was armed with a firearm (all counts);[11] defendant personally used a firearm (all counts);[12] and defendant was armed with a firearm (counts 7 to 16).[13]
After another lengthy trial, the jury found defendant guilty of all 16 crimes. The jury found true all but nine of the firearm enhancement allegations. Specifically, the jury was unable to reach a verdict as to nine of the 16 personal use allegations. The trial court sentenced defendant to a total determinate term of 148 years eight months and an indeterminate term of 26 years to life.
3. Sufficiency of the Evidence[**]
4. DNA Evidence
Defendant claims that the trial court erred in admitting DNA evidence obtained by using the capillary electrophoresis method of analyzing DNA data. Defendant argues that the trial court erred in finding that the use of capillary electrophoresis on a multiple source DNA sample was generally accepted within the relevant scientific community.
Maria's sexual assault examination revealed a stain on her left inner thigh. According to the People's expert witness, the sample taken from the stain was consistent with a mixture of fluids from defendant, Junor, and Gee. If the sample consisted of DNA from two or more individuals, defendant was one possible donor. Among African-Americans, the frequency of finding a match for the DNA profiles found in the sample was 1 in 76,000.
Cellmark Diagnostics (Cellmark) performed the DNA analysis on the swab taken from the stain on Maria's left inner thigh. Cellmark used the short tandem repeats (STR) process to amplify the DNA fragments by using the P.E. Biosystems (formerly Perkins-Elmer Corporation) Profiler Plus and Cofiler systems kits. After the amplification process, Cellmark analyzed the DNA fragments by the process of capillary electrophoresis with the ABI Prism 310 Genetic Analyzer ("310 genetic *260 analyzer"), another product designed and marketed by P.E. Biosystems.
Before addressing defendant's specific argument concerning the use of capillary electrophoresis on the multiple or mixed source DNA sample extracted from the stain on Maria's left inner thigh, we first consider whether capillary electrophoresis has gained general acceptance within the scientific community.
A. Overview
In determining the admissibility of evidence derived from a new scientific technique, California courts apply the three-pronged approach approved in People v. Kelly.[28] Under this approach, the courts must consider the following: first, that the method is reliablei.e., has gained general acceptance in the relevant scientific community; second, that the witness is an expert qualified to give an opinion on the subject; and third, that the correct scientific procedures were followed in the particular case.[29]
Before applying this approach, courts must make the threshold determination of whether to conduct a Kelly hearing in the first instance. "Kelly/Frye only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law."[30] Published opinions may assist in determining whether the technique is new. "[O]nce a trial court has admitted evidence based upon a new scientific technique, and that decision is affirmed on appeal by a published appellate decision, the precedent so established may control subsequent trials, at least until new evidence is presented reflecting a change in the attitude of the scientific community."[31]
If the technique is indeed new, courts must first establish general acceptance. "On appeal, the `general acceptance' finding under prong one of Kelly is `"a mixed question of law and fact subject to limited de novo review." [Citation.] "[W]e review the trial court's determination with deference to any and all supportable findings of "historical" fact or credibility, and then decide as a matter of law, based on those assumptions, whether there has been general acceptance." [Citation.]' [Citation.]"[32]
Courts have applied the Kelly three-pronged approach to various techniques used in forensic DNA testing. Two different methodologies are widely practiced: restriction fragment length polymorphism (RFLP) and polymerase chain reaction (PCR).[33] "There are three subtypes of PCR testing: DQ-Alpha, which tests a single genetic marker; Polymarker, which tests five genetic markers; and the STR, which tests three or more genetic *261 markers. [Citation.] The RFLP and PCR methodologies, including the PCR subtypes, have acquired general acceptance in the scientific community. [Citations.]"[34]
RFLP "... involves a number of steps: (1) extraction and purification of the DNA; (2) fragmentation by restriction enzymes; (3) gel electrophoresis in which a positive electrical charge to the bottom of an agarose gel on which a DNA sample is placed causes the DNA to move through the gel from the negative to the positive charge; (4) Southern blotting in which the gel and DNA in it are transferred to a nylon membrane for easier handling; (5) hybridization in which the DNA pattern unique to the individual is identified by use of radioactively tagged probes, `unzipped' DNA segments of a known length and sequence, designed to seek out a predetermined locus in a polymorphic region of the DNA and band with a like segment of DNA; and (6) autoradiography in which a film is developed on top of the nylon membrane, revealing the location of the DNA by bands on the X-ray film, called an autoradiogram or autorad. Use of a single probe produces two bands on the autorad. Thus, running four different probes at the same time results in eight bands, [t] The autorads must be interpreted and the bands produced by the migration of DNA in the gel in different lanes examined to ascertain if they match...."[35]
The other method, PCR, which takes small pieces of DNA and copies or amplifies them, is used when the DNA sample is too small or degraded to perform the RFLP method.[36] "PCR forensic analysis involves three steps. First, DNA is extracted from cells in the sample. Second, select regions of the DNA are amplified. Scientists have identified these regions, also referred to as genes or genetic markers, as areas that exhibit great genetic variation among the population. One widely used marker is the DQ-alpha gene. [Citation.] On average, only about 7 percent of the population shares the same DQ-alpha type. [Citation.] Like DQ-alpha, the D1S80 locus is used in PCR testing because it contains several alleles and exhibits great variation. [Citation.] Polymarker analysis, which amplifies several loci simultaneously, has also been validated for use in PCR testing. [Citation.] After amplification, in the third and final step of PCR analysis the amplified gene is `typed,' through the use of DNA probes, to identify the specific alleles it contains. [Citation.] If the DNA profile thus constructed differs in any way between the suspect and the sample, the suspect is excluded. But if the profiles match, the analyst must next determine how common the profile is in the population."[37]
Both RFLP and PCR, specifically, PCR/ STR, methodologies use electrophoresis.[38]*262 There are two types of electrophoresis: polyacrylamide gel electrophoresis and capillary electrophoresis. To conduct gel electrophoresis, "`[A] test sample is placed on a gel medium in an ionized buffer solution. When an electric current is run through the solution, the sample separates and migrates on the medium into characteristic patterns. These are then fixed, dyed, and read visually by the analyst. [Citations.]'"[39] Capillary electrophoresis provides an alternative process, as described in the next part, in which the DNA sample is mixed with different colored dyes and injected into a thin capillary in a machine designed to perform the process. When the DNA fragments reach the end of the capillary, a laser is used to trigger a response in the form of light based on the dyes applied to the DNA sample, which is converted automatically by the computer software into different size peaks that appear on a graph.
In Allen,[40] the defendant challenged the trial court's finding that PCR/STR was generally accepted in the scientific community. Citing two published decisions from other jurisdictions, the appellate court held that PCR/STR has gained general acceptance.[41]Allen and the cases cited by Allen rely on expert testimony that STR has been widely used for various purposes, including forensics.[42]
In Hill, the court addressed the specific question of whether the Profiler Plus test kit constituted a new scientific technique for performing PCR/STR that required a determination of general acceptance. The court acknowledged that the forensic DNA testing method of PCR/STR has gained general acceptance within the scientific community.[43] The Profiler Plus test kit simply provided a new and improved version of performing the same procedure. Unlike the Promega test kit in Allen, which used four loci (polymorphic DNA locations)[44] and eight primers, the Profiler Plus test kit used 10 loci and 20 primers.[45] Although the defendant's expert challenged the general acceptance of the Profiler Plus test kit, the court held that the Profiler Plus test kit did not embrace a new scientific technique.[46] The court also held that as a matter of law each new PCR/STR test kit need not undergo Kelly first prong analysis.[47]
Under Allen and Hill, PCR/STR is generally accepted procedure for DNA testing and every new test kit for performing this procedure does not require a separate determination of general acceptance. The threshold question, however, is whether capillary electrophoresis, is similar to a newly developed test kit, or whether it is a new technique or procedure. We note that, based on the description of the PCR/ *263 STR testing performed in the Hill case,[48] although it appears that the testing process included capillary electrophoresis, the Hill case does not specifically mention `capillary electrophoresis' nor address the precise issue presented here.[49]
Significantly, Kelly first prong analysis is not made gratuitous simply because the new technique or procedure is part of an overall process. Kelly may apply not only to the whole, but also the part of the process that is now performed with a new technique.[50]
Unlike in the Hill case, this case does not involve merely a different test kit for performing the same essential procedure. PCR amplification and electrophoresis are two distinct parts of the overall DNA testing process. "Once the amount of DNA is amplified by the PCR process; the analyst proceeds to identify fragments of different sizes by their migration in an electric field. In order to detect variations, analyst use a process known as electrophoresis. During the PCR amplification of the STR fragments, the primers that are used contain fluorescent tags, which become incorporated into the STR fragments during amplification. During electrophoresis, the amplified fragments will pass through a gel and eventually pass through a detection window at the end of the gel. The fragments can be passed through either a flat slab gel or through a small-diameter capillary that contains a gel or liquid polymer."[51]
Electrophoresis or, more accurately, gel electrophoresis, has gained general acceptance within the scientific community. The California Supreme Court suggested that, unless there is evidence to the contrary, the exact methodology of performing electrophoresis does not present a question of admissibility but only a question directed at the weight of the evidence.[52] California Supreme Court cases and other appellate court cases upholding the general scientific principle of electrophoresis, however, do not provide independent analysis, but rely implicitly on a few earlier cases.[53] These early cases deal exclusively with some form of gel electrophoresis.[54]
*264 While both electrophoretie techniques achieve the same purpose, capillary electrophoresis is a new technique that has never been found to be generally accepted within the scientific community. Evidence presented by both the defense and prosecution in this case indicates that gel electrophoresis and capillary electrophoresis are two similar, but distinct techniques for analyzing DNA data. As discussed below, the prosecution's expert testified that the new technique of capillary electrophoresis began to appear in published writings in 1993 or 1994, years before the early cases dealing with electrophoresis granted a blanket approval of the general scientific concept. How can there be general acceptance of a new technique before its existence? Either there has been a material change in the prevailing scientific opinion or, more likely, there has been a material change in the prevailing scientific opinion as understood by the legal community.[55]
We hold that capillary electrophoresis is a new scientific technique for analyzing amplified DNA fragments that requires a determination of general acceptance under the first prong of Kelly.
B. General Acceptance of Capillary Electrophoresis
Under the first prong of Kelly, a reviewing court gives deference to the trial court's factual determinations and then determines as a matter of law whether the new scientific procedure has gained general acceptance.[56] A reviewing court may consider decisions from other jurisdictions as well as scientific literature on the subject.[57]
During the evidentiary hearing, defendant presented the testimony of Marc Taylor, who had a bachelor of science degree in serology. Taylor testified that, in defendant's case, instead of the standard technique of gel electrophoresis to separate the DNA fragments, Cellmark used the alternative procedure of capillary electrophoresis. With this new technology, the DNA fragments are stained with a florescent dye and then put through a machine, such as the 310 genetic analyzer. The 310 genetic analyzer electronically pulls the DNA fragments through a very thin capillary to separate the fragments according to their size. As the DNA fragments exit the capillary, a laser hits the stained fragments, which emit a certain color light that is captured by a camera to produce results in the form of peaks on graphs called electrophorograms.
Taylor testified that this new procedure has not been published or disseminated for public comment within the relevant scientific community. Taylor explained that laboratories experimenting with this new technique have experienced great confusion with interpreting the results. Taylor further explained that, while the Federal Bureau of Investigations (FBI) published a set of criteria for interpreting the results of capillary electrophoresis, different laboratories have not adopted uniform criteria. Taylor added that, although this technique has worked well with single source samples, because this case involved a mixed or multiple source sample, the interpretation *265 of the results becomes more complicated and less reliable. Taylor opined that the use of the capillary electrophoresis has not gained general acceptance in the scientific community, especially when applied to multiple source DNA samples.
During the prosecution's case, the court continued the evidentiary hearing and the prosecution presented its expert witness, Lewis Maddox. Maddox also described the STR amplification and capillary electrophoresis processes. Maddox explained that, in accordance with the FBI's criteria established for its Combined DNA Index System (CODIS) database, the Profiler Plus and the Cofiler Systems perform the STR process by amplifying 13 different locations in the DNA. The amplified PCR product is then put through the process of capillary electrophoresis. With capillary electrophoresis, the mixture comprised of the amplified PCR product and the fluorescent dyes is injected into the capillary. As in the gel electrophoresis process, the smaller DNA fragments migrate faster through the mechanism. The 310 genetic analyzer then reads the results as the DNA fragments move through the capillary.
Maddox testified that Cellmark began their validation of the capillary electrophoresis technique in 1998. Their validation studies included the evaluation of the smallest amount of DNA necessary to produce accurate results, the amount of florescent dye to mix with the amplified DNA material before injecting the mixture into the 310 genetic analyzer to produce the highest peak heights on the electrophorograms, the amount of DNA mixture necessary to inject into the 310 genetic analyzer to produce the highest peak heights, and the percent of stutter (i.e., error or false peaks) at each location. Cellmark also performed a series of experiments with the use of positive controls and standard quality control measures. In particular, Cellmark performed experiments on mixed DNA samples from two sources. After conducting its validation studies, Cellmark concluded that the process produced valid reproducible results. In October of 1999, Cellmark presented a poster display entitled, `Validation of the AmpFISTR, Profiler Plus, and Cofiler PCR Amplification Kits Using the ABE Prism 310 Genetic Analyzer,' at the Tenth International Symposium of Human Identification in Florida.
Maddox testified that studies on the capillary electrophoresis process began as early as 1993 or 1994. During his testimony, Maddox also referred to a paper entitled "Capillary Electrophoresis STR Analysis: Comparison to Gel-based Systems," which was published in the Journal of Forensic Science in 1998. According to the paper, capillary electrophoresis and gel electrophoresis produced the same results. Specifically, the use of the florescent labeling or tagging system of capillary electrophoresis began as early as 1993, as evidenced by a paper published in that year in the Journal of BioTechniques with the title "DNA Typing with Flourescently Tagged Short Tandem Repeats: A Sensitive and Accurate Approach to Human Identification." Maddox also referred to other publications, including an article written by Bruce McCord and Eric Buel, entitled "Capillary Electrophoresis in Forensic Biology."
According to Maddox, the use of capillary electrophoresis is varied and widespread. The process is used not only in forensics, but also in cancer research, genetics, and other practical applications requiring human identification.
Maddox opined that the technique of capillary electrophoresis is generally accepted within the scientific community. When asked to compare capillary electrophoresis *266 with gel electrophoresis, Maddox explained that capillary electrophoresis is more reliable and produces consistent, reproducible results.
Persuaded by the prosecution's expert witness, the trial court concluded that capillary electrophoresis is generally accepted within the scientific community. The court also concluded that any issues pertaining to the interpretation of the DNA test results for the multiple source DNA sample should be decided by the jury.
As the trial court below, we are persuaded by the prosecution's expert witness. Testimony from even one expert witness may establish general acceptance within the scientific community.[58] Based on his participation in the validation studies conducted at Cellmark, Maddox testified concerning the procedures used to ensure that the mechanism produced consistent results, meaning results that were reproducible when repeated through the same mechanism and results that were analogous to those obtained through gel electrophoresis. Maddox also testified that capillary electrophoresis was widely used in forensic DNA testing. In arriving at his conclusion that capillary electrophoresis was generally accepted, Maddox relied on numerous publications and studies.
Criminalist Daniel Gregonis reviewed Cellmark's DNA test results. Gregonis concluded that the STR methods used by Cellmark in this case were generally accepted within the scientific community.
In the Utah case, State v. Butterfield,[59] the court noted that "the scientific literature presented on appeal appears to be unanimous in its approval of the general principle of identifying STRs by capillary electrophoresis."[60] The Utah court listed the following publications: Eric Buel et al., Capillary Electrophoresis STR Analysis: Comparison to Gel-Based Systems, 43 J. Forensic Sci. 164, 169 (1998); Huong Le et al, Capillary Electrophoresis: New Technology for DNA Diagnosis, 30 Pathology 304, 306 (1998); John A. Luckey et al., High Speed DNA Sequencing by Capillary Electrophoresis, 18 Nucleic Acids Res. 4417, 4417 (1990); Timothy D. Kupferschmid et al, Maine Caucasian Population DNA Database Using Twelve Short Tandem Repeat Loci 44 J. Forensic Sci. 392, 392, 394 (1999); Cecelia A. Crouse et al., Analysis and Interpretation of Short Tandem Repeat Microvariants and Three-Banded Allele Patterns Using Multiple Allele Detection Systems, 44 J. Forensic Sci. 87, 87-88 (1999); Toshimichi Yamamoto et al, Allele Distribution at Nine STR LociD3S1358, vWA FGA, TH01, TPOX, CSF1PO, D5S818, D13S317 and D7S820in the Japanese Population by Multiplex PCR and Capillary Electrophoresis, 44 J. Forensic Sci. 167, 167 (1999); Jeanette M. Wallin et al., TWGDAM Validation of the AmpFISTR Blue PCR Amplification Kit for Forensic Casework Analysis, 43 J. Forensic Sci. 854, 868 (1998); Marcia LaFountain et al, Validation of Capillary Electrophoresis for Analysis of the X-Y Homologous Amelogenin Gene, 43 J. Forensic Sci. 1188, 1188, 1193 (1998).[61]
The Utah court also noted that many forensic laboratories around the country use capillary electrophoresis and, in particular, the 310 genetic analyzer. Among them are the Forensic Science Association, *267 SERI, Reliagene, the California Department of Justice, and Intermountain Forensic Science.[62] Each of these laboratories has "undergone validation studies, proficiency testing, and internal and external audits ...." in using the 310 genetic analyzer.[63]
Based on expert testimony, the scientific literature, and the validation studies, the Utah court took judicial notice of the inherent reliability of the use of the instrumentation, namely, the 310 genetic analyzer, in the performance of PCR/STR DNA testing.[64]
Our independent review of the trial testimony, including the description of the validation studies performed at Cellmark and the discussion of the sampling of literature available on the subject, leads to the conclusion that capillary electrophoresis has gained general acceptance in the scientific community. The evidence of additional publications and studies in the Utah case provides further support for our conclusion.[65] It is apparent that, since its introduction to the world of forensic science, capillary electrophoresis and its various permutations have gained not only general acceptance, but also have become the method of choice for DNA testing under certain circumstances.
C. Multiple Source DNA Sample
We turn now to defendant's specific claim that the trial court erred in finding that the use of capillary electrophoresis in testing multiple or mixed source DNA samples was generally accepted within the relevant scientific community under the first prong of Kelly.
During the trial, criminalist Daniel Gregonis testified that he tested the substance found on Maria's left inner thigh. Because of the small sample size, Gregonis used the PCR, as opposed to the RFLP, method of DNA analysis. Based on the PCR analysis at two DNA locations, namely, DQ-Alpha and D1S80, Gregonis found that the sample contained a mixture of DNA from at least two individuals. If the sample contained only Maria's DNA and one other person's DNA, Gregonis concluded that neither defendant, Gee, nor Junor could have been the potential donor. However, if the sample contained Maria's DNA and a combination of DNA from two or more individuals, then all three men could have been potential donors. Gregonis testified that the sample more likely contained a mixture of DNA from two or more individuals. The DNA profile found in the sample appears, at best, in one in 21 African American men.
A Cellmark employee, Kimberly Duncan, also tested the DNA extracted from the substance found on Maria's left inner thigh. Duncan applied the PCR/STR method of amplifying the DNA and the capillary electrophoresis method of analyzing the amplified DNA fragments. Maddox concluded that the sample contained sperm DNA from at least two individuals. In reaching this conclusion, Maddox noted that, while one individual can produce a maximum of two peaks, some DNA locations indicated four peaks. Maddox concluded that defendant could not be excluded as a potential donor. The frequency that the DNA profile would appear in the *268 African American population was one in 76,000.
Gregonis concluded that Cellmark's results from the capillary electrophoresis technique of DNA testing were consistent with his own results. Gregonis testified that Cellmark's conclusions, including the frequency calculation, were appropriately conservative.
Defendant argues that the prosecution's evidence concerning capillary electrophoresis analysis of the DNA sample extracted from the substance on Maria's left inner thigh was inadmissible because the use of this new technology on mixed DNA samples has not gained general acceptance in the scientific community.
As previously stated, Kelly first prong analysis only applies to a new technique or procedure.[66] Although capillary electrophoresis is a new technique for which first prong analysis is appropriate, capillary electrophoresis on a particular type of DNA sample does not constitute a different scientific technique. Rather, it involves a technique, which has gained general acceptance, as applied to a particular set of circumstances. DNA analysis of a mixed sample is more akin to the testing of a degraded or compromised sample.[67] Under such circumstances, the relevant inquiry is not whether the procedure is generally accepted within the scientific community, but whether the approved procedure was followed correctly in this instance. "When, as in DNA testing, the reliability of the technique employed is not readily apparent to lay observation or experience, Kelly-Frye requires determination `whether a laboratory has adopted correct, scientifically accepted procedures' for conducting the test. [Citation.] `Consideration and affirmative resolution of these questions constitutes a prerequisite to admissibility under the third prong of Kelly.' [Citation.]"[68]
The third prong of Kelly is case specific.[69] It requires that the court determine whether the scientifically accepted procedures actually were followed in a particular case.[70] A trial court's Kelly third prong determination is entitled to deference and must be upheld unless the record reveals that the court abused its discretion.[71]
In this case, the trial court, after hearing only Taylor's testimony, tentatively found that the procedures used by Cellmark and the evaluation of the DNA test results presented questions for the finder of fact. In its final ruling, the court found that it was for the jury to decide the credibility of the expert's testimony and the results of capillary electrophoresis analysis of the mixed DNA sample. Although the trial court did not make an explicit finding as to whether Cellmark applied the correct procedures in performing capillary electrophoresis analysis of the mixed DNA sample, we affirm the court's implied finding, which was evident in the court's approval of the reliability and general *269 scientific acceptance of the procedures.[72]
Substantial evidence supports the court's implied finding. Maddox testified that Cellmark performed the DNA analysis of the mixed DNA sample obtained from the stain on Maria's left inner thigh using the same standard procedures applied to any DNA sample. In describing these procedures, Maddox testified that Cellmark observes rigid quality control measures. For instance, when Cellmark receives evidence, only one piece of evidence is opened at a time to prevent contamination or cross-contamination with different samples. Another measure to avoid contamination is the use of two separate rooms, one to amplify the DNA sample and one to analyze the amplified DNA by the use of the 310 genetic analyzer.
Maddox testified that mixed samples might involve more complications with stutter. Maddox, however, stated the problems presented by stutter in mixed samples are taken into consideration.
Before the jury, Maddox described the actual procedures performed by a qualified scientist, Kimberly Duncan, in testing the mixed DNA sample for this case. After the extraction and the PCR amplification steps, the amplified DNA, which has been mixed with primers, is placed into the 310 genetic analyzer for analysis. The DNA travels through a very thin tube or capillary. The DNA segments separate by size as the smaller segments traveling faster through the capillary. As the segments pass through a window, the machine reads the primers or fluorescent tags, which reflect different colored lights. The machine records the data as peaks on the electropherogram.
After testing the mixed DNA sample from the stain on Maria's left inner thigh, Maddox noticed numerous different peaks, which indicated that something was unusual. In such instances, Cellmark usually reamplifies the original DNA sample and performs the entire process over to ensure that the controls worked effectively. Maddox testified that there was nothing wrong in the actual testing process; in other words, there was no indication of contamination.
Maddox's testimony provided substantial evidence that Cellmark performed the capillary electrophoresis of the mixed DNA sample in accordance with its standard procedures. The trial court therefore did not abuse its discretion in impliedly finding that Cellmark used the correct scientific procedures in this case.
As the court also found, the ultimate determination as to whether the DNA test results were persuasive or helpful in establishing defendant's guilt was a question for the jury. The question concerned the weight, not admissibility, of the evidence.[73] In this case, the jury heard DNA evidence from Gregonis and Maddox. While some of the evidence pinpointed exactly the individual responsible for certain DNA samples (for example, DNA from the vaginal swab of Marisa matched Hill with the statistical frequency of one in six million), other evidence provided less certain results (for example, defendant could not be excluded as one of multiple donors of the mixed DNA sample from the swab of the stain on Maria's inner thigh with a statistical frequency of one in 76,000 people). *270 Lay jurors can easily distinguish and assign weight based on the description of the results obtained from the DNA testing. Thus, the court properly admitted the evidence for the jury's consideration.
In summary, based on the material change in the scientific community as perceived by the law, DNA testing, particularly PCR/STR method of DNA testing, by capillary electrophoresis involves a new technique that required a determination as to whether it was generally accepted within the relevant scientific community under the first prong of Kelly. Based on our independent review of the prevailing law and the evidence presented in this case, we conclude that capillary electrophoresis has gained general acceptance as a fast and accurate method of forensic DNA testing. We also conclude that the trial court properly admitted the evidence of the capillary electrophoresis testing of the DNA sample obtained from the stain on Maria's left inner thigh.
5.-6.[***]
7. Disposition
We affirm in part and we reverse in part. We remand to the trial court and direct the court to strike the parole revocation fine and recalculate defendant's custody credits. We also direct the trial court to send a copy of defendant's amended abstract of judgment to the Department of Corrections. In all other respects, we affirm defendant's convictions.
We concur: RAMIREZ, P.J., and McKINSTER J.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for
[1] All further statutory references will be to the Penal Code unless otherwise stated.
[2] On April 27, 1992, defendant pled guilty to the crimes arising out of the Whiskey Creek incident and served an eight-year prison sentence.
[3] Section 187, subdivision (a).
[4] Sections 664 and 187, subdivision (a).
[5] Section 207, subdivision (a).
[6] Sections 207, subdivision (a), and 209, subdivision (b)(1).
[7] Section 261, subdivision (a)(2).
[8] Section 288a, subdivision (c).
[9] Section 264.1.
[10] Section 288a, subdivision (d).
[11] Section 12022, subdivision (a)(1).
[12] Section 12022.5, subdivision (a).
[13] Section 12022.3, subdivision (b).
[**] See footnote *, ante.
[28] People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (hereafter, Kelly) approving the standard established in Frye v. United States (D.C.Cir.1923) 293 Fed. 1013, 1014; see People v. Leahy (1994) 8 Cal.4th 587, 612, 34 Cal.Rptr.2d 663, 882 P.2d 321.
[29] Kelly, supra, 17 Cal.3d at page 30, 130 Cal.Rptr. 144, 549 P.2d 1240; People v. Venegas (1998) 18 Cal.4th 47, 76, 74 Cal.Rptr.2d 262, 954 P.2d 525.
[30] People v. Leahy, supra, 8 Cal.4th at page 605, 34 Cal.Rptr.2d 663, 882 P.2d 321.
[31] People v. Kelly, supra, 17 Cal.3d at page 32, 130 Cal.Rptr. 144, 549 P.2d 1240; see also People v. Venegas, supra, 18 Cal.4th at page 76, 74 Cal.Rptr.2d 262, 954 P.2d 525.
[32] People v. Hill (2001) 89 Cal.App.4th 48, 57, 107 Cal.Rptr.2d 110, (hereafter Hill) quoting People v. Morganti (1996) 43 Cal.App.4th 643, 663, 50 Cal.Rptr.2d 837.
[33] Hill, supra, 89 Cal.App.4th at page 57, 107 Cal.Rptr.2d 110.
[34] Hill, supra, 89 Cal.App.4th at page 57, 107 Cal.Rptr.2d 110, citing People v. Venegas, supra, 18 Cal.4th at page 79, 74 Cal.Rptr.2d 262, 954 P.2d 525 (RFLP); People v. Wright (1998) 62 Cal.App.4th 31, 34, 72 Cal.Rptr.2d 246 (PCR/Polymarker); People v. Morganti, supra, 43 Cal.App.4th at page 666, 50 Cal. Rptr.2d 837 (PCR/DQ-Alpha); and People v. Allen (1999) 72 Cal.App.4th 1093, 1100, 85 Cal.Rptr.2d 655 (hereafter Allen) (PCR/STR).
[35] People v. Axell (1991) 235 Cal.App.3d 836, 846, 1 Cal.Rptr.2d 411.
[36] People v. Venegas, supra, 18 Cal.4th at page 58, footnote 5, 74 Cal.Rptr.2d 262, 954 P.2d 525.
[37] People v. Reeves (2001) 91 Cal.App.4th 14, 28-29, 109 Cal.Rptr.2d 728 (fn.omitted).
[38] See, e.g., Hill, supra, 89 Cal.App.4th at page 57, 107 Cal.Rptr.2d 110(PCR); People v. Axell, supra, 235 Cal.App.3d at page 846, 1 Cal.Rptr.2d 411 (RFLP).
[39] People v. Reilly (1987) 196 Cal.App.3d 1127, 1137, 242 Cal.Rptr. 496.
[40] Allen, supra, 72 Cal.App.4th 1093, 85 Cal. Rptr.2d 655.
[41] Allen, supra, 72 Cal.App.4th at pages 1099-1100, 85 Cal.Rptr.2d 655, citing Com. v. Rosier (1997) 425 Mass. 807, 685 N.E.2d 739 and State v. Jackson (1998) 255 Neb. 68, 582 N.W.2d 317.
[42] Allen, supra, 72 Cal.App.4th at page 1100, 85 Cal.Rptr.2d 655.
[43] Hill, supra, 89 Cal.App.4th at page 57, 107 Cal.Rptr.2d 110.
[44] People v. Venegas, supra, 18 Cal.4th at page 59, 74 Cal.Rptr.2d 262, 954 P.2d 525.
[45] Hill, supra, 89 Cal.App.4th at page 57, 107 Cal.Rptr.2d 110.
[46] Hill, supra, 89 Cal.App.4th at page 60, 107 Cal.Rptr.2d 110.
[47] Hill, supra, 89 Cal.App.4th at page 58, 107 Cal.Rptr.2d 110.
[48] Hill, supra, 89 Cal.App.4th at pages 57-58, 107 Cal.Rptr.2d 110.
[49] See People v. Alvarez (2002) 27 Cal.4th 1161, 1176, 119 Cal.Rptr.2d 903, 46 P.3d 372.
[50] People v. Leahy, supra, 8 Cal.4th at page 605, 34 Cal.Rptr.2d 663, 882 P.2d 321; see, e.g., People v. Reeves, supra, 91 Cal.App.4th at page 31, 109 Cal.Rptr.2d 728 (finding general acceptance of product rule, final step of PCR analysis); see also People v. Morganti, supra, 43 Cal.App.4th at page 659, 50 Cal.Rptr.2d 837 (considering defendant's challenge, although ultimately rejected based on expert testimony, to agglutination inhibition testing done by questionable slide rotation method as opposed to centrifugation).
[51] United States v. Trala (D.Del.2001) 162 F.Supp.2d 336, 342.
[52] People v. Fierro (1991) 1 Cal.4th 173, 214, 3 Cal.Rptr.2d 426, 821 P.2d 1302, citing People v. Cooper (1991) 53 Cal.3d 771, 812-813, 281 Cal.Rptr. 90, 809 P.2d 865.
[53] See People v. Hart (1999) 20 Cal.4th 546, 635, 85 Cal.Rptr.2d 132, 976 P.2d 683; People v. Fierro, supra, 1 Cal.4th at page 214, 3 Cal.Rptr.2d 426, 821 P.2d 1302; People v. Cooper, supra, 53 Cal.3d at page 812, 281 Cal.Rptr. 90, 809 P.2d 865; People v. Coleman (1988) 46 Cal.3d 749, 778-779, footnote 23, 251 Cal.Rptr. 83, 759 P.2d 1260; People v. Axell, supra, 235 Cal.App.3d at page 858, footnote 9, ) Cal.Rptr.2d 411; People v. Smith (1989) 215 Cal.App.3d 19, 26-27, footnote 4, 263 Cal.Rptr. 678.
[54] People v. Brown (1985) 40 Cal.3d 512, 529, 230 Cal.Rptr. 834, 726 P.2d 516, reversed on other grounds in California v. Brown (1987) 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934; People v. Yorba (1989) 209 Cal.App.3d 1017, footnote 1, 257 Cal.Rptr. 641; People v. Morris (1988) 199 Cal.App.3d 377, 384, 245 Cal. Rptr. 52; People v. Reilly, supra, 196 Cal. App.3d at page 1137, 242 Cal.Rptr. 496.
[55] See People v. Venegas, supra, 18 Cal.4th at page 53, 74 Cal.Rptr.2d 262, 954 P.2d 525 (stating that prior decision controls unless evidence indicates material change in prevailing scientific opinion).
[56] Hill, supra, 89 Cal.App.4th at page 57, 107 Cal.Rptr.2d 110.
[57] People v. Axell, supra, 235 Cal.App.3d at page 854, 1 Cal.Rptr.2d 411.
[58] Allen, supra, 72 Cal.App.4th at page 1099, 85 Cal.Rptr.2d 655.
[59] State v. Butterfield (2001) 27 P.3d 1133.
[60] State v. Butterfield, supra, 27 P.3d at page 1144.
[61] State v. Butterfield, supra, 27 P.3d at pages 1144-1145.
[62] State v. Butterfield, supra, 27 P.3d at page 1144.
[63] State v. Butterfield, supra, 27 P.3d at page 1144.
[64] State v. Butterfield, supra, 27 P.3d at page 1144; accord, State v. Pappas (2001) 256 Conn. 854, 880, 776 A.2d 1091.
[65] People v. Axell, supra, 235 Cal.App.3d at page 854, 1 Cal.Rptr.2d 411.
[66] See People v. Leahy, supra, 8 Cal.4th at page 605, 34 Cal.Rptr.2d 663, 882 P.2d 321.
[67] See People v. Wright, supra, 62 Cal.App.4th at pages 41-43, 72 Cal.Rptr.2d 246; People v. Axell, supra, 235 Cal.App.3d 836, 862, 1 Cal. Rptr.2d 411.
[68] People v. Roybal (1998) 19 Cal.4th 481, 505, 79 Cal.Rptr.2d 487, 966 P.2d 521.
[69] People v. Venegas, supra, 18 Cal.4th at page 78, 74 Cal.Rptr.2d 262, 954 P.2d 525.
[70] People v. Venegas, supra, 18 Cal.4th at page 78, 74 Cal.Rptr.2d 262, 954 P.2d 525.
[71] See People v. Venegas, supra, 18 Cal.4th at page 91, 74 Cal.Rptr.2d 262, 954 P.2d 525; People v. Reeves, supra, 91 Cal.App.4th at page 47, 109 Cal.Rptr.2d 728.
[72] See People v. Venegas, supra, 18 Cal.4th at page 91, 74 Cal.Rptr.2d 262, 954 P.2d 525; People v. Reeves, supra, 91 Cal.App.4th at page 47, 109 Cal.Rptr.2d 728.
[73] See People v. Morganti, supra, 43 Cal. App.4th at page 664, footnote 12, 50 Cal. Rptr.2d 837.
[***] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261816/ | 152 Pa. Commonwealth Ct. 277 (1992)
618 A.2d 1202
CRAWFORD CENTRAL SCHOOL DISTRICT
v.
PENNSYLVANIA LABOR RELATIONS BOARD and Crawford Central Education Association.
Appeal of PENNSYLVANIA LABOR RELATIONS BOARD, Appellant.
Commonwealth Court of Pennsylvania.
Argued October 23, 1992.
Decided December 18, 1992.
*278 James L. Crawford, for appellant.
Emil M. Spadafore, Jr. and John J. Barber, for appellee.
Before CRAIG, President Judge, McGINLEY, Judge, and NARICK, Senior Judge.
NARICK, Senior Judge.
The Pennsylvania Labor Relations Board (PLRB) and the Crawford Central Education Association (Union), Intervenor, appeal from the order of the Court of Common Pleas of Crawford County that reversed the PLRB's order, which held that the Crawford Central School District (District) had committed *279 an unfair labor practice for failure to comply with an arbitration award. We reverse.
From August 29, 1986, until August 28, 1989, the Union and the District were parties to a collective bargaining agreement (CBA). Article VI, Section (B)(5) of the CBA states that: Secondary teachers shall not be required to teach more than three (3) subject areas or no more than a total of three (3) teaching preparations. This provision will not be applicable to minicourses, modular scheduling and other programs when the teacher(s) to be affected have been consulted and agree to the implementation of such program.
Three teachers from the District filed grievances, requesting compensation for the 1988-89 school year for all preparation periods (preps)[1] in excess of the three provided for in the CBA. These grievances were consolidated and the Union sought arbitration.
After hearings, the arbitrator filed his decision, holding that the three teachers were to be compensated for their extra preps for the 1988-89 school year. The arbitrator also issued a prospective order that required the District to cease and desist from scheduling teachers to more than three preps without the consent of the individual teacher. The arbitrator retained jurisdiction over the implementation of the monetary relief awarded.[2]
*280 Subsequently, the District and the Union held discussions concerning implementation of the arbitrator's award. The three grievants were paid for their extra preps for the 1988-89 school year, but numerous teachers including two of the grievants were scheduled for extra preps for the following school year, 1989-90. In a letter, dated January 22, 1990, the District asked the arbitrator to issue a final interpretation of the award as it impacted the remuneration to teachers other than the three grievants. The District recognized that it had approximately thirty employees teaching more than three preps during the 1989-90 term.
On February 7, 1990, the arbitrator issued a remedial order setting forth the manner of payment for teachers who are assigned preps over those permitted under the CBA. The arbitrator stated: "Although this may create significant additional compensation and, therefore expense, for the District, the Agreement must be followed unless each individual teacher waives the three period maximum or the parties bargain a different provision." (167a). No appeals were taken.
The District paid no compensation to teachers with extra preps during the 1989-90 school year. In a letter, dated August 27, 1990, the District requested a response in writing from the fourteen teachers that were assigned additional preps for the 1990-91 school year. Five teachers indicated they would waive the additional compensation. The other nine teachers requested payment. However, the District has still made no payments to any teachers that have asked for the extra compensation for the extra preps.
On April 9, 1990, the Union filed an unfair labor practice charge with the PLRB, alleging that the District violated Section 1201(a)(8) of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.1201(a)(8), by failing to comply with the provisions of a binding arbitration award.
After hearing, the examiner issued a proposed decision and order, holding that the District committed an unfair labor practice by failing to comply with the arbitration award. The examiner ordered the District to cease and desist from scheduling *281 teachers to more than the three preps beginning with the 1991-92 school year. He also ordered the District to compensate teachers who taught extra preps without their consent during the 1989-90 and 1990-91 school years.
The District filed exceptions which the PLRB dismissed. However, the examiner's order was modified with respect to the District's ability to assign teachers to extra preps by allowing a teacher to expressly consent to the extra assignments.
The District appealed the PLRB's decision to the trial court, which after submission of briefs, oral argument and a review of the record, reversed. The trial court held that the District should not be held liable for failure to abide by the arbitrator's award, because the Union delayed in filing the unfair labor practice complaint and, therefore, laches must be applied. The trial court also found that the Union did not prove "anti-union animus," a factor it held was required to support an unfair labor practice violation.
The Union now appeals to this Court,[3] and raises the following issues: (1) whether the trial court erred as a matter of law in holding that laches barred the Union's unfair labor practice charge; (2) whether the trial court erred in holding that the Union, in alleging that the District failed to comply with the arbitration order, needed to prove that the District was motivated by anti-union animus or that it acted in willful disregard of the arbitration award; and (3) whether the PLRB's findings, concerning the District's failure to comply with the arbitrator's award, are based on substantial evidence.
*282 The Union sets forth three reasons why the trial court's determination, that laches bars the Union's unfair labor practice charge, is erroneous. They are that: (1) laches is an equitable doctrine, not assertable as a defense in an action at law or in an administrative proceeding, both of which are governed by applicable statutes of limitations; (2) laches is a factual determination to be made by the fact finder, the PLRB in this case, and not by the trial court in its role as an appellate court; and (3) if laches is found to be applicable here, the findings by the trial court are contrary to the record evidence.
We agree with the Union's position. In Appeal of Churchill Area School District, 30 Pa.Commonwealth Ct. 413, 415, n. 1, 374 A.2d 1000, 1002, n. 1 (1977), the Court stated that: [W]hile administrative discretion should be exercised in equitable fashion, the equitable doctrine of laches . . . [is] not for application in administrative proceedings just as [it is] not for application in actions at law.
The applicable statute of limitations, found at Section 1505 of PERA, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.1505, provides for a four-month period in which a charge may be filed. The trial court found that the Union waited seven months, from July 14, 1989, the date of the arbitrator's initial decision, before it filed its charge with the PLRB on April 9, 1990. By making this determination, the trial court completely disregarded the District's request[4] for a *283 remedial order from the arbitrator. In the letter, the district acknowledged its responsibility to pay teachers who are assigned more than three preps and only questioned the method of calculation. It was subsequent to the arbitrator's remedial order, dated February 7, 1990, that the Union realized that the District would not comply with the arbitration award. Thus only two months passed since the occurrence of acts that gave rise to the Union's filing of the unfair labor practice charge.
The trial court also disregarded the constraints of its scope of review, which is limited, as is ours. The question of laches is a factual determination. Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988). Since the PLRB is the fact finder, the trial court erred in making the laches determination. Midland Borough. In fact, we note that laches as an affirmative defense was never mentioned by the parties. Therefore, the trial court improperly raised the defense sua sponte.
The Union next argues that the trial court erred in requiring proof of unlawful motive or anti-union animus on the District's part and that the violation of PERA must be willful. Under PERA, the complainant has the burden of proving the alleged charges. State System of Higher Education v. Pennsylvania Labor Relations Board, 107 Pa.Commonwealth Ct. 151, 528 A.2d 278 (1987).
[W]hen a complainant in a charge of unfair labor practice alleges refusal to comply with the provisions of an arbitration award deemed binding, the Board must determine: 1) if the award exists; 2) if the appeal procedure available to the party under the rule has been exhausted; and then 3) whether the party has failed to comply with the provisions of the arbitrator's decision.
Id. at 157, 528 A.2d at 281.
There is no question that the award exists and that the correct appeal procedures were followed. The issue remaining is one of compliance and, as argued by the Union, there is no requirement of proof of anti-union animus or willful non-compliance *284 with the arbitrator's award. So long as the PLRB's interpretation of the arbitrator's award is supported by the record, not violative of constitutional rights or contrary to the law, it should be affirmed. Id. The trial court applied an improper standard of proof, when it held that the Union failed to establish anti-union animus or willful disregard of the arbitration award.
The Union's last argument concerns the third prong of the test articulated in State System. The Union argues that if the PLRB's findings that the District failed to comply with the arbitration award is based on substantial evidence, the trial court may reverse that decision only if the conclusion drawn from those facts is unreasonable. Our review of the record reveals that the PLRB's findings are based on substantial evidence. Furthermore, we hold that the PLRB's conclusion was not unreasonable nor was it capricious, arbitrary or illegal.
Accordingly, based on the above discussion, we reverse the trial court's order and reinstate the order of the PLRB.
ORDER
AND NOW, this 18th day of December, 1992, the order of the Court of Common Pleas of Crawford County is hereby reversed and the order of the Pennsylvania Labor Relations Board is reinstated.
NOTES
[1] A teaching prep is any class for which a teacher must prepare a separate and distinct lesson plan.
[2] The arbitrator stated in the Interim Award that:
The Grievances are granted. The Grievants are to be compensated for their extra teaching load as calculated in Article VI(B)(3) for the 1988-89 school year. The District must Cease and Desist from scheduling teachers to more than three teaching preparations without the consent of the individual teacher.
The Arbitrator retains jurisdiction over the implementation of the monetary remedy and relief awarded to Grievants. Either party may Petition the Arbitrator for a Final Award specifying the exact dollar amount due each Grievant. (164a).
In addition, the decision contains the following pertinent language:
This decision and award is therefore binding only as it applies to the parties in the instant case and to incidents which arise prospectively. The Award should not be applied to other teachers who fulfilled their 1988-89 school year schedule without filing grievances. (Emphasis added.) (164a).
[3] Although the trial court conducted a review of the case, the PLRB is the finder of fact, and thus our review centers on its findings. Midland Borough School District v. Pennsylvania Labor Relations Board, 126 Pa.Commonwealth Ct. 537, 560 A.2d 303 (1989) petition for allowance of appeal denied, 525 Pa. 651, 581 A.2d 576 (1990). Our scope of review is narrow and is limited to a determination of whether the findings of the PLRB are supported by substantial evidence and whether the conclusions drawn from those facts are reasonable and not capricious, arbitrary or illegal. Abington Transportation Association, PSSPA/PSEA v. Pennsylvania Labor Relations Board, 131 Pa.Commonwealth Ct. 267, 570 A.2d 108 (1990).
[4] The District's letter, dated January 22, 1990, states as follows:
This letter is to request final interpretation of the grievance award regarding extra preparations in the Crawford Central School District. The Crawford Central School District recognizes the compensation plan designed for Ms. Peters, Ms. Williams, and Mr. Cressley, but remuneration to other employees continues to be a significant question.
The School District currently has approximately 30 employees teaching more than three preparations. The cost for extra preparations as calculated by Article VI(B)(3) is in excess of $60,000. The question that needs to be answered is this. Does a teacher receive double or triple the calculation in Article VI(B)(3) if the teacher has more than four preparations? The cost may total $100,000 if all employees are paid for each preparation beyond three preparations according to Article VI(B)(3). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261818/ | 861 F.Supp. 1086 (1994)
Craven WATSON, Plaintiff,
v.
UNION CAMP CORPORATION, Defendant/Third Party Plaintiff,
v.
PIPING SYSTEMS, INC. and Richard Barrow, Third Party Defendants.
No. CV493-124.
United States District Court, S.D. Georgia, Savannah Division.
August 22, 1994.
*1087 Noble L. Boykin, Jr., Savannah, GA, for plaintiff.
Francis S. Exley, Savannah, GA, for Union Camp.
George L. Lewis, Savannah, GA, for Piping Systems and Barrow.
ORDER AND MEMORANDUM
NANGLE, District Judge.
Before the Court are several motions for summary judgment relating to the third-party action between defendant/third-party plaintiff Union Camp Corporation ("Union Camp") and third-party defendants Piping Systems, Inc. ("PSI") and Richard Barrow: (1) Union Camp's motion for partial summary judgment on the issue of indemnity; (2) PSI and Barrow's cross-motion for partial summary judgment on the issue of indemnity; and (3) PSI and Barrow's motion for summary judgment on the issue of release. Union Camp seeks a holding from the Court that PSI and Barrow must indemnify Union Camp from liability in the instant action pursuant to a construction contract between Union Camp and PSI and a release agreement between Union Camp, PSI, and Richard Barrow. PSI and Barrow request a holding that a separate release agreement relieves them from the duty to indemnify Union Camp, or, alternatively, that the indemnification provisions in these documents are invalid. Because the Court finds that the separate release agreement relieves PSI and Barrow from any indemnification obligations to Union Camp, it will grant summary judgment in favor of the third party defendants.[1]
FACTUAL BACKGROUND
In 1993, plaintiff Craven Watson, an employee of PSI, filed an action to recover for injuries allegedly sustained in an explosion that occurred on May 10, 1991 at the Union *1088 Camp plant in Savannah, Georgia.[2] At the time of the accident, Watson was working on the Union Camp premises under an agreement labelled "Construction Contract" between Union Camp and PSI (the "contract") as part of an odor abatement project at the plant. The contract required PSI to install a "vent collection system" at the plant, involving, among other things, demolishing an existing storage tank and piping and installing prefabricated tanks and piping. (Contract Ex. A at 1.) Union Camp contends that the explosion involving Watson resulted from the failure of PSI employees or subcontractors to comply with Union Camp rules and practices, in breach of a provision in the contract requiring PSI to "[c]ause its employees, agents and subcontractors to comply with Union Camp's plant rules and practices while such persons are upon any premises of Union Camp." (Contract at 5 ¶ 7(d)(3).)
Union Camp asserts that PSI should indemnify it for any liability incurred in this action, along with costs and attorney fees, pursuant to an indemnification provision of the contract. That provision reads, in full:
11. Indemnification:
Contractor at all times will indemnify, release, protect, defend and hold Union Camp harmless from and against any and all loss, liability, expenses, claims, or demands arising from personal injury (including death at any time resulting therefrom), property damage, or damage of whatever nature to any person, including Contractor or Union Camp, occurring as a direct or indirect result of, or in any manner connected with the performance of this Contract, whether such injury or damage shall be caused by the acts, omissions or negligence of Contractor, Contractor's employees, Contractor's subcontractors, or employees of any of Contractor's subcontractors hereunder and Contractor shall at its expense defend any and all actions based thereon and shall pay all charges of attorneys and all costs and other expenses arising therefrom.
(Contract at 7 ¶ 11.)
Union Camp further seeks indemnification from both PSI and Richard Barrow under a release agreement dated March 27, 1992 (the "PSI release"). In this agreement, PSI and Barrow discharge Union Camp from all claims arising out of the construction contract, waive any subrogation rights against Union Camp, and agree "to protect, defend and indemnify and hold Union Camp Corporation harmless from and against any claims" connected with the construction contract. (PSI Release at 1.)
PSI and Barrow respond that the indemnification provisions of the construction contract and the PSI release are invalid under Georgia law. They further respond that a second release agreement, signed by Union Camp and dated March 27, 1992 (the "Union Camp release"), prevents Union Camp from pursuing any claims arising out of the May 10, 1991, accident at the Union Camp plant. The Union Camp release discharges PSI and Barrow from "any and all claims ... from any act or occurrence up to the present time, and particularly on account of all property damage, loss suffered, or damages of any kind sustained as a result of an accident that occurred on or about the 10th day of May, 1991." (Union Camp Release at 1.) PSI and Barrow request that the Court grant summary judgment in their favor on the basis of the Union Camp release.
DISCUSSION
I. SUMMARY JUDGMENT STANDARD
A court may grant a motion for summary judgment only when the pleadings, depositions, and affidavits submitted by the parties indicate no genuine issue of material fact and show that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the evidence and any inferences that may be drawn from it in the light most favorable to the nonmovant. Mercantile Bank & Trust Co. v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985). If the party seeking summary judgment identifies grounds demonstrating the absence of a genuine issue of material fact, *1089 the nonmovant must go beyond the pleadings and present affirmative evidence showing that a genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986); Thompson v. Metropolitan MultiList, Inc., 934 F.2d 1566, 1583 n. 16 (11th Cir.1991), cert. denied sub nom. DeKalb Bd. of Realtors, Inc. v. Thompson, ___ U.S. ___, 113 S.Ct. 295, 121 L.Ed.2d 219 (1992).
II. THE UNION CAMP RELEASE IS VALID AND DISCHARGES THE INDEMNIFICATION OBLIGATIONS OF PSI AND BARROW
On March 27, 1992, Union Camp signed a general release that discharged PSI from liability for "any and all claims ... arising from any act or occurrence up to the present time, and particularly on account of all property damage, loss suffered, or damages of any kind sustained as a result of [the] accident." (Union Camp Release at 1.) PSI and Barrow contend that, as a matter of law, this release relieves them from any liability arising from the accident involving Craven Watson. The Court agrees.
A. General rules of contract interpretation in Georgia.
General rules of construction governing ordinary written contracts also govern releases. U.S. Anchor Mfg. v. Rule Indus., 264 Ga. 295, 443 S.E.2d 833, 835 (1994); Thomaston v. Fort Wayne Pools, 181 Ga. App. 541, 352 S.E.2d 794, 795 (1987). In Georgia, the interpretation of a contract is ordinarily a question of law. O.C.G.A. § 13-2-1; Sakas v. Jessee, 202 Ga.App. 838, 415 S.E.2d 670, 672 (1992). When interpreting a contract, a court must determine: (1) whether the contract is ambiguous; and (2) whether applicable rules of construction remove the ambiguity. Smith v. Seaboard Coast Line R.R. Co., 639 F.2d 1235, 1239 (5th Cir. Unit B Mar. 1981) (per curiam)[3]; Travelers Ins. Co. v. Blakey, 255 Ga. 699, 342 S.E.2d 308, 309 (1986) (per curiam); Tidwell v. Carroll Builders, 251 Ga. 415, 306 S.E.2d 279, 281 (1983). "Construction of written contracts, even if they are ambiguous, is a matter for the court and no jury question arises unless after application of applicable rules of construction the ambiguity remains." Chalkley v. Ward, 119 Ga.App. 227, 166 S.E.2d 748, 754 (1969); see also, e.g., Smith v. Seaboard Coast Line, 639 F.2d at 1239; Blakey, 342 S.E.2d at 309; Hardin v. Great N. Nekoosa Corp., 237 Ga. 594, 229 S.E.2d 371, 373 (1976); Archer v. Carson, 213 Ga.App. 161, 444 S.E.2d 82, 84 (1994); Andrews v. Skinner, 158 Ga.App. 229, 279 S.E.2d 523, 525 (1981).
In Georgia, "[t]he cardinal rule of [contract] construction is to ascertain the intention of the parties." O.C.G.A. § 13-2-3; Head v. Hook, 248 Ga. 818, 285 S.E.2d 718, 719 (1982). The contract itself provides the only evidence of the parties' intent, Paige v. Jurgensen, 204 Ga.App. 524, 419 S.E.2d 722, 723 (1992), but a court may determine whether a contract is ambiguous as to intent. Archer, 444 S.E.2d at 84; Kusuma v. Metametrix, Inc., 191 Ga.App. 255, 381 S.E.2d 322, 323 (1989). A court may not, however, impose upon unambiguous language a different meaning to comport with the drafter's claimed intent, or use extrinsic evidence to create an ambiguity in an otherwise unambiguous contract. O.C.G.A. § 24-6-1; Stewart v. KHD Deutz of Amer., Corp., 980 F.2d 698, 702 (11th Cir.1993); Paige, 419 S.E.2d at 723; Emerson v. Cousins Mtg. & Equity Invs., 145 Ga.App. 883, 244 S.E.2d 890, 894 (1978). "[N]o construction of the contract is required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation." Sakas, 415 S.E.2d at 673 (emphasis added); see also Reuss v. Time Ins. Co., 177 Ga.App. 672, 340 S.E.2d 625, 626 (1986).
B. The Union Camp release and the PSI release, read together, are ambiguous as to the scope of the third-party defendants' obligations.
The Union Camp release, read alone, appears to relieve PSI and Barrow from any *1090 liability connected with the accident at issue in this action, including liability for Watson's claim, which Watson filed after the parties signed the release. Under Georgia law, a general release will discharge a party from liability for tortious acts of which the parties were unaware when they executed the release, so long as the release clearly expresses that intent. U.S. Anchor, 443 S.E.2d at 835. The Union Camp release expresses such an intent: It refers to "all claims" and applies to "all unknown and unanticipated damages or loss resulting from the said accident, ... as well as to damage or loss now known or disclosed." (Union Camp Release at 1.) Georgia courts have interpreted "all claims" language broadly to include unknown conduct. See Glover v. Southern Bell Tel. & Tel. Co., 229 Ga. 874, 195 S.E.2d 11, 11-12 (1972) (contrasting general release, barring any cause of action, with "a release that by its terms relates solely to designated property damage"); Aetna Cas. & Surety Co. v. W.G. Lothridge Contracting Co., 163 Ga.App. 731, 296 S.E.2d 83, 83 (1982) (holding release of "all claims" does not limit itself to claims to which it specifically refers). The "all claims" language in the Union Camp release thus extends to Watson's claim and appears to relieve PSI and Barrow from any liability in connection with Watson's action.
Union Camp, however, has presented the Court with a second release signed March 27, 1992, the PSI release, that creates an ambiguity when read alongside the Union Camp release. A court may not use extrinsic evidence to vary the terms of or otherwise render ambiguous a written contract. E.g., O.C.G.A. § 24-6-1; Citizens & S. Trust Co. (Ga.), N.A. v. Johnson, 201 Ga.App. 464, 411 S.E.2d 543, 544 (1991); see also Kusuma, 381 S.E.2d at 323 ("Ambiguity cannot be created merely by ingenuity of counsel.") A court, however, should read and construe together two contemporaneous instruments executed as part of the same transaction. Ameritrust Co., N.A. v. White, 848 F.Supp. 1001, 1004 (N.D.Ga.1994); Hardin, 229 S.E.2d at 374; Rizk v. Jones, 243 Ga. 545, 255 S.E.2d 19, 20 (1979) (per curiam); B & C Tire & Battery, Inc. v. Cooper Tire & Rubber Co., 212 Ga. App. 228, 441 S.E.2d 468, 469 (1994); Georgia Highway Express, Inc. v. United Parcel Serv., 164 Ga.App. 674, 297 S.E.2d 497, 498 (1982). The Union Camp release and the PSI release both concern the allocation of liability between the parties and were executed on the same day; the Court, therefore, will read these releases together and will consider them as a single contract in determining whether an ambiguity exists.
The meaning of the PSI release and the Union Camp release is ambiguous when the two releases are read together. "[A] word or phrase is ambiguous only when it is of uncertain meaning and may be fairly understood in more ways than one." Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783, 787 (1947); see also Walton v. Datry, 185 Ga. App. 88, 363 S.E.2d 295, 300 (1987) (quoting Dorsey); Tarbutton v. Duggan, 45 Ga.App. 31, 163 S.E. 298 (1932) (describing ambiguous contract as duplicitous, indistinct, and uncertain). The Union Camp release and the PSI release contain directly contradictory language. While the Union Camp release extinguishes any liability of PSI or Barrow towards Union Camp, the PSI release obligates PSI and Barrow "to protect, defend and indemnify and hold Union Camp Corporation harmless from and against any claims ... arising out of or connected with ... the above-referenced contract whether ... based on contract, tort, or other theory of liability." (PSI Release at 1.) This conflicting language casts an ambiguity upon whether PSI and Barrow have an obligation to indemnify Union Camp. Cf. CMS Indus. v. L.P.S. Int'l, Ltd., 643 F.2d 289, 294 (5th Cir. Unit B Apr. 1981) (finding intent unclear where contemporaneous contracts contained directly conflicting provisions).
C. The terms of the Union Camp release govern since the PSI release is void under Georgia law.
The Court need not resolve the ambiguity created by the direct conflict between the PSI release and the Union Camp release, however, since the indemnification provision of the PSI release is void under Georgia law. Public policy in Georgia prohibits contracts related to the construction or maintenance of a building that purport to *1091 indemnify a party for that party's sole negligence. O.C.G.A. § 13-8-2(b); see also Smith v. Seaboard Coast Line, 639 F.2d at 1242; Kemira, Inc. v. A-C Compressor Corp., 755 F.Supp. 1059, 1069-70 (S.D.Ga. 1991); National Candy Wholesalers, Inc. v. Chipurnoi, Inc., 180 Ga.App. 664, 350 S.E.2d 303, 304 (1986). The PSI release states:
Piping System Inc. [sic] and Richard Barrow, individually, ... agree to protect, defend and indemnify and hold Union Camp Corporation harmless from and against any claims, demands, or causes of action by any person or entity arising out of or connected with, directly or indirectly, the above-referenced contract whether such claim, demand or cause of action is based on contract, tort, or other theory of liability.
(PSI Release at 1.) The Court finds that the PSI release falls squarely within the public policy prohibition of section 13-8-2(b).[4]
The PSI release pertains to the maintenance or construction of a building. In Georgia, the definition of a "building" varies according to the particular facts and statutory language at issue. Randall v. Atlanta Advertising Serv., 159 Ga. 217, 125 S.E. 462 (1924). Section 13-8-2(b) extends to contracts "relative to the construction, alteration, repair, or maintenance of a building structure, appurtenances, and appliances, including moving, demolition, and excavating connected therewith." O.C.G.A. § 13-8-2(b). The indemnification provision of the PSI release relates to the construction contract between Union Camp and PSI, which covers work involved in installing a vent collection system at the plant. This work includes demolishing an existing tank and piping, installing new tanks and piping, erecting steel platforms, stairs, ladders, and grating, and excavating and constructing concrete foundations, (Contract Ex. A at 1), and clearly pertains to appurtenances and appliances connected with a building, if not to a building itself. See Black's Law Dictionary (6th ed. 1990) (defining "appurtenance" as an adjunct, appendage, or annexation, likened to "an outhouse, barn, garden, or orchard").
The Court further finds that the indemnification provision of the PSI release purports to shield Union Camp from liability for its sole negligence. Two conflicting lines of authority exist in Georgia concerning the extent to which a contract must express an intent to indemnify a party against his sole negligence to be in violation of section 13-8-2(b) or its predecessor, Ga.Code Ann. § 20-504. See Morgan v. Westinghouse Elec. Corp., 579 F.Supp. 867, 869-70 (N.D.Ga.1984), aff'd, 752 F.2d 648 (11th Cir.1985). Numerous decisions of the Georgia Court of Appeals have refused to hold that the parties to an indemnification agreement intended to protect each other against their own sole negligence absent clear indication to the contrary. E.g., Batson-Cook Co. v. Georgia Marble Setting Co., 112 Ga.App. 226, 144 S.E.2d 547, 552 (1965); see also Buffington v. Sasser, 184 Ga.App. 800, 363 S.E.2d 2, 6 (Ga.App.1987) (refusing to find indemnification provision referring to "any and all liabilities" void under section 13-8-2(b), since "[i]t does not expressly apply to damage caused by [indemnitee's] own negligence"); Seaboard Coast Line R.R. Co. v. Union Camp Corp., 145 Ga.App. 417, 243 S.E.2d 631, 633 (1978) (finding it "quite obvious" that indemnification against "any and all loss" did not extend to indemnitee's own negligence). Furthermore, the Georgia Court of Appeals has held that an indemnification provision functionally identical to the one at issue did not purport to indemnify a party from his sole negligence. See Georgia State Tel. Co. v. Scarboro, 148 Ga.App. 390, 251 S.E.2d 309, 310 *1092 (1978) (interpreting provision that read: "The contractor shall save harmless the telephone company from and indemnify it against all claims and suits for injury or damage to any person or property whatsoever, including death, which may arise in or result from the performance of the work covered by this contract." (emphasis added)).
The Georgia Supreme Court, however, has held that the phrase "any claim" includes claims for the indemnitee's sole negligence, even if the agreement does not expressly cover sole negligence. Frazer v. City of Albany, 245 Ga. 399, 265 S.E.2d 581, 583 (1980). The Frazer court considered two provisions of a lease agreement:
Section 6.9 of the lease provides: "The City shall indemnify and save the Authority and Trustee harmless against and from all claims by and on behalf of any person, firm or corporation arising from the contract or management of or from any work or thing done on the project during the Lease term ..."
Section 8.1 of the proposed lease says: "The City releases the Authority from, agrees that the Authority shall not be liable for, and agrees to hold the Authority harmless against any loss or damage to property, or any injury to or death of any person that may be occasioned by any cause whatsoever pertaining to the project or the use thereof ..."
Id. Although the lease provisions did not expressly protect the indemnitee from its sole negligence, the Frazer court found that the provisions violated Ga.Code Ann. § 20-504, which preceded O.C.G.A. § 13-8-2. Id. While not expressly overruling the earlier line of appeals court decisions, the Frazer holding has spawned a separate line of appeals court decisions in direct conflict with the earlier cases. See, e.g., Borg-Warner Ins. Fin. Corp. v. Executive Park Ventures, 198 Ga.App. 70, 400 S.E.2d 340, 341 (1990) (finding "all liability" provision purported to waive indemnitee's liability for its sole negligence), cert. granted and appeal dismissed, 405 S.E.2d 876 (Ga.1991); Chipurnoi, 350 S.E.2d at 305 (finding "all claims" language "necessarily includes claims emanating from injuries caused solely by [indemnitee's] negligence"); Big Canoe Corp. v. Moore & Groover, Inc., 171 Ga.App. 654, 320 S.E.2d 564, 565 (1984) (holding "all claims" language to be "clearly violative" of section 13-8-2(b)).
The Court finds no meaningful difference between the "all claims" language used in the indemnification provision of the PSI release and the language used in the contract held invalid by the Georgia Supreme Court in Frazer, a decision binding upon this Court. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Court therefore finds that the PSI release violates the public policy expressed in O.C.G.A. § 13-8-2(b) by impermissibly sanctioning the indemnification of Union Camp's sole negligence in a contract pertaining to the construction or maintenance of a building or its appurtenances.
The invalidity of the PSI release's indemnification provision resolves the ambiguity between the PSI release and the Union Camp release. While a court must construe an ambiguous contract to be lawful and valid if possible, Bragg v. Household Fin. Corp., 140 Ga.App. 75, 230 S.E.2d 55, 57 (1976), in the instant case the Court is faced with two conflicting provisions, one valid and the other clearly invalid. The Court will reject the invalid provision, thereby eliminating the ambiguity. Cf. CMS Indus., 643 F.2d at 295 (finding one of two contemporaneously-executed contracts to be void.)
Without the ambiguity created by the PSI release, the Union Camp release clearly discharges PSI and Barrow from their obligation to indemnify Union Camp under the construction contract.[5] The Court may not consider extrinsic evidence altering or contradicting *1093 this unambiguous language. O.C.G.A. § 24-6-1; Sakas, 415 S.E.2d at 673; Paige, 419 S.E.2d at 723. As a result, no genuine question of material fact exists, and it is appropriate for the Court to grant summary judgment in favor of PSI and Barrow. Accordingly,
IT IS HEREBY ORDERED that the motion for summary judgment on the issue of release filed by the third-party defendants be and is GRANTED.
IT IS FURTHER ORDERED that the third-party complaint be and is DISMISSED with prejudice.
NOTES
[1] The Court's grant of summary judgment to the third-party defendants on the issue of release renders moot the parties' cross-motions for summary judgment on the validity of the indemnification provisions. The Court, however, will address the issue of these provisions' validity to the extent needed in its analysis of the release issue.
[2] Watson has since settled his claim against Union Camp.
[3] The Eleventh Circuit has adopted as binding precedent all decisions of the former Fifth Circuit rendered before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
[4] Section 13-8-2(b) states:
A covenant, promise, agreement or understanding in or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair, or maintenance of a building structure, appurtenances, and appliances, including moving, demolition, and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitee is against public policy and is void and unenforceable, provided that this subsection shall not affect the validity of any insurance contract, workers' compensation, or agreement issued by an admitted insurer.
O.C.G.A. § 13-8-2(b).
[5] The Court notes that the indemnification provision found in the construction contract likely does not violate O.C.G.A. § 13-8-2(b), since it contains language limiting its scope to "injury or damage ... caused by the acts, omissions or negligence of Contractor, Contractor's employees, Contractor's subcontractors, or employees of any of Contractor's subcontractors hereunder." (Contract at 7 ¶ 11.) See Westinghouse Elec. Co. v. Williams, 183 Ga.App. 845, 360 S.E.2d 411, 413 (1987) (requiring strict construction of indemnification agreements against indemnitee); Molly Pitcher Canning Co. v. Central of Ga. Ry. Co., 149 Ga.App. 5, 253 S.E.2d 392, 395 (1979) (same). The contract's validity, however, does not affect the validity of the subsequent Union Camp release, discharging PSI and Barrow from any duty to indemnify Union Camp under the contract. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261821/ | 132 Cal.Rptr.2d 540 (2003)
107 Cal.App.4th 1097
GENERAL REINSURANCE CORPORATION et al. Plaintiffs and Respondents,
v.
ST. JUDE HOSPITAL, Defendant and Appellant.
No. G029719.
Court of Appeal, Fourth District, Division Three.
March 26, 2003.
*541 Roxborough, Pomerance & Nye, Nicholas P. Roxborough, Drew E. Pomerance and Daniel J. Yourist, Los Angeles, for Defendant and Appellant.
Barbanel, Treuer & Dantzler, Barbanel & Treuer, Alan H. Barbanel, Stephen D. Treuer and Stephen V. Kovarik, Los Angeles, for Plaintiffs and Respondents.
OPINION
O'LEARY, J.
In this case an injured employee obtained a 10 percent increase in her workers' compensation award under Labor Code section 5814[1] because her self-insured employer unreasonably delayed or refused payment of benefits. The employer's excess insurance carrier obtained a judgment declaring it was not required to reimburse the employer for the 10 percent increase because the policy excluded indemnification for payments made in excess of "benefits regularly required by the Workers Compensation Law" if such benefits were required because "the Insured violated or failed to comply with any Workers Compensation Law." The employer contends the exclusion does not apply to section 5814 benefits and the exclusion is too ambiguous and overbroad to be enforceable. We disagree and affirm.
FACTS AND PROCEDURE
The Policy
St. Jude Hospital self-insures for workers' compensation. General Reinsurance Corporation is St. Jude's excess insurance carrier. The General Reinsurance policy provides St. Jude indemnification for losses over $300,000 and defines a "loss" as "amounts actually paid by the Insured as a self-insurer under the Workers Compensation Law."
Section D of the General Reinsurance policy contains the following exclusion: "The Insurer will not indemnify the Insured for any payments made by the Insured in excess of benefits regularly required by the Workers Compensation Law[2] if such excess payments are required *542 because: [¶] (1) of serious and wilful misconduct of the Insured; [¶] (2) the Insured employed an employee in violation of law; [¶] (3) the Insured failed to comply with a health or safety law or regulation; [¶] (4) in violation of the Workers Compensation Law, the Insured discharged, coerced, or otherwise discriminated against any employee; or [¶] (5) the Insured violated or failed to comply with any Workers Compensation Law." The policy also provides "the Insurer has no duty to investigate, handle, settle or defend any claim, proceeding or suit against the Insured."
The Ballard Action
Pamela Limousin-Ballard (Ballard) was a St. Jude employee injured on the job in 1987. In 1992, Ballard and St. Jude stipulated to an award of workers' compensation benefits that contemplated payment of Ballard's future medical expenses.
In August 1994, Ballard filed a petition against St. Jude for penalties under section 5814. Apparently St. Jude's independent claims administrator, believing St. Jude was entitled to a credit for amounts Ballard had recovered from a third party, had unilaterally discontinued payment of all of Ballard's medical expenses without having first obtained authorization from the Workers' Compensation Appeals Board (WCAB).
In June 1997, a Workers' Compensation Judge (WCJ) issued an opinion and issued findings and orders on Ballard's petition. In the opinion, the WCJ explained that while there are no statutes or regulations specifying how third party credits are to be pursued, decisional authority makes clear that WCAB intervention to establish the right to such credit must be had before benefits may be withheld from an injured employee. The WCJ found St. Jude had acted unreasonably in unilaterally withholding payment of Ballard's medical expenses. St. Jude compounded the problem when, after the WCAB found St. Jude was not entitled to the credit, it continued to refuse to pay Ballard's medical expenses while it pursued appellate remedies. And, even though the Supreme Court had denied St. Jude's petition for review of the earlier decision on the credits in March 1996, St. Jude continued to deny Ballard's medical expenses for over a year; it did not recommence paying her medical expenses until April of 1997. In the findings and order, the WCJ found St. Jude had unreasonably delayed payment of medical expenses and ordered it to pay Ballard an additional 10 percent of all her medical expenses. The WCAB affirmed the WCJ's order imposing the 10 percent penalty.
The Declaratory Relief Action
General Reinsurance filed this action seeking a declaration that it was not required to indemnify St. Jude for the additional amounts it is required to pay as penalties.[3] In addition to the petition discussed above, Ballard had filed several more petitions against St. Jude for penalties under section 5814 that were pending before the WCAB. As of the time of the bench trial, section 5814 penalties paid by St. Jude amounted to $78,892.
St. Jude presented testimony of its workers' compensation claims manager that in her experience section 5814 awards were very common and she "reasonably believed" they were covered by the General Reinsurance policy. The claims manager *543 was not employed by St. Jude when the General Reinsurance policy was purchased.
St. Jude also presented expert testimony of a retired WCJ, who opined that a section 5814 award is considered to be part of "regular" workers' compensation benefits. He further opined a section 5814 award is remedial in nature (i.e., to compensate employee for delay in payment regardless of the reason for the delay), and not imposed to "punish" the employer (or its insurance company). The expert explained the WCAB had "non-statutory" rules of procedure for asserting a credit on an employee's third party recovery. He believed St. Jude had failed to follow those "non-statutory" rules in asserting its credit claim, but had not violated any workers' compensation laws.
The court ruled the policy exclusion for payments "in excess of benefits regularly required" made because "the Insured violated or failed to comply with any Workers Compensation Law" applied to the section 5814 penalties. The court rejected St. Jude's argument section 5814 penalties were simply part of the "normal" benefits awarded to Ballard and St. Jude could easily have avoided the penalty by continuing to pay Ballard's benefits while pursuing WCAB permission for the credit. St. Jude appeals.
DISCUSSION
St. Jude argues the exclusion contained in Section D5 of the General Reinsurance policy for "payments made by the Insured in excess of benefits regularly required by the Workers Compensation Law if such excess payments are required because ... the Insured violated or failed to comply with any Workers Compensation Law," does not apply to an increase in a workers' compensation award made under section 5814. We disagree.
Palmer v. Truck Ins. Exchange (1999) 21 Cal.4th 1109, 1115, 90 Cal.Rptr.2d 647, 988 P.2d 568, aptly sets forth the law regarding construction of insurance policies. "`[Interpretation of an insurance policy is a question of law.' [Citation.] `While insurance contracts have special features, they are still contracts to which the ordinary rules of contractual interpretation apply.' [Citation.] Thus, `the mutual intention of the parties at the time the contract is formed governs interpretation.' [Citation.] If possible, we infer this intent solely from the written provisions of the insurance policy. [Citation.] If the policy language `is clear and explicit, it governs.' [Citation.] [¶] When interpreting a policy provision, we must give its terms their "`ordinary and popular sense," unless "used by the parties in a technical sense or a special meaning is given to them by usage.'" [Citation.] We must also interpret these terms `in context' [citation], and give effect `to every part' of the policy with `each clause helping to interpret the other.' [Citations.] [¶] A policy provision is ambiguous only if it is susceptible to two or more reasonable constructions despite the plain meaning of its terms within the context of the policy as a whole. [Citation.] The court may then `invoke the principle that ambiguities arc generally construed against the party who caused the uncertainty to exist (i.e., the insurer) in order to protect the insured's reasonable expectation of coverage.' [Citation.]"
Under these rules, the exclusion is not ambiguous. General Reinsurance is not obligated to indemnify St. Jude for payments made by St. Jude in excess of regular workers' compensation benefits required because St. Jude violated or failed to comply with the workers' compensation law. As we shall explain, the section 5814 award falls squarely into this exclusion, *544 and St. Jude's strained efforts at creating ambiguity where none exists must fail.
A. The Section 581k penalties fall within the exclusion.
At the core of St. Jude's argument is its conviction that a section 5814 award is simply a normal component of a workers' compensation award and that such an award cannot be construed as an "excess payment" or penalty imposed for violation of a workers' compensation law. It is wrong.
1. The section 581k penalties are payments in excess of regular benefits.
Section 5814 provides in pertinent part, "When payment of compensation has been unreasonably delayed or refused, either prior to or subsequent to the issuance of an award, the full amount of the order, decision, or award shall be increased by 10 percent." (Italics added.)
Countless Supreme Court and appellate court opinions have considered the nature of section 5814 awards. In State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (1998) 18 Cal.4th 1209, 77 Cal.Rptr.2d 528, 959 P.2d 1204, the Supreme Court described section 5814 as the harsher in a "triad of penalties" available to a claimant when payment is delayed (id. at p. 1214, fn. 3, 77 Cal.Rptr.2d 528, 959 P.2d 1204); one that is justified only because the specific finding is made that the employer (or insurer) acted unreasonably. (Ibid.)
"The purpose of the section 5814 penalty is twofold. First, the statute provides an incentive to employers and insurance carriers to pay benefits promptly by making delays costly. [Citations.] A second and "`equally important purpose'" is "`to encourage timely payments of compensation to injured working people to promptly ameliorate economic hardship [resulting from] the interruption of their employment and concomitant loss of income.'" [Citations.] The touchstone of a section 5814 penalty is a delay or refusal to pay benefits that is unreasonable." (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd., supra, 18 Cal.4th at p. 1214, 77 Cal.Rptr.2d 528, 959 P.2d 1204, italics added; see also Avalon Bay Foods v. Workers' Comp. Appeals Bd. (1998) 18 Cal.4th 1165, 1170-1171, 77 Cal.Rptr.2d 552, 959 P.2d 1228; DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382, 395-396, 20 Cal.Rptr.2d 523, 853 P.2d 978; Gallamore v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 815, 822, 153 Cal.Rptr. 590, 591 P.2d 1242; Adams v. Workers' Comp. Appeals Bd. (1976) 18 Cal.3d 226, 229, 133 Cal.Rptr. 517, 555 P.2d 303.)
St. Jude's suggestion that any innocuous behavior (i.e., not meriting punishment) might trigger section 5814 penalties if any delay in payment results is unfounded. A minor delay or failure to pay a de minimis amount might trigger section 5814 if the WCAB finds the employer acted unreasonably. (Avalon Bay Foods v. Workers' Comp. Appeals Bd., supra, 18 Cal.4th at p. 1171, 77 Cal.Rptr.2d 552, 959 P.2d 1228 ["section 5814 does not recognize any exception for de minimis delinquencies in determining whether to assess a penalty"].) But as noted in County of Sacramento v. Workers' Comp. Appeals Bd. (1999) 69 Cal.App.4th 726, 81 Cal.Rptr.2d 780, mere inadvertence alone does not support a section 5814 penalty. "Section 4650 provides for a 10 percent penalty on any payment which is delayed, regardless of the reason. However, where the delay is `unreasonable,' section 5814 prescribes a penalty of 10 percent on the entire award. In our view, before the more drastic remedy of section 5814 may be invoked, there must be something more than mere inadvertence...." (Id. at p. 733, 81 Cal.Rptr.2d 780.)
*545 St. Jude's argument that because section 5814 penalties are considered to attach to and become part of a compensation award, they cannot be payments in excess of regular benefits is not well taken. We are aware that although typically described as a "penalty," once ordered, the section 5814 penalty is "properly characterized as part and parcel of the original compensation award. It is an increase in compensation awarded, rather than a separate type of benefit." (Anderson v. Workers' Comp. Appeals Bd. (1981) 116 Cal.App.3d 954, 960, 172 Cal.Rptr. 398.) But that begs the issueeven if the penalty attaches to the underlying award, is it a payment in excess of the amount regularly required?
St. Jude's reliance upon the WCAB's opinion in Hershman v. James Eisenberg Medical Group (2002) 67 Cal.Comp.Cases 808 for the proposition that section 5814 penalties are regular workers' compensation benefits is misplaced. In Hershman, the workers' compensation liability insurance carrier unreasonably delayed payment of the injured worker's claim and the insurer was ordered to pay section 5814 penalties. The insurer subsequently became insolvent and the issue was whether the California Insurance Guarantee Association (CIGA), the entity statutorily mandated to discharge "covered claims" of insolvent insurers (Ins.Code, § 1063.2, subd. (a)), was responsible for payment of the section 5814 penalties to the injured worker. CIGA argued it was not because Insurance Code section 1063.1, subdivision (c)(8) excluded from the definition of "[c]overed claims ... any amount awarded as punitive or exemplary damages." The WCAB disagreed. Following the reasoning contained in dicta in Carver v. Workers' Comp. Appeals Bd. (1990) 217 Cal. App.3d 1539, 1549, 266 Cal.Rptr. 718, the WCAB held "section 5814 penalties" are not punitive or exemplary damages, but result in an increase in the compensation award. Because they are part of "compensation," CIGA was required to pay the section 5814 penalties under Insurance Code section 1063.1, subdivision (c)(1)(vi), which required it "`to provide workers' compensation benefits under the workers' compensation law of this state[.]'" (Hershman v. James Eisenberg Medical Group, supra, 67 Cal.Comp.Cases at p. 811, italics omitted.)
Neither Hershman v. James Eisenberg Medical Group, supra, 67 Cal.Comp.Cases 808 nor Carver v. Workers' Comp. Appeals Bd, supra, 217 Cal.App.3d 1539, 266 Cal. Rptr. 718 considered the issue presented here. Both cases were decided in the context of workers' compensation liability insurance, not a self-insured employer's excess indemnification policy. Both considered whether a specific statutory exclusion of "exemplary or punitive damages" included section 5814 penalties. Neither case considered whether a section 5814 penalty was a payment in excess of regularly required benefits. More importantly, neither considered whether an excess insurance carrier could legally exclude such penalties from its indemnification coverage. We conclude the section 5814 penalties are not regularly required workers' compensation benefits, but are excess payments within the plain meaning of the policy's exclusion.
2. The section 58H penalty was imposed for violation or failure to comply with workers' compensation laws.
St. Jude argues that even if construed as a penalty, or a payment in excess of regular workers' compensation benefits, section 5814 penalties generally, and the award in this case, are not necessarily imposed because of the violation of, or failure to follow, any workers' compensation law. Again, we disagree.
*546 The WCAB found St. Jude had unreasonably withheld payment of Ballard's workers' compensation benefits. That decision is final and we will not now revisit the contention St. Jude raised in the Ballard actionthat it acted reasonably in withholding payment of her benefits.
In unreasonably withholding, delaying or denying payment of Ballard's medical expenses, St. Jude clearly ran afoul of several workers' compensation laws. For example, under section 4600, St. Jude had the affirmative statutory duty to provide Ballard medical treatment, of which it could not be relieved without good cause. (Henson v. Workmen's Comp. Appeals Bd. (1972) 27 Cal.App.3d 452, 457, 103 Cal. Rptr. 785.) Section 4550 requires the employer pay workers' compensation benefits. ("Where liability for compensation exists under this division, such compensation shall be furnished or paid by the employer....") The version of section 4603.2 in effect at the relevant times required an employer to pay physician's bills "after receipt of the required reports." (Stats. 1984, ch. 909, § 2.) (The current version of that statute requires payment within 60 days of receipt of itemized bills along with required reports.) California Code of Regulations, title 8, section 10109(e) imposes upon "insurers, self-insured employers and third party administrators" the duty to "deal fairly and in good faith with all claimants, including lien claimants." In short, the workers' compensation law requires payment of benefits to an injured worker. Refusing to pay those benefits was a violation of the workers' compensation laws.
St. Jude largely complains about the lack of a specific statute directing how it is to claim credit against its liability for compensation for Ballard's recovery from a third party. It argues at worst it violated a "non-statutory rule of procedure," which cannot be construed a violation of any workers' compensation law. Accordingly, it argues, since no specific statute was violated by St. Jude's method of asserting its claim, the award of section 5814 penalties was not for a violation of any workers' compensation law.[4] But the argument is irrelevant. The WCAB has decided in the Ballard action that St. Jude's withholding payment was not permitted and unreasonable. We cannot reconsider that point. It was St. Jude's refusal to pay Ballard's benefits that constituted a violation of (or failure to comply with) workers' compensation law.
B. The exclusion is not ambiguous.
St. Jude's reliance on Safeco his. Co. v. Robert S. (2001) 26 Cal.4th 758, 110 Cal.Rptr.2d 844, 28 P.3d 889 {Safeco), to establish an ambiguity rendering the General Reinsurance exclusion unenforceable is misplaced. In Safeco, a homeowners liability insurance policy expressly covered accidental bodily injury but excluded coverage for bodily injury arising out of an "illegal act." The insureds' son accidentally shot and killed his friend and was subsequently found guilty in the juvenile court of involuntary manslaughter. The insurer sought a declaration that the "illegal act" exclusion precluded coverage for the ensuing wrongful death action against the insureds. (Id. at p. 761, 110 Cal.Rptr.2d 844, 28 P.3d 889.)
*547 The Supreme Court concluded the "illegal act" exclusion at issue in Safeco was unenforceable. (Safeco, supra, 26 Cal.4th at p. 766, 110 Cal.Rptr.2d 844, 28 P.3d 889.) The phrase "illegal act" could reasonably be construed either broadly to mean an act prohibited by any law, whether civil or criminal, or more narrowly, to imply a violation of criminal law only. If read broadly the exclusion could include even simple acts of negligence, because a violation of the duty to use care is a violation of law. (Id. at p. 764, 110 Cal.Rptr.2d 844, 28 P.3d 889.) Under such a broad interpretation, the promise of the insurance would be rendered illusorythe policy was supposed to defend and indemnify for injury resulting from negligence, but the exclusion could defeat that coverage. (Id at p. 765, 110 Cal.Rptr.2d 844, 28 P.3d 889.) "[Reasonable insureds [would] expect their homeowners policy to protect them against liability for accidental injury or death occurring in their home[.]" (Id at p. 766, 110 Cal.Rptr.2d 844, 28 P.3d 889.) Therefore, the Supreme Court concluded the exclusion was inherently ambiguous and incapable of being given any enforceable meaning. (Id at p. 767, 110 Cal.Rptr.2d 844, 28 P.3d 889.)
St. Jude would have us read Safeco so broadly as to stand for the proposition that any exclusion tied in any way to a violation of any law is unenforceable. That is not Safeco's holding. Safeco held the "illegal act" exclusion was unenforceable because it was not clear as to what law it was referring to, criminal or civil, and could be broadly interpreted to obliterate the very coverage it promised. "The `"burden rests upon the insurer to phrase exceptions and exclusions in clear and unmistakable language."' [Citation.]" (Safeco, supra, 26 Cal.4th at p. 766, 110 Cal.Rptr.2d 844, 28 P.3d 889.) Indeed, subsequent cases have noted, "The corollary of the Safeco rule is that where ... an insurer does want to exclude criminal acts from coverage and has expressly done so in language that is clear and unambiguous, the exclusion will be given effect." (20th Century Ins. Co. v. Schurtz (2001) 92 Cal. App.4th 1188, 1189, 1195-1196, 112 Cal. Rptr.2d 547 [clause excluding coverage for "`bodily injury ... which is a foreseeable result of an intentional or criminal act of [the] insured or which is in fact intended by [the] insured'" is enforceable].)
The exclusion at issue here bears little similarity to the one at issue in Safeco. Unlike the Safeco exclusion, this one does not cover a broad range of "illegal acts." The exclusion is quite specific. It covers payments in excess of regular worker's' compensation benefits if required because "the Insured violated or failed to comply with any Workers Compensation Law." The penalty imposed for St. Jude's unreasonable refusal to pay benefits clearly falls within the exclusion.
There is no possibility the exclusion could be interpreted to preclude indemnification for regular workers' compensation benefits, i.e., render the coverage illusory as St. Jude suggests. We engage in a reasonable construction of the policy, not a strained construction. (Gunderson v. Fire Ins. Exchange (1995) 37 Cal.App.4th 1106, 1118, 44 Cal.Rptr.2d 272.) The examples given by St. Jude are not compelling. It cites section 5402, subdivision (b), which provides that if a claim is not rejected within 90 days, the injury is presumed to be compensable. It also states that under certain procedural rules, which are not cited, an employer's affirmative defenses can be waived if not listed in its mandatory settlement conference statement. St. Jude argues that when benefits are awarded due to a violation of either of these rules, the policy exclusion would apply and all benefits could be excluded from coverage. But those are not reasonable interpretations. *548 Both of those scenarios deal with an employer's or insurer's ability to defend against liability for regular workers' compensation benefits. The exclusion at issue here cannot deprive the insured of indemnification for regular benefits, only benefits in excess of regular benefits. There is no ambiguity in the exclusion.
C. St. Jude's remaining contentions are without merit.
St. Jude's other arguments as to why the exclusion is unenforceable are likewise without merit.
First, St. Jude argues its presented uncontroverted evidence that it reasonably believed the excess policy would include coverage for section 5814 penalties. It relies on the testimony of its workers' compensation claims manager that she "reasonably believed" the penalties to be covered. But the insured's expectations are considered only when the policy is ambiguous (La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co. (1994) 9 Cal.4th 27, 37, 36 Cal.Rptr.2d 100, 884 P.2d 1048); they cannot be relied upon to create an ambiguity where none exists.
St. Jude next points out the other four exclusions contained in paragraph D relate to specific workers' compensation laws that prohibit certain conduct. Paragraphs D1 and D3 exclude indemnification for excess payments required because of serious and willful misconduct of the insured and violation of a health or safety law or regulation; section 4553 requires an award be increased by one half if injury is due to the employer's serious or willful misconduct, which can include violation of a safety order (§ 4553.1). Paragraph D2 excludes excess payments because the insured employed an employee in violation of law; section 4557 requires a 50 percent increase in an award to an illegally employed minor under age 16. Paragraph D4 excludes indemnification for excess payments required because of illegal discrimination; section 132a provides for significant increases in awards due to discrimination.
But, St. Jude argues, exclusion D5 is not similarly tied to a specific Labor Code section. Rather, it is more of a catch-all that applies to any violation or failure to comply with workers' compensation laws. Thus, it urges, it is unclear whether it was intended to apply to section 5814 penalties and an insured is not adequately put on notice that paragraph D5 includes section 5814 penalties. The fact that paragraph D5 is a catch-all and is broader than the other exclusions, does not render it ambiguous.
Finally, St. Jude argues the exclusion violates state law and public policy because it leaves the employer uninsured for the portion of benefits attributable to section 5814 penalties. The argument ignores that St. Jude is self-insured. An employer is required by law to "secure payment of [workers'] compensation" either by being insured against liability or by obtaining a certificate of self-insurance. (§ 3700.) St. Jude chose the latter route. That its excess insurance carrier excludes indemnification for certain benefits does not create a gap in coverage exposing the injured worker to the risk of being unable to recover her benefitscoverage is had through St. Jude's being self-insured. The only risk is to St. Jude as to how much it can minimize its losses for benefits it is required to pay.
The judgment is affirmed. The Respondents are awarded their costs on appeal.
WE CONCUR: SILLS, P.J., and FYBEL, J.
NOTES
[1] All further statutory references are to the Labor Code unless otherwise indicated.
[2] The policy defines "Workers Compensation Law" as the law of the state or states listed on the declarations page, which in this case is California.
[3] Genesis Underwriting Management Company, which provides management services to General Reinsurance, was also a plaintiff in this action. The judgment declared Genesis has no reimbursement obligations because it was not a party to the insurance contract. St. Jude does not challenge this aspect of the judgment.
[4] Section 3861 specifically provides the WCAB may allow such a credit"The appeals board is empowered to and shall allow, as a credit to the employer to be applied against his liability for compensation, such amount of any recovery by the employee for his injury...." The statute does not authorize an employer to make a unilateral decision that a credit is appropriate and withhold benefits. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261823/ | 422 Pa. Superior Ct. 36 (1993)
618 A.2d 1003
FRANCIS GERARD JANSON, P.C., Appellant,
v.
Mark B. FROST, Esquire and Mark B. Frost, Joseph Demesquitta and R. Lee Rudow, Individually and a Partnership Trading as Frost, Demesquitta & Rudow, Appellees.
Superior Court of Pennsylvania.
Argued September 2, 1992.
Filed January 5, 1993.
*38 Jeffrey S. Lichtman, Philadelphia, for appellant.
George Szymanski, Jr., Philadelphia, for appellees.
Before CIRILLO, POPOVICH and HOFFMAN, JJ.
POPOVICH, Judge:
The appellant, Francis Gerard Janson, P.C., has filed an appeal from the order granting the preliminary objections in the nature of a demurrer of the appellees, Mark B. Frost & Mark B. Frost, Joseph Demesquita & R. Lee Rudow, individually and a partnership, trading as Frost, Demesquita & Rudow. We affirm.
When reviewing preliminary objections in the nature of a demurrer, the question is whether, assuming the facts averred in the complaint to be true, the law is clear that no recovery is permitted. A demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. Since a court should be reluctant to grant a demurrer except in the clearest of cases, a demurrer should not be granted where it appears that the plaintiff could cure any defect in the complaint by amendment.
Slater v. Pearle Vision Center, Inc., 376 Pa.Super. 580, 546 A.2d 676, 677 (1988) (Citations omitted).
The record, examined under the standard set forth in Slater, indicates that the appellant was retained by Stuart Gross to represent him in an automobile accident case. A contingent fee agreement was executed in which Gross consented to pay the appellant thirty three and one-third (331/3) percent of the settlement or judgment secured on his behalf. See Complaint, Paragraph 4, Exhibit "A".
*39 In the course of representing Gross, the appellant received an offer from the insurer to settle for $24,000. Gross rejected the offer. Thereafter, Gross discharged the appellant and secured the appellees to handle his case. The appellant reacted by informing the appellees that he had received a settlement offer for $24,000 and that he was "entitled" to an attorney's fee amounting to one-third (1/3) of that offer. Complaint, Paragraph 7.
The appellant was advised that the fee would be "guaranteed" from the funds recovered on behalf of Gross "if Plaintiff would produce written proof" that an offer of settlement had been made. While awaiting a confirmation letter from the insurer concerning the offer, the appellees "rescind[ed]" the agreement. Complaint, Paragraph 11.
Thirty seven (37) days after the appellees had agreed to make payment of one-third (1/3) of any settlement, and after the appellees had rescinded the agreement, the appellant forwarded evidence of the insurer's $28,000 offer to the appellees. Complaint, Paragraph 12, Exhibit "B".
With the appellees' refusal to honor the agreement, the appellant filed a complaint seeking judgment premised upon the oral agreement, and, in the alternative, a one-third (1/3) contingent fee on a quantum meruit theory from money received by the appellees on behalf of Gross.
Preliminary objections were filed in which it was admitted that an agreement had been entered into "for payment of one third (1/3) referal [sic] attorney fee to Plaintiff from any funds received on behalf of . . . Gross up to the sum of $24,000." Paragraph 6. However, the appellees denied any "agree[ment] to protect Plaintiff's fee for an amount of . . . $8,000." Paragraph 10. In fact, the appellees asserted that the agreement was conditional in nature and required the appellant to forward Gross' "complete files immediately" and provide written proof of the $24,000 settlement offer. Paragraph 6.
According to the appellees, their oral offer (made February 7, 1991) was rescinded (by letter dated March 5, 1991) when *40 the appellant did not comply with the condition of the proposed agreement. Paragraph 7. Moreover, the appellees asserted that the complaint was premature since no funds had been collected on behalf of Gross because the case was still pending in Common Pleas Court. Therefore, the appellees sought dismissal of the complaint for the appellant's failure to state a claim upon which relief could be granted.[1]
In answer, the appellant denied the conditional nature of the understanding between himself and the appellees, that he was without information, knowledge or belief as to whether the litigation involving Gross had been resolved and that the appellees' refusal to honor the agreement constituted an anticipatory breach prompting the present suit. Paragraphs 4, 15 & 16.
A Memorandum of Law was filed in support of the answer and urged that the appellant be allowed to amend his complaint to seek a declaratory judgment. The proposed amendment alleged all matters appearing in the initial complaint, with the addition of the averment that the plaintiff be entitled to "declaratory relief" in the nature of an order of court directing the appellees to pay the appellant $8,000 from the "proceeds of any settlement or verdict received through [the appellees'] representation of Gross.
By order of court dated January 28, 1991, the appellees' preliminary objections were sustained and the appellant's complaint was dismissed. A petition for reconsideration was denied and, thereafter, a timely appeal was filed with this Court.
In deciding whether the court below acted properly in granting the preliminary objections of the appellees, we note that both parties concede an agreement had been reached *41 regarding the securement of the appellant's contingent fee. The understanding ceases there.
The court labels the agreement executory and subject to rescission. The appellant argues the agreement was completed save for the satisfaction of a condition subsequent (written confirmation of the insurer's offer to settle) considered to be "immaterial" to the agreement as a whole. The appellees contend that production of the written confirmation to settle was a condition precedent which was not sent until after revocation.
In resolving this dispute, we begin with a recitation of various principles of law germane to the case at bar: First, the task of interpreting a contract is generally performed by a court rather than a jury, Walton v. PNB, 376 Pa.Super. 329, 545 A.2d 1383 (1988); Second, where a contract is executory on both sides (as was the case here), the party seeking the legal enforcement of the stipulations of the other party must show a compliance with his own. In other words, that which is first to be performed must be done or tendered before the party who is to do it can sustain a suit against the other, 17A Am.Jur.2d, §§ 609, 470 ("in the case of a concurrent condition, there is no liability until the condition is performed or occurs."); Third, it is the general rule that where no time is agreed upon for the completion of a contract, it must be completed within a reasonable time under all the circumstances, 8 P.L.E. Contracts, § 245; 17A Am.Jur.2d, §§ 202, 479; Fourth, where contractual promises or covenants are mutual and dependent, the failure of one party to perform authorizes the other to rescind the contract, 17A Am.Jur.2d, §§ 570, 574 (Interdependence of contractual provisions, in which a material breach occurs by one party, entitles the other party to rescind); and Fifth, what is a reasonable time within which to exercise the right of rescission, when the facts are undisputed, is a question of law to be determined by the court, 8 P.L.E. Contracts, § 319.
Applying the precepts just recited to the case at bar, the complaint reveals that the appellees guaranteed a one-third (1/3) contingent fee payment to the appellant. Such payment *42 was "conditional" in nature and required presentment of Gross' files and written confirmation of a settlement offer from the insurer. Neither requirement was satisfied until after the passage of three (3) weeks from the date appellees' offer was communicated to the appellant and revocation had taken place. The conditions being lawful, it is not competent for this Court to dispense with their performance. Waterman v. Banks, 144 U.S. 394, 401-03, 12 S.Ct. 646, 648, 36 L.Ed. 479 (1892).
Unlike the appellant, we hold that satisfaction of one of the conditions precedent was a "material" element to enforcement of the contract. It was the "essence" of the agreement, for without evidence of the offer of settlement from the insurer, the appellees had no proof ("consideration") of the appellant's efforts requiring remuneration. 17A Am.Jur.2d, §§ 573, 577 (Material breach warrants rescission); § 580 (A contract may be rescinded by a party thereto by reason of the breach or nonperformance of a condition by the other party, especially where it is the breach or nonperformance of a condition precedent).
Accordingly, we agree with the court that:
Submission from both parties led this Court to believe that the agreement functions as an executory contract. Prompt delivery of the client's file and written verification of the settlement offer served as conditions precedent to defendants' obligation to protect plaintiff law firm's fee.
Plaintiff contends that defendants' refusal to protect the fee was an anticipatory breach of the agreement. In theory, anticipatory repudiation by defendants could have discharged plaintiff's duty to perform the conditions, i.e., delivering the file and written proof of the settlement offer. Jonnet Development Corp. v. Dietrich Industries, Inc., 316 Pa.Super. 533, 463 A.2d 1026 (1983).
Circumstances surrounding the agreement can appropriately shed light on the intent of the parties and the ambiguity of the contract. Walton 545 A.2d at 1389. Defendants averred that they agreed to protect plaintiff's fee on the *43 condition that plaintiff forward complete files immediately with written proof of a settlement offer.
Common sense suggests that defendants could have benefitted from promptly receiving the file and a written settlement offer from plaintiff. Defendants could have saved time and expense by avoiding duplication of the work which plaintiff alleged to have completed. However, plaintiff failed to supply information in a timely fashion and defendants withdrew the unfulfilled offer.
Lower Court Opinion at 4-5 (Footnote omitted; emphasis in original).
Lastly, we are not persuaded to allow the appellant the opportunity to amend his complaint. No amount of amending could cure the failure of the appellant to act timely in satisfying the conditions precedent as a preface to enforcing the executory contract with the appellees. See Pittsburgh Coal & Coke v. Cuteri, 404 Pa.Super. 298, 590 A.2d 790 (1991).
Finding no merit to any of the appellant's arguments on appeal, we will affirm the order granting the appellees' preliminary objections.
Order affirmed.[2]
NOTES
[1] The appellees assert in Paragraph 6 of their preliminary objections that the proper forum for this dispute is before the Attorney Fee Dispute Arbitration & Mediation Board.
This Court would point out that such dispute resolution is an alternative vehicle for settlement only where both parties are agreeable to such a forum. There is no indication that either party was receptive to such an approach in resolving the dispute.
[2] As an aside, given the unresolved nature of Gross' lawsuit below, we would note that the appellant is not without recourse against his former client. He may seek recoupment for the value of services rendered under a theory of quantum meruit, and, once a fund is created in favor of Gross, a charging lien can be filed in favor of the appellant for work performed. See Recht v. Urban Redevelopment Authority, 402 Pa. 599, 168 A.2d 134 (1961); Sundheim v. Beaver County Building & Loan Association, 140 Pa.Super. 529, 14 A.2d 349 (1940). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261828/ | 152 Pa. Commonwealth Ct. 163 (1992)
618 A.2d 1145
Patrick J. LA FRANKIE, Appellant,
v.
Robert A. MIKLICH, Appellee.
Commonwealth Court of Pennsylvania.
Submitted on Briefs October 21, 1992.
Decided December 7, 1992.
*165 Mark S. Sigmon, for appellant.
Gwendolyn T. Mosley, Senior Deputy Atty. Gen., for appellee.
Before CRAIG, President Judge, and DOYLE, COLINS, McGINLEY, SMITH, PELLEGRINI and FRIEDMAN, JJ.
*166 SMITH, Judge.
Patrick J. La Frankie appeals from an order of the Court of Common Pleas of Northampton County denying his motion for post-trial relief and granting judgment in favor of Robert Miklich (Trooper Miklich) notwithstanding a jury verdict for La Frankie on an abuse of process claim. The issues on appeal are whether the trial court erred by submitting to the jury the question of whether La Frankie was guilty of the underlying crimes of unlawful use of a credit card and forgery; and whether the trial court properly determined that Trooper Miklich is immune from suit.
I
Trooper Miklich arrested La Frankie on November 13, 1984 and charged him with unlawful use of a credit card and forgery. The Lehigh County District Attorney entered a nolle prosequi on September 17, 1985. La Frankie and his parents filed a civil action on June 11, 1986 against the Commonwealth of Pennsylvania, the state police, various police officials, Trooper Miklich, and the clerk who worked in the store where the credit card was allegedly unlawfully used and who identified La Frankie as being the person who used it. Trooper Miklich filed an answer to the complaint which included new matter asserting the affirmative defenses of sovereign and official immunity, and subsequently filed a counterclaim. Prior to trial, La Frankie's parents, the Commonwealth, the state police and various police officials were removed from this action. The counterclaim and claim against the store clerk were resolved during trial. Consequently, the surviving claims were La Frankie's allegations that Trooper Miklich abused the legal process and maliciously prosecuted and falsely arrested him.
The trial court charged the jury on the issue of probable cause and submitted to them special verdict interrogatories which directed the jury to determine, inter alia, whether La Frankie was guilty of the crimes charged. During their deliberations, the jury returned to the trial court with the following question "[d]o we have to be sure of Patrick's guilt *167 or innocence? The jury feel [sic] there is not enough evidence to decide either way." In response, the trial court repeated its previous instruction that it is Trooper Miklich's burden to prove that La Frankie was guilty of the crimes charged; reviewed the standard charge on the burden of proof by a fair weight or the preponderance of the evidence; and instructed the jury to continue deliberating. Subsequently, the jury responded affirmatively to all of the interrogatories presented to them and based on these findings, the trial court determined that Trooper Miklich had probable cause to arrest La Frankie and entered a verdict in Trooper Miklich's favor on the malicious prosecution claim. In addition, the jury determined that Trooper Miklich did not act in reckless disregard or with wanton misconduct, and did not falsely arrest La Frankie. However, the jury found the trooper guilty of abuse of process, but awarded no damages.
La Frankie filed a motion for post-trial relief seeking a new trial contending, inter alia, that the trial court erred by submitting the issue of his guilt to the jury. The trial court denied La Frankie's motion and determined, in pertinent part, that the issue of guilt was "so related to the broader issue of probable cause that it was fairly raised in pre-trial proceedings." As to Trooper Miklich's motion for post-trial relief, the trial court concluded that the trooper was immune from suit because he was an employee of the Commonwealth and was acting within the scope of his employment when he investigated the crimes and arrested and prosecuted La Frankie, and because the jury specifically found that he did not act in reckless disregard or with wanton misconduct.
On appeal to this Court, La Frankie maintains that submission of the issue of his guilt to the jury was error in that Trooper Miklich did not raise the issue as an affirmative defense in his new matter as required by Pa.R.C.P. No. 1030 and thereby waived the defense. La Frankie further maintains that the trial court's action constitutes reversible error as it confused the jury and severely prejudiced his case. With respect to the trial court's grant of judgment notwithstanding the verdict, La Frankie contends that Trooper Miklich was not *168 entitled to the defense of sovereign immunity because he was not acting within the scope of his employment when he abused the legal process; he engaged in willful or malicious misconduct; and he should be estopped from claiming the protection of sovereign immunity because he was adjudged by a trial court to have violated La Frankie's constitutional rights.[1]
II
In an action for malicious prosecution, a plaintiff has the burden to establish that the defendant initiated the underlying criminal proceeding without probable cause and primarily for a purpose other than to bring an offender to justice; and that the prosecution terminated in his or her favor. Carson v. City of Philadelphia, 133 Pa.Commonwealth Ct. 74, 574 A.2d 1184 (1990); See also Restatement (Second) of Torts § 653 (1976). Probable cause is a reasonable ground of suspicion supported by circumstances sufficient to warrant that an ordinary prudent person in the same situation could believe that the party is guilty of the offense. Miller v. Pennsylvania R.R. Co., 371 Pa. 308, 89 A.2d 809 (1952). "[P]robable cause is not . . . an actual state of guilt." Neczypor v. Jacobs, 403 Pa. 303, 308, 169 A.2d 528, 530 (1961). The Restatement (Second) of Torts § 657 (1976) provides "[t]he fact that the person against whom criminal proceedings are instituted is guilty of the crime charged against him, is a complete defense against liability for malicious prosecution."[2]
*169 In the matter sub judice, La Frankie's cause of action was complete by alleging his arrest by Trooper Miklich without probable cause and the subsequent entry of a nolle prosequi terminating the criminal proceedings in La Frankie's favor. The issue of La Frankie's actual guilt is a different issue and if Trooper Miklich chose to avail himself of this defense, he should have asserted in new matter any averments of fact upon which he based that defense. See Pa.R.C.P. No. 1030; Department of Transportation v. Pace, 64 Pa.Commonwealth Ct. 273, 439 A.2d 1320 (1982); Judge v. Celina Mutual Ins. Co., 303 Pa.Superior Ct. 221, 449 A.2d 658 (1982). A review of the record clearly indicates that Trooper Miklich did not raise the affirmative defense of La Frankie's guilt but, on the contrary, merely denied La Frankie's allegations that the Trooper acted without probable cause. Thus, the trial court's submission of this issue to the jury was error. However, this Court need not decide whether the error warrants reversal and a new trial because the trial court properly determined that Trooper Miklich was immune from this suit and granted judgment notwithstanding the verdict in his favor.
III
The trial court granted judgment notwithstanding the verdict to Trooper Miklich because when the Trooper investigated the crimes and arrested and prosecuted La Frankie, he was an employee of the Commonwealth, was acting within the course and scope of his employment, and was therefore protected by sovereign immunity pursuant to 1 Pa.C.S. § 2310.
1 Pa.C.S. § 2310 provides:
[p]ursuant to section 11 of Article I of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall *170 continue to enjoy sovereign and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. When the General Assembly specifically waives sovereign immunity, a claim against the Commonwealth and its officials and employees shall be brought only in such manner and in such courts and in such cases as directed by the provisions of Title 42. . . .
The exceptions to the sovereign immunity bar to actions against a Commonwealth party are set forth at 42 Pa.C.S. § 8522(b);[3] and a Commonwealth party is defined at 42 Pa.C.S. § 8501 as "[a] Commonwealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment."
This Court has held that when an employee of a Commonwealth agency was acting within the scope of his or her duties, the Commonwealth employee is protected by sovereign immunity from the imposition of liability for intentional tort claims. Yakowicz v. McDermott, 120 Pa.Commonwealth Ct. 479, 548 A.2d 1330 (1988), appeal denied, 523 Pa. 644, 565 A.2d 1168 (1989). In Yakowicz, an employee of the Pennsylvania Department of Treasury acting within the scope of his duties was deemed to be protected by sovereign immunity from the imposition of liability for defamation emanating from a written performance evaluation of McDermott which was circulated to appellant's superiors within the Department. See also Faust v. Department of Revenue, 140 Pa.Commonwealth Ct. 389, 592 A.2d 835 (1991), appeal denied, 530 Pa. 647, 607 A.2d 257 *171 (1992) (sovereign immunity protects a Commonwealth employee acting within the scope of his duties from liability for intentional acts which cause emotional distress).
However, in Freedman v. City of Allentown, 128 Pa.Commonwealth Ct. 126, 562 A.2d 1012 (1989), this Court stated that an employee of the Pennsylvania Board of Probation and Parole would be liable for his or her actions if they constituted willful misconduct. Contrariwise, the proper test to determine if a Commonwealth employee is protected from liability pursuant to 1 Pa.C.S. § 2310 and 42 Pa.C.S. § 8522 is to consider whether the Commonwealth employee was acting within the scope of his or her employment; whether the alleged act which causes injury was negligent and damages would be recoverable but for the availability of the immunity defense; and whether the act fits within one of the nine exceptions to sovereign immunity. See Yakowicz. To the extent that Freedman sets forth a proposition which is contrary to the reasoning and holding in Yakowicz and the test set forth herein, Freedman is overruled.[4]
Hence, since La Frankie's cause of action emanates from intentional tort claims and Trooper Miklich is a Commonwealth employee, the only question to be resolved to determine if immunity attaches is whether Trooper Miklich was acting within the scope of his duties as a state trooper when he arrested La Frankie and initiated the prosecution. The trial court concluded that Trooper Miklich was acting within the scope of his duties as a state trooper when he investigated the crimes and arrested La Frankie and moreover, La Frankie admitted in paragraph 9 of the complaint that "[a]t all times hereinafter mentioned and relevant hereto, Defendants Miklich and Brooks, were acting as the agents, *172 servants and employees of Defendant Commonwealth, and within the scope of their employment." Thus, inasmuch as the Trooper acted within the scope of his employment and La Frankie's claims do not fall within any category in which sovereign immunity is waived, Trooper Miklich is protected by immunity from the imposition of liability in this matter. Accordingly, judgment notwithstanding the verdict was properly entered by the trial court.
ORDER
AND NOW, this 7th day of December, 1992, the order of the Court of Common Pleas of Northampton County is affirmed.
McGINLEY, Judge, concurring and dissenting.
I concur in the majority opinion that Trooper Miklich acted within the scope of his employment and that La Frankie's claims do not fall within any of the eight exceptions to sovereign immunity. However, I respectfully dissent to the portion of the majority opinion which concludes that the trial court's submission of the issue of La Frankie's guilt to the jury was error.
In the present controversy, La Frankie alleges in his complaint: that "a reasonably well trained police officer should have known that the affidavit in the underlying criminal case failed to established probable cause for an arrest warrant taking into account the actual amount and quality of information known to Miklich at the time of the application for an arrest warrant"; that "Miklich had no probable cause for the arrest that occurred on November 13, 1984"; and that Miklich "caused criminal proceedings to be issued against the Plaintiff, Patrick LaFrankie, with malice and without probable cause, and continued to pursue such charges without probable cause." Complaint, June 11, 1986, Paragraphs 41, 55 and 63; Reproduced Record (R.R.) at R13, R17 and R19.
Trooper Miklich denied that he was acting without probable cause in his answer and pled in New Matter that he "had *173 reasonable and probable cause to arrest Patrick La Frankie." Answer and New Matter, December 12, 1986, Paragraph 76; R.R. at R34. As to what constitutes probable cause, the trial court instructed the jury as to the following:
Probable cause means that the person making the arrest believed at the time of the arrest and a reasonable person under the same circumstances would also have believed that he had sufficient information as to both the facts and the applicable law to reasonably believe that a crime had been committed and that the person arrested was guilty of committing the crime.
Probable cause for an arrest exists when the facts and circumstances within the knowledge of the person making the arrest and of which he had reasonably trustworthy information were sufficient in themselves to warrant a person of reasonable caution in the belief that the person arrested had committed or was committing a crime.
Notes of Testimony, July 3, 1990, at 85. Herein the pleadings sufficiently preserved the defense of La Frankie's guilt and I believe that Trooper Miklich was not foreclosed from proving La Frankie's guilt because this was not pled in New Matter. Also, the trial court noted that the eyewitness testimony of Jan Orwan identifying La Frankie as the person purchasing merchandise with the Bielefeld's credit card "was sufficient. . . to support a determination of guilt." Opinion of the Trial Court, April 30, 1991, at 8; R.R. at R55. The trial court correctly submitted the defense of La Frankie's guilt to the jury.
NOTES
[1] On appeal from an order denying a new trial, this Court's scope of review is limited to determining whether the trial court committed an error of law which controlled the outcome of the case or abused its discretion where the ruling turned on the weight of the evidence. DiBuono v. A. Barletta & Sons, Inc., 127 Pa.Commonwealth Ct. 1, 560 A.2d 893, appeal denied, 524 Pa. 632, 574 A.2d 73 (1989). When considering a trial court's order on a motion for judgment notwithstanding the verdict, this Court's scope of review is very narrow and limited to reading the record in the light most favorable to the verdict winner, granting the verdict winner the benefit of every favorable inference, and determining whether there is sufficient competent evidence to support the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 564 A.2d 1244 (1989); DiBuono.
[2] Similarly, to maintain an action for abuse of process, a party must allege that the legal process was perverted and directed toward him or her for a purpose other than that for which the process was designed. McGee v. Feege, 517 Pa. 247, 535 A.2d 1020 (1987). An action for false arrest, on the other hand, requires that the process used for the arrest was void on its face or that the issuing tribunal was without jurisdiction. Lynch v. Johnston, 76 Pa.Commonwealth Ct. 8, 463 A.2d 87 (1983).
[3] The defense of sovereign immunity shall not be raised to claims for damages caused by: (1) operation of any motor vehicle in the possession or control of a Commonwealth party; (2) acts of health care employees of Commonwealth agency medical facilities or institutions; (3) care, custody or control of personal property in the possession or control of Commonwealth parties; (4) dangerous condition of Commonwealth agency real estate and sidewalks; (5) dangerous condition of highways under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements; (6) care, custody or control of animals in the possession or control of a Commonwealth party; (7) sale of liquor at Pennsylvania liquor stores; (8) acts of a member of the Pennsylvania military forces; and (9) administration, manufacture and use of a toxoid or vaccine. 42 Pa.C.S. § 8522(b).
[4] Local agency employees, however, lose their immunity defense where their actions constitute a crime, actual fraud, actual malice or willful misconduct. Cassidy v. Abington Township, 131 Pa.Commonwealth Ct. 637, 571 A.2d 543, appeal denied, 527 Pa. 652, 593 A.2d 424 (1990) (applying 42 Pa.C.S. § 8550). The special interrogatories and the trial court's instructions to the jury indicate that the court applied the test for determining whether a local agency employee rather than a Commonwealth employee lost immunity protection. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261836/ | 861 F.Supp. 585 (1994)
Steve McELROY and Fred Griesbach, Plaintiffs,
v.
UNITED STATES of America, Defendant.
No. A 93 CA 117SS.
United States District Court, W.D. Texas, Austin Division.
August 25, 1994.
*586 *587 William W. McNeal, Lockhart, TX, for plaintiffs.
Ernest C. Garcia, Mollie S. Crosby, U.S. Attorney's Office, and Mollie C. Nichols, Asst. U.S. Atty., Austin, TX, for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
SPARKS, District Judge.
BE IT REMEMBERED that on the 27th and 28th days of June 1994, the Court held a bench trial for adjudication of the above-captioned matter. Plaintiffs brought claims against the United States of America pursuant to 28 U.S.C. §§ 1346(b) and 2674 (or the Federal Tort Claims Act) for damages resulting from the alleged negligence of officers and agents of the Organized Crime and Drug Enforcement Task Force (hereinafter, "OCDETF") a federal task force composed of federal, state, and local law enforcement officers. In addition, or alternatively, Plaintiffs aver they were victimized by the officers' intentional torts. After the conclusion of the evidence and the arguments of counsel, the Court withheld ruling until the parties had an opportunity to submit additional post-trial briefs on the issue of the Defendants' liability. *588 Having considered the trial evidence, the oral arguments of counsel, and the post-trial briefs, the Court enters the following Findings of Fact and Conclusions of Law.
I. Findings of Fact
In the fall of 1991, a confidential informant apprised agents of the OCDETF that George Rodriguez had sold him illegal narcotics. The informant had visited Rodriguez's residence at 6703 Comanche Trail in Travis County, Texas, and purchased drugs from him on several occasions. This information corroborated the OCDETF's suspicions that Rodriguez was a member of a large international drug distribution network which had been targeted in a sting operation. Consequently, members of the task force began watching Rodriguez's apartment in late October or early November of 1991. Officer Black, a local police officer who had been deputized as a federal agent, surveyed the activities at Rodriguez's apartment on twenty to thirty different occasions. In addition, the confidential informant had provided the task force with a description of the apartment's layout or floorplan.
In November of 1991, officers on the task force ran a check with the Texas Department of Motor Vehicles to determine the ownership of a Blue Suzuki Samurai that was often parked in front of Rodriguez's apartment. The check revealed that the automobile belonged to a person named Fred Griesbach who lived in Dallas. The officers then deduced Rodriguez's girlfriend, who resided in Dallas but visited him frequently, was either borrowing the car or had registered it under a different name.
The OCDETF officers did not attempt to check the utility records for Rodriguez's residence because they did not have direct access to the computers of the utility company, Perdinales Electric Company. Moreover, due to the small size of that company, the agents feared any inquiry by them would risk a leak to Rodriguez and, in turn, might jeopardize the entire sting operation. Finally, no pen registers were placed on the phone lines at the residence but the task force had pen registers monitoring the lines of Rodriguez's co-conspirators who contacted him regularly.
After accumulating enough evidence to establish probable cause to search the residence, the task force obtained a valid "no knock" search warrant from the United States Magistrate Judge. At approximately 6:00 a.m. on February 6, 1992, the task force (comprised of local police officers, federal D.E.A. agents, and the Travis County S.W.A.T. team) executed the warrant at 6703 Comanche Trail.[1] They rammed through the castle doors of Rodriguez's apartment and scattered throughout; some rushed to a bedroom where they seized Rodriguez and his female companion while others conducted a "protective sweep" to secure the area. During this protective sweep, one of the officers ran onto a balcony and, shining his light, observed an additional side of the building which the task force had yet to secure. He then informed the other officers of his discovery and, after realizing there were no internal doors connecting the two sides of the building, they ran outside and located another door that appeared to lead to the unsecured side. They then procured a battering ram and began splintering the second door.
Unfortunately and unbeknownst to the task force, the building was a duplex and the left side was occupied by two persons, Plaintiffs McElroy and Griesbach, who had no connection with the illegal activities of their neighbor Rodriguez. McElroy and Griesbach had lived at 6703 Comanche Trail since the commencement of the OCDETF's investigation.
McElroy awoke that morning to the terrifying sounds of crashing and screaming in Rodriguez's apartment next door. His first thought was that his neighbors were being murdered and he would have to get out of the duplex to save his own life. He looked down from the window of his bedroom loft and saw a flashlight shining from a balcony on Rodriguez's side of the duplex. He dialed 911 but before he could complete his call the *589 intruders began bashing in the front door of his unit. In an attempt to escape, he ran to the level below his bedroom loft and onto a balcony. He looked down from the balcony, which hung over a steep cliff, and reconsidered his escape route. He ran down the stairs to the ground floor where the front door was located. Before he could find a way to get out, the front door gave way and the Travis County S.W.A.T. team, outfitted in black suits, poured into the foyer and pounced on him. As they were taking him down, one of the officers grabbed for his head and inadvertently ripped out some of his artificially implanted hair. McElroy also sustained several small bruises and cuts on his legs. For approximately two minutes, they held him pinned to the floor with a gun to his head. To this point, the S.W.A.T. team had not identified themselves, but when McElroy, obviously terrified, implored them to identify themselves, they answered with nonresponsive obscenities.
Agents not involved in the take-down of McElroy ran past him toward Griesbach who, awakened by the commotion, had come to the base of the stairs on the ground floor. They tackled and pinned Griesbach in a similar manner, shouting obscenities, grabbing his hair, and holding a gun to his head. He received several bruises and a cut on his left shin. Like McElroy, none of Griesbach's cuts or bruises required medical attention.
After the initial siege, McElroy and Griesbach, wearing only boxer shorts, were secured with flexible plastic handcuffs and taken next door to Rodriguez's side of the duplex. The agents seated them on a couch next to Rodriguez and his girlfriend. Griesbach was given a bandage for the cut he sustained on his shin. After questioning McElroy and Griesbach for approximately forty-five minutes, the task force determined they were not involved in the drug-related activities of Rodriguez. The agents then took them back to their unit next door, required them to be photographed, issued a perfunctory, half-hearted apology, and released them. After they were released, no one from the OCDETF made any follow-up investigation to ensure that both men were not harmed (physically or mentally) or to assess the damages the raid caused to the apartment.[2]
II. Conclusions of Law
McElroy and Griesbach contend the agents and officers of the OCDETF, in executing the above-described investigation and raid, acted negligently. Additionally and, perhaps, alternatively, they claim the officers committed intentional torts against them during the raid. They therefore believe they are entitled to damages under the Federal Tort Claims Act (hereinafter "FTCA"). It should also be noted that McElroy and Griesbach have not sued any agents or officers individually in a Bivens action, but strictly in their capacity as employees of the federal government.[3] Further, the Court cannot infer a Bivens action lies within the FTCA claims because liability under the FTCA arises only when state law would impose it and a Bivens action is based on violations of federal constitutional law. Brown v. United States, 653 F.2d 196, 201 (5th Cir. Unit A Aug. 1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982); White v. Franklin, 637 F.Supp. 601, 613 (N.D.Miss. 1986).[4]
Negligence Under the FTCA
The Court concludes the OCDETF was negligent in its investigation prior to the raid. Officer Black, the officer supervising the investigation of Rodriguez, personally *590 participated in twenty to thirty stake-outs of the Comanche Trail residence before the raid. Several other officers also conducted surveillant activities which included taking aerial photos of the residence. With all this surveillance, however, no one ever saw Griesbach and McElroy leaving for work in the mornings or returning in the evenings, which they did routinely for over three months prior to the raid. They obviously entered and exited the building through a separate door than the one used by Rodriguez. Careful reconnaissance would have also revealed two separate meter boxes behind the building.[5] Finally, Officer Black, after determining the Suzuki Samurai in the driveway belonged to a Fred Griesbach, did nothing to investigate Griesbach. In all probability, such an investigation would have revealed his residence at 6705 Comanche Trail.[6]
Despite finding that the OCDETF was negligent in their investigation, the Court cannot conclude, from a preponderance of the evidence, that their negligence proximately caused the harm to Plaintiffs. Even assuming the OCDETF discovered 6703 Comanche Trail was a duplex and that other people lived in the unit adjoining Rodriguez's, the same damages would have likely resulted. The task force could not have determined that Rodriguez's neighbors were not involved in the drug trafficking ring without jeopardizing the entire sting operation. Of course, the Court does not mean to imply that police investigators should presume that neighbors of drug dealers are guilty by association. However, under the circumstances of this case, that presumption, though inaccurate, would not have been illogical.
The residence at 6703 Comanche Trail is an oddly-shaped structure located on a private road in a secluded area of Travis County. From the street, it does not look like a typical duplex and one could assume that its occupants, though technically residing at different addresses, have significant interaction and share certain common areas. The owner of the duplex lived in a large private home next door. The duplex and the home are in close proximity and share a swimming pool. The owner leased the duplex to his friends Rodriguez and Tom Capello on handshake deals. Capello, in turn, sub-leased his unit to Griesbach and McElroy later moved in to share the rent. Typically, police investigating apartment or duplex residents can question an owner or property manager. In this case, however, the OCDETF had reason to suspect the owner was also involved in the drug trafficking operation and questioning him was, therefore, not an option.[7] Hence, the only way to certify that Rodriguez's neighbors were not involved would have been to sequester and interrogate them personally. Such activity would risk a tip-off to Rodriguez and could have botched the entire sting operation because, simultaneous to the Rodriguez raid, the OCDETF had planned to execute searches or raids at approximately sixteen other locations throughout Texas.[8] One leak could have had a domino effect and notified all of Rodriguez's co-conspirators. For the aforementioned reasons, the Court cannot find from a preponderance of the evidence that the OCDETF's negligent investigation i.e., its failure to discover that 6703 Comanche Trail was a duplex occupied by separate parties proximately caused the injuries to Plaintiffs in this case.
It should also be made clear that the Court has determined the task force acted negligently in conducting its preliminary surveillance and not during its actual execution of the raid. With respect to the raid, probable *591 cause existed to enter Rodriguez's side of the duplex and the officers reacted reasonably upon discovering McElroy and Griesbach's side. To secure the area of all potential dangers, they had to break into McElroy and Griesbach's unit and take them into custody. The specific conduct of the officers during the raid, i.e. the tackling of the Plaintiffs and placing them in custody, was not negligent but intentional.[9]
Even assuming the Court found negligence and proximate cause regarding the task force's surveillance of the residence at 6703 Comanche Trail, whether their negligence is actionable under the FTCA requires further consideration. The FTCA does not waive the United States' sovereign immunity in all cases where the acts or omissions of a federal employee are challenged. In particular, if the complaint challenges the employee's performance of a discretionary function, 28 U.S.C. § 2680(a) exempts the United States from liability. The discretionary function exception applies regardless of whether the agency or employee exercised due care. Buchanan v. United States, 915 F.2d 969, 971 (5th Cir.1990). Thus, to recover damages for negligence under the FTCA, McElroy and Griesbach must allege the federal officers and agents were not exercising a discretionary function when they failed to ensure that Rodriguez was the only occupant of the residence at 6703 Comanche Trail.
In general, because it is the mandatory duty of law enforcement agents to enforce the law, decisions as to how to best fulfill that duty are protected by the discretionary function exception.[10]Horta v. Sullivan, 4 F.3d 2, 21 (1st Cir.1993). Even so, the courts should not accept this presumption without analyzing the specific facts of each case. The Supreme Court set forth a method for such an analysis in United States v. Gaubert. United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). The Gaubert decision promulgates a two-pronged test to determine whether the FTCA's discretionary function exception applies. First, the reviewing court should determine that the challenged conduct involved an "element of judgment or choice." Id. at 319-320, 111 S.Ct. at 1272; McNeily v. United States, 6 F.3d 343, 348 (5th Cir.1993) (applying the Gaubert criteria); see also Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 968, 97 L.Ed. 1427 (1953) (declaring that "where there is room for policy judgment and decision, there is discretion."). In other words, the court should determine that the conduct did not involve mandatory compliance with a particular "federal statute, regulation, or policy." Id. Second, if the challenged conduct involves the element of judgment or choice described in the first prong, the reviewing court should make certain the conduct is "based on considerations of public policy" before applying the exception. Gaubert, 499 U.S. at 323, 111 S.Ct. at 1274; McNeily, 6 F.3d at 348.[11]
As discussed above, the Plaintiffs' only valid negligence claims arise out of the task force's preliminary investigation and surveillance of Rodriguez's residence. Therefore, applying the Gaubert test, the Court must determine whether the planning and orchestration of a criminal investigation involves elements of judgment (or does not involve mandatory compliance with a particular "federal statute, regulation, or policy") and is based on public policy considerations.
The negligent acts or omissions of the federal agents and officers during the preliminary *592 investigation of George Rodriguez were clearly guided by judgment and choices and not by any federal rule or policy. It was Officer Black's feeling that obtaining utility records for the Comanche Trail residence could jeopardize the entire sting operation. See Georgia Casualty & Surety Co. v. United States, 823 F.2d 260, 263 (8th Cir.1987) (determining that the FBI's decision to refrain from notifying third parties of an investigation out of concern for secrecy was protected under the discretionary function exception). He also believed further investigation of Fred Griesbach would not benefit the operation. On the morning of the raid, he was satisfied that the task force had adequate information to perform a safe and effective search of the premises. Similarly, Greg Hildreth, the DEA agent who supervised the investigation, testified he did not feel additional surveillance was necessary before the raid. Plaintiffs have proffered no evidence showing the acts or omissions that amounted to a negligent investigation involved anything other than the discretion of the supervising agents and officers. They have also failed to show that the acts or omissions were governed by an official rule or policy.[12]
With respect to the second prong of Gaubert, the Court finds that the discretion exercised by the task force while conducting the investigation was guided by public policy considerations. In making decisions related to the investigation, the agents and officers (specifically Agent Hildreth and Officer Black) were primarily concerned with obtaining evidence to convict Rodriguez. Their decisions to take or refrain from certain actions were controlled by their desire to obtain his conviction. Obviously, this objective correlates with the public policy goal of punishing and deterring distribution of illegal narcotics. Hence, the actions and omissions connected with the investigation satisfy both prongs of Gaubert and the discretionary function exception applies to exclude Plaintiff's negligence claim.[13]See Flax v. United States, 847 F.Supp. 1183, 1188 (D.N.J.1994) (finding that action against FBI agents for negligent surveillance of a kidnapping victim was barred by the discretionary function exception of the FTCA); Mesa v. United States, 837 F.Supp. 1210, 1212 (S.D.Fla.1993) (concluding that action against DEA agent for negligently investigating and arresting the wrong person was barred by the discretionary function exception); Patel v. United States, 806 F.Supp. 873, 878 (N.D.Cal.1992) (holding that DEA agents' decisions to investigate, obtain search warrant, and raid suspected drug hideout were discretionary functions).
Intentional Torts Under the FTCA
Plaintiffs have additionally claimed the actions of the officers during the raid amounted to intentional torts and are actionable under the FTCA. The intentional tort claim requires a slightly different analysis than the negligence claim. Section 2680(h) of the FTCA expressly waives sovereign immunity for the intentional torts of law enforcement and investigative officers. In fact, that section was designed to redress the precise intentional tort claims Plaintiffs have alleged in this lawsuit. The Fifth Circuit Court of Appeals assessed the congressional intent of 2680(h) as follows: "Congress, in response to `no knock' raids conducted by federal narcotic agents on the wrong dwellings, passed the 1974 amendment to the Federal Torts Claims Act to provide compensation [for persons *593 victimized by intentional torts]." Solomon v. United States, 559 F.2d 309, 310 (5th Cir. 1977).
Section 2680(h) does not, however, trump the discretionary function exception of 2680(a). The exception will apply and the United States will remain immune if, from the face of the pleadings, the reviewing court can determine that the accused agent or officer was performing a discretionary function when he allegedly committed the intentional tort. See Sutton v. United States, 819 F.2d 1289, 1293 (5th Cir.1987). However, if the allegations indicate the agent or officer was not performing a discretionary function, he may be liable for the commission of intentional torts under section 2680(h).
As Sutton v. United States explains, "[a] government agent who departs from the duties of an investigator and embarks on an intentional abuse within the meaning of 2680(h) similarly exceeds the scope of his authority and acts outside his discretion ... contrary to the Constitution or agency guidelines." Id. Though Sutton was decided four years before Gaubert, its rationale seems to comport with Gaubert's provision that the conduct will not be considered discretionary if it involves mandatory compliance with a "federal statute, regulation, or policy." A reconciliation of Sutton with Gaubert requires the Court to interpret the language "mandatory compliance with a federal statute" to include mandatory compliance with the Constitution. This broader interpretation suggests that in situations where the Constitution mandates an arresting officer to act a certain way, any conduct deviant of the mandate is non-discretionary.
It is easy to see how the broader interpretation arising from by the reconciliation of Sutton and Gaubert could become problematic. Plaintiffs could argue that the Constitution, albeit indirectly and abstractly, controls the conduct or decisions of an officer in every circumstance. For example, one could argue that every decision an officer makes while conducting a search or an arrest is non-discretionary if it does not comply with the Fourth Amendment.[14] If successful, these arguments would transform the discretionary function shield from steel to paper. In light of Gaubert, however, the statutory or constitutional mandate that eliminates discretion must be specific and intelligible so that the officers knows or should know he loses discretion when the particular circumstances arise which the mandate controls.[15]
Thus, a court must determine whether there is a specific and intelligible constitutional mandate that involves or is related to the alleged intentional torts of the accused officer(s). If such a mandate exists, the Court will conclude, for jurisdictional purposes only, that the alleged torts occurred during the performance of a non-discretionary function.[16] Upon reaching such a conclusion, *594 the Court may determine the merits of the section 2680(h) intentional tort claims under the applicable state tort law.[17]
In this case, the alleged conduct of the officers is controlled by or involves a specific and intelligible constitutional mandate. Thus, the conduct should be considered, for jurisdictional purposes, non-discretionary and the United States may incur liability for the intentional torts arising out of that conduct under section 2680(h), notwithstanding section 2680(a). McElroy and Griesbach claim the S.W.A.T. officers used excessive force when apprehending and detaining them and, in doing so, defied constitutional mandates under the Fourth and Eighth Amendments. Typically, law enforcement agencies and departments have explicit policy guidelines and training programs to prevent officers' use of excessive force when arresting and detaining a suspect. Even if these guidelines or programs do not exist, arresting officers know they must take care not to violate a suspect's civil rights by using excessive force. Therefore, Plaintiffs' allegations that the officers' tackled them, pulled their hair, put guns to their heads, and subjected them to cold temperatures implicate non-discretionary conduct and may expose the United States to liability under section 2680(h) of the FTCA.
When determining whether the conduct of law enforcement officers constituted assault, false imprisonment, or false arrest under the FTCA, the United States may invoke any defenses available to individual law enforcement officers under Texas law.[18] See 28 U.S.C. § 2674 (1994). Texas courts have proclaimed that a police officer is entitled to qualified immunity from intentional tort liability "if he is acting in good faith within the course and scope of his authority, and performing discretionary functions."[19]Vasquez v. Hernandez, 844 S.W.2d 802, 803 (Tex.App.San Antonio 1992, writ dism'd w.o.j.); see Bozeman v. Trevino, 804 S.W.2d 341, 343 (Tex.App. San Antonio 1991, no *595 writ); Dent v. City of Dallas, 729 S.W.2d 114, 117 (Tex.App.Dallas 1986, writ ref'd n.r.e.), cert. denied, 485 U.S. 977, 108 S.Ct. 1272, 99 L.Ed.2d 483 (1988). In the few cases where Texas law enforcement officers have been sued for assault, false imprisonment, and false arrest, the officers have raised this affirmative defense of qualified immunity based on good faith. The officers and agents of the OCDETF have raised similar good faith defenses in this case and the Court will now consider them.
First, McElroy and Griesbach allege members of the S.W.A.T. team committed intentional torts when they broke into their apartment, threw them to the floor, placed guns to their heads, and handcuffed them. Under Texas law, if an officer has probable cause which has been established in this casehe is justified in using such force "the actor reasonably believes * * * is immediately necessary to make * * * an arrest * * * or to prevent * * * escape after the arrest." Texas Penal Code Ann. § 9.51(a) (Vernon 1994). Upon entering McElroy and Griesbach's unit and believing them to be suspects in an international drug operation, the officers reasonably believed it was immediately necessary to apprehend them in the above-described manner.
It is important to recognize that the exigency of the circumstances forced the officers to act purely on instinct; they did not have the luxury of quiet contemplation afforded by the chambers of this courthouse. The instant they crashed through the door, they came face to face with McElroy and saw Griesbach standing near the stairs approximately twenty feet away. They had little time to stop, collect their thoughts, and assess whether McElroy or Griesbach posed a threat to their safety. The only significant physical harm suffered by the Plaintiffs was McElroy's loss of hair and cut on Griesbach's left shin. While the officers undoubtedly intended to tackle McElroy and Griesbach, they did not intend to inflict these injuries upon them. After determining McElroy and Griesbach posed no threat to their safety, the officers did nothing further to physically harm them. Additionally, the officers were justified in pointing a gun at McElroy and Griesbach until they could place them in handcuffs. See Hinojosa v. City of Terrell, 834 F.2d 1223, 1231 (5th Cir.1988), cert. denied, 493 U.S. 822, 110 S.Ct. 80, 107 L.Ed.2d 46 (1989) (finding that no Texas law "circumscribes a police officer's ability, in the course of duty, to make a conditional threat to use force if necessary by pointing a gun at someone.").
While the officers' method of apprehending McElroy and Griesbach may appear brutal, nothing in the evidence indicates they acted in bad faith or beyond the discretion delegated to police officers under these circumstances. Thus, under Texas law, the officers are protected by qualified immunity and the plaintiff's assault claims under the FTCA must fail.
McElroy and Griesbach additionally claim the officers committed false arrest and false imprisonment by placing them in handcuffs, taking them next door to Rodriguez's living room, and requiring them to answer questions. In Texas, civil liability for both false arrest and false imprisonment will attach when: 1) there is a willful detention of the person; 2) against the consent of the party detained; and 3) the detention is without the authority of law. Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985); Sanchez v. Garza, 581 S.W.2d 258, 259 (Tex.App.Corpus Christi 1979, no writ); Pete v. Metcalfe, 8 F.3d 214, 218-219 (5th Cir.1993). No action will lie against an officer for false arrest or false imprisonment where the detention was executed by virtue of legally sufficient process duly issued by a court of competent jurisdiction. Pete v. Metcalfe, 8 F.3d at 218-219; Sanchez v. Garza, 581 S.W.2d at 259. Again, the officers detained Plaintiffs during the execution of a valid search warrant issued by the United States Magistrate Judge. Probable cause existed to detain McElroy and Griesbach until the officers could verify they had no involvement in the drug trafficking activity of Rodriguez and posed no threat to the officers' safety. Permitting McElroy and Griesbach to return to their side of the duplex before confirming their innocence would have risked the escape of all the suspects and jeopardized the officers' safety. Once the *596 officers obtained enough information to certify the innocence of McElroy and Griesbach, they released them. Consequently, Plaintiffs' claims of false arrest and false imprisonment under the FTCA must also fail.[20]
In accordance with the above findings of fact and conclusions of law, the Court will enter judgment for the United States.
FINAL JUDGMENT
BE IT REMEMBERED on this the 25th day of August, 1993, the Court entered Findings of Fact and Conclusions of Law in the above-styled and numbered cause. In accordance with the Findings of Fact and Conclusions of Law the Court enters the following Final Judgment:
IT IS ORDERED, ADJUDGED AND DECREED that the Plaintiffs, Steve McElroy and Fred Griesbach, take nothing in this cause against the United States of America and that all costs be taxed to the Plaintiff for which let execution issue.
NOTES
[1] By mistake, the warrant listed 6705 Comanche Trail as the residence to be searched. Rodriguez was actually living at 6703 Comanche Trail and the officers had intended all along to search the residence at that address.
[2] The Court was particularly disturbed by this fact. The officers showed no contrition for their behavior. Officer Hildreth of the DEA testified they had no regrets for the way they conducted the investigation and raid, notwithstanding the fact that they injured innocent citizens and caused considerable property damage during the raid.
[3] Despite this fact, Plaintiffs' pleadings liberally analogize to Bivens cases wherein federal agents and officers were found individually liable for their conduct.
[4] Plaintiffs have also claimed the OCDETF's actions invaded their privacy in violation of the Fourth Amendment and amounted to cruel and unusual punishment under the Eighth Amendment. As will be seen below, the Court cannot address these constitutional torts under the FTCA.
[5] Nevertheless, the Court accepts the explanations for failure to investigate the utility records for the residence. Because such inquiries would have jeopardized the success of the entire sting operation, it was reasonable to forego them.
[6] Apparently, Griesbach listed his residence and mailing address as 6705 Comanche Trail instead of 6703 (the actual address of the duplex) to eliminate any intermingling of his mail with Rodriguez's. Even so, because the agents of the task force mistakenly believed Rodriguez resided at 6705 Comanche Trail, they would have concluded that Griesbach lived there as well.
[7] The close proximity of the owner's home to the duplex and the fact that there was no formal lease agreement would have evidenced some relationship between Plaintiffs and the owner, thereby bolstering, not diminishing, the officers' suspicions about Plaintiffs' involvement.
[8] See Exhibit G-3.
[9] The Court could infer that McElroy has argued the officers negligently ripped out his hair while tackling him or that Griesbach has contended they negligently caused him to cut on his shin. The undersigned finds that although the officers inadvertently caused these injuries, the injuries did not result from any negligence.
[10] As expressed by Justice Warren in Pierson v. Ray, "[a] policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967).
[11] This second prong regards the fact that in creating the discretionary function exception, Congress sought to preclude judicial second-guessing of administrative decisions "grounded in social, economic, and political policy through the medium of an action in tort." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984).
[12] Though there is some confusion as to which party bears the burden of proving the discretionary function exception, Gaubert implies the burden rests on the tort plaintiff to show why the conduct of the government agency or employee is not protected under the exception. Autery v. United States, 992 F.2d 1523, 1526, n. 6 (11th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1829, 128 L.Ed.2d 458 (1994).
[13] The Court should also mention the obvious underlying policy reasons for exempting the United States from actions in negligence arising out of the discretionary decisions of its law enforcement agents and officers. Were negligence actionable under these circumstances, law enforcement tactics would become hesitant, apprehensive, and less effective. In light of the rampant drug problem in this country, public policy assigns a high priority to the aggressive enforcement of the drug laws. Furthermore, by exempting negligence under these circumstances the Court does not sanction intentional police intrusions into the lives of innocent citizens. The Court is well aware of democratic peoples' aversion to that type of Orwellian or Kafkaesque police activity.
[14] While violations of the Fourth Amendment are grounds for inadmissibility of evidence, they should not automatically subject the United States to liability for negligence.
[15] This requirement is not unlike the Harlow criteria for qualified immunity in constitutional tort cases, i.e. that the officer must violate a clearly established constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982). Examples of such specific and intelligible constitutional mandates include: the requirement that an officer read Miranda warnings and the requirement that an officer refrain from using unnecessary or excessive force while physically restraining a suspect. These are both instances in which the officer knows or should know he cannot exercise his discretion; he has no discretion to deprive the suspect of his Miranda warnings nor can he choose to use excessive force. The fact that officers are specifically trained to comply with these constitutional mandates and that law enforcement departments and agencies have specific guidelines to ensure their compliance indicates an elimination of discretion. On the other hand, decisions made during the arrest that are based purely on the officer's judgment and experience, decisions not traditionally governed by policy guidelines, federal statutes, or the Constitution, remain protected by the discretionary function exception of the FTCA.
[16] It is important to emphasize that the discretionary function analysis is a preliminary, jurisdictional analysis which need not reach the merits of whether the officer actually violated the constitutional mandate or committed a constitutional tort. The Gaubert test merely instructs the reviewing court to determine whether the alleged conduct "involve[s]" mandatory compliance with a federal statute, regulation, or policy, not whether the statute, regulation, or policy was violated. Further, the Fifth Circuit Court of Appeals has proclaimed the FTCA does not encompass federal constitutional torts and it is therefore improper to adjudicate the merits of such torts under the FTCA. Davis v. United States, 961 F.2d 53, 57 (5th Cir.1991). The merits of these torts are properly adjudicated in an action under Bivens or 42 U.S.C. § 1983. In this respect, the Court disagrees with Sutton v. United States, supra because that decision suggests that a court assessing the applicability of the discretionary function exception should consider the merits and decide whether the accused officer actually violated the plaintiff's constitutional rights. In fact, Sutton proclaims that a "classic Bivens-style tort, in which a federal law enforcement officer uses excessive force ... simply does not involve the exercise of discretion as that term has been applied under § 2680(a)." Sutton v. United States, 819 F.2d at 1293. By following this method a court would essentially predetermine FTCA liability by applying federal constitutional law in lieu of state tort law. For example, if the court determines the officer used excessive force and therefore was not performing a discretionary function, it would be impossible to then apply § 2680(h) and conclude he was acting in good faith, within his discretion and is therefore not liable under the state law for assaultgood faith and discretion are elements to consider when determining whether a police officer is liable for assault under Texas law. In other words, a conclusion on the merits that the discretionary function exception of § 2680(a) does not apply precludes the analysis based on state tort law required under § 2680(h). Hence, when assessing the viability of the FTCA's discretionary function exception, the courts should merely consider the allegations in the complaint to see whether they concern an area within the officer's discretion. The courts should abstain from deciding the merits of an FTCA claim by applying constitutional law; the merits must be considered exclusively within the framework of the state tort laws. Brown v. United States, 653 F.2d 196, 201 (5th Cir. Unit A Aug. 1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982).
[17] 28 U.S.C. § 1346(b) requires application of the law of the state where the act or omission occurred. Brown v. United States, 653 F.2d 196, 201 (5th Cir. Unit A Aug. 1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982).
[18] There is a dearth of caselaw in this area because, in most cases, police officers are sued individually as Bivens defendants, under federal law. In addition, the Texas Tort Claims Act has no equivalent to section 2680(h) of the FTCA. The State does not waive its sovereign immunity for intentional torts of law enforcement officers. See, e.g., City of San Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex.App.San Antonio 1990, writ denied) (declaring the Texas Tort Claims Act specifically exempts intentional torts from the waiver of immunity and provides no exception for the intentional torts of law enforcement officers).
[19] Thus, the Court finally reaches the merits of the discretionary function question, i.e. whether the officers, when apprehending Plaintiffs, were acting within their discretion under Texas law.
[20] Plaintiffs have not asserted a state tort cause of action for the alleged injuries resulting from their exposure to cold temperatures. They appear to claim this exposure amounted to cruel and unusual punishment in violation of the Eighth Amendment. Again, the FTCA does not encompass constitutional tort claims. See Note 11, supra. | 01-03-2023 | 10-30-2013 |
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251 Ga. App. 401
URNESS
v.
The STATE.
No. A01A1076.
Court of Appeals of Georgia.
August 28, 2001.
William J. Mason, Atlanta, for appellant.
J. Gray Conger, District Attorney, Michele C. Ivey, Assistant District Attorney, for appellee.
MILLER, Judge.
A jury found Rhonda Urness guilty of one count of theft by taking. She appeals her conviction and the trial court's denial of her motion for new trial. Urness claims that the trial court erred in admitting evidence of two similar transactions and that the evidence was insufficient to support the verdict. We affirm because the similar transaction evidence was admissible under Williams v. *547 State[1] and because the evidence was sufficient to support her conviction under the standard of Jackson v. Virginia.[2]
On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury's verdict.[3] So viewed, the evidence shows that Urness began working at Miriam's Café & Gallery in 1996 and was promoted to general manager by January 1997. Urness was responsible for closing the cash register at night and making bank deposits, and she was given authority to pay vendors with money from the cash register or with checks. While Urness was manager, the cash register seldom had cash; she explained to the owner, Miriam Tidwell, that most customers paid with credit cards. There were also an unusually high number of voided sales.
In March 1998 the local chamber of commerce hired the restaurant to deliver lunches during its membership drive. Urness failed to make the deliveries two days in a row and was fired. Tidwell did not suspect Urness of any criminal wrongdoing at that time and gave her two months severance pay.
After Urness left, Tidwell discovered that she had made unauthorized charges for personal items on the restaurant's trade account. When informed of this, Urness agreed to reimburse the money. Tidwell noticed that with Urness no longer acting as manager, the restaurant had significant cash deposits. A local merchant informed Tidwell that Urness had exchanged meals for products from his store. Urness had no authority to make such an exchange, but had received over $550 worth of clothing for meals.
After learning about Urness's agreement to trade restaurant meals for personal clothing, Tidwell hired two bookkeepers to perform an audit for the period when Urness was the restaurant manager. The bookkeepers compared the daily balance sheets prepared by Urness to the cash register records (or "Z report"), and found over $40,000 in discrepancies during the period in which Urness was general manager.
After the bookkeepers' review, Tidwell hired a professional auditor, who audited the financial records on 11 selected days during Urness's tenure as general manager, based on the bookkeepers' report showing unusual discrepancies on those days. The audit showed a number of inconsistencies in the financial records of the café consistent with theft, including (1) sales resulting in negative cash, (2) cash designated as paid to vendors with no supporting receipts, (3) cash designated as "back to drawer," which the expert testified was not a legitimate designation, (4) discrepancies between cash deposits and receipts, (5) missing guest checks, (6) unusual gift certificate redemptions, and (7) an entry showing more cash money paid out to serving staff for tips left by customers paying with credit cards than was possible with the cash on hand. Another witness testified that he saw Urness taking small amounts of cash from the register with the explanation that she was reimbursing herself, but she did not provide a corresponding receipt.
1. Urness claims the trial court erred in admitting evidence of two similar transactions. Such evidence is admissible if (1) it is presented for an appropriate purpose, (2) there is sufficient evidence to show the accused committed the independent offense, and (3) there is a sufficient similarity between the independent offense and the crime charged so that the proof of the former tends to prove the latter.[4] A trial court's admission of similar transaction evidence will be upheld on appeal unless its ruling is clearly erroneous.[5]
Urness claims that the State did not show she committed the similar transactions by a preponderance of the evidence. We disagree. The first similar transaction occurred *548 during Urness's employment at a Steak-'N-Shake restaurant following her dismissal from Miriam's. Testimony showed that Urness was last to have possession of cash from the restaurant which was supposed to be deposited in its bank account, but was not. The second transaction occurred while Urness was employed at Domino's Pizza. Testimony showed that Urness was responsible for depositing money into Domino's bank account that was never deposited.
Urness relies on Penson v. State[6] to argue that the State did not successfully prove the similar transactions. In Penson the State improperly tried to present a similar transaction in an arson prosecution based solely on the defendant's appearance at the scene of another fire without an acceptable explanation to the police.[7] This can be contrasted to the evidence presented by the State here, because testimony that Urness was in possession of her employers' cash and was responsible for depositing it at the bank, but never did, is evidence that she stole the money.[8] Thus, the trial court did not clearly err in admitting the similar transactions.
2. The jury found Urness not guilty on nine counts of forgery and one count of theft by deception and deadlocked on one forgery count. She was convicted on Count 1 of the indictment, which charged her with theft by taking over $500 in cash from the restaurant. OCGA § 16-8-2 defines theft by taking as when a person "unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated."
This case involves a crime of deception and abuse of trust. The evidence presented is circumstantial by necessity. The State presented extensive evidence indicating a pattern of manipulation of financial records prepared by Urness, as well as evidence of missing cash while Urness was responsible for the register.
The evidence was all circumstantial. If separated, and divided into segments, no one segment would be sufficient to convict. But when added together, as a whole it is sufficient to warrant a conviction, and it excludes every other reasonable hypothesis save that of guilt of the accused. In such cases it is not necessary that the circumstances remove every possibility of the defendant's innocence.[9]
We have reviewed the record and hold that, taken as a whole, the evidence is sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Urness was guilty of theft by taking.[10]
Judgment affirmed.
ANDREWS, P.J., and ELDRIDGE, J., concur.
NOTES
[1] 261 Ga. 640, 409 S.E.2d 649 (1991).
[2] 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
[3] Grant v. State, 195 Ga.App. 463, 464(1), 393 S.E.2d 737 (1990).
[4] See Williams, supra, 261 Ga. at 642(2)(b), 409 S.E.2d 649.
[5] Jones v. State, 239 Ga.App. 733, 734(1), 521 S.E.2d 883 (1999).
[6] 222 Ga.App. 253, 474 S.E.2d 104 (1996).
[7] Id. at 255-256(2), 474 S.E.2d 104.
[8] See generally Walker v. State, 156 Ga.App. 842, 843(1)(a), 275 S.E.2d 755 (1980).
[9] (Citations and punctuation omitted.) Crumley v. State, 185 Ga.App. 795, 797(1), 366 S.E.2d 171 (1988).
[10] See Jackson, supra. | 01-03-2023 | 10-30-2013 |
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251 Ga. App. 377
BAKER
v.
The STATE.
No. A01A1494.
Court of Appeals of Georgia.
August 24, 2001.
*325 Billy M. Grantham, Donalsonville, for appellant.
J. Brown Moseley, Dist. Atty., Ronald R. Parker, Asst. Dist. Atty., for appellee.
MILLER, Judge.
Construed in favor of the guilty verdict, the evidence showed that a passenger threw a can containing a large amount of cocaine out a car window as police chased the eluding vehicle. The passenger escaped, but the driver was apprehended and found with a large amount of cash. He was convicted of various traffic violations and of possession of cocaine with the intent to distribute. Enumerating the insufficiency of the evidence on the drug conviction and ineffective assistance of counsel, he moved for a new trial, which the court after an evidentiary hearing denied. He raises the same two issues on appeal. Discerning no error, we affirm.
1. Regarding sufficiency of the evidence, an appellate court does not weigh the evidence nor determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[1] i.e., whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The conviction challenged here is the drug conviction, the essential elements of which are the possession of cocaine with intent to distribute.[2]
Here the evidence showed that at 2:30 a.m. police observed Danny Baker driving a vehicle at an excessive rate of speed. As they began to follow him, he abruptly turned right without signaling and forced another vehicle off the road. The police activated their blue lights, and Baker sped away to elude capture. As Baker drove near *326 a cornfield, his passenger threw a can out the car window that contained over 17 grams of cocaine. Baker slowed the vehicle to allow the passenger to escape into the cornfield, and Baker then brought the car to a stop at a dead end. When apprehended, he was found with a pager and over $1,100 in cash, of which the most common denomination was $20 bills. Testimony showed that such was indicative of drug distribution. The passenger was never found and did not testify.
Baker's primary argument is that the evidence linked only the unknown passenger and not Baker to the cocaine. Price v. State[3] upheld a drug conviction under similar facts, holding first that joint constructive possession with another would sustain a conviction for possession of contraband.[4]Price then held that the defendant-driver's attempt to elude officers and the passenger's act of throwing cocaine out the window were sufficient evidence of joint constructive possession.[5] The amount of cocaine recovered (over 26 grams) and the large amount of money found on the defendant (nearly $3,000) supported the conviction of possession with intent to distribute.[6] The material facts here tying Baker to the cocaine and to an intent to distribute are indistinguishable; indeed, we have the additional evidence that Baker purposely slowed down the vehicle so the passenger could escape into the cornfield. The evidence sufficed to sustain Baker's drug conviction.
2. Baker contends that his trial counsel rendered ineffective assistance in that counsel failed to locate and call the unknown passenger as a witness. At the motion for new trial hearing, only Baker testified, who claimed that he made his counsel aware of the need to subpoena the passenger (known to Baker only as "John") for trial, and that the guilty verdict would have been different if "John" had testified. To establish ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense.[7] We affirm the trial court's findings in this regard unless clearly erroneous.[8]
Recognizing that trial strategy and tactics do not equate with ineffective assistance,[9] Baker in his brief argues, "It cannot be asserted that the failure to call John as a witness was trial strategy because there is nothing in the record to explain the failure to call John. We don't know if trial counsel even attempted to find John." Since appellate counsel, who had more time, also was unable to produce the witness at the motion for new trial hearing, the trial court could correctly assume that trial counsel attempted to locate the witness but faced insurmountable obstacles.[10]
Moreover, similar to the defendant in McClarity v. State,[11] Baker misapprehends the burden of proof. Baker, not the State, must overcome the strong presumption that counsel's conduct falls within the broad range of reasonable professional conduct.[12] As in McClarity[13] and in Foreman v. State,[14] Baker did not call his trial counsel as a witness at the hearing on his motion for new trial. Thus, he made no affirmative showing that the purported deficiency in his trial counsel's representation was indicative of ineffectiveness and was not an example of a conscious *327 and deliberate trial strategy.[15] Trial counsel may have located and interviewed the witness and determined that his testimony was unhelpful.
In the absence of contrary evidence, the trial court is to presume that trial counsel's actions are part of trial strategy.[16] Thus, unless the matter relates to an error allegedly made during the course of the trial that can be determined purely from the trial record, the failure to call trial counsel as a witness in the motion for new trial hearing alone allows the trial court to assume that the matter was a deliberate trial strategy and to rule against defendant's claim of ineffective assistance.[17]
Based on this reasoning, we have affirmed findings of effective assistance where defendant claimed that his counsel failed to find or call a key witness but where the defendant failed to call counsel to testify as to the matter.[18] Also, without the missing witness's testimony at the post-trial hearing, no evidence shows what the witness would have said at the original trial, so it would be pure conjecture to conclude the witness would have helped the defense.[19] No evidence supported a finding that Baker's trial counsel's performance was deficient.
Nor did the evidence show that the alleged deficiency prejudiced the defense. Where the missing witness does not testify at the motion for new trial hearing, no evidence supports the claim that the witness was crucial to the defense or that the witness could have been located.[20] "Thus, even if we were to assume that trial counsel should have taken additional steps to locate and interview this witness, [Baker] has failed to show how this failure prejudiced his defense."[21] The trial court did not clearly err in concluding that Baker failed to carry his burden of showing prejudice.
Judgment affirmed.
ANDREWS, P.J., and ELDRIDGE, J., concur.
NOTES
[1] 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
[2] OCGA § 16-13-30(b).
[3] 240 Ga.App. 37, 522 S.E.2d 543 (1999).
[4] Id. at 38-39(1), 522 S.E.2d 543.
[5] Id. at 39(1), 522 S.E.2d 543.
[6] Id.
[7] Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
[8] Id.
[9] See Rogers v. State, 247 Ga.App. 219, 232(18)(b), 543 S.E.2d 81 (2000).
[10] See Corza v. State, 273 Ga. 164, 168(4)(a), 539 S.E.2d 149 (2000).
[11] 234 Ga.App. 348, 350(3), 506 S.E.2d 392 (1998).
[12] Id.
[13] Id. at 350-351(3), 506 S.E.2d 392.
[14] 200 Ga.App. 400, 401(3), 408 S.E.2d 178 (1991).
[15] McClarity, supra, 234 Ga.App. at 351(3), 506 S.E.2d 392; Foreman, supra, 200 Ga.App. at 401(3), 408 S.E.2d 178.
[16] McClarity, supra, 234 Ga.App. at 351(3), 506 S.E.2d 392.
[17] Id.; see Archie v. State, 248 Ga.App. 56, 58(2), 545 S.E.2d 179 (2001); Harkness v. State, 225 Ga.App. 864, 866(2), 485 S.E.2d 810 (1997).
[18] Foreman, supra, 200 Ga.App. at 401(3), 408 S.E.2d 178; see McClarity, supra, 234 Ga.App. at 353(3)(d), 506 S.E.2d 392.
[19] See Roberts v. State, 244 Ga.App. 330, 332(2)(b), 534 S.E.2d 526 (2000).
[20] Curry v. State, 238 Ga.App. 511, 519(3)(b), 519 S.E.2d 269 (1999); see Cowan v. State, 243 Ga. App. 388, 397(10)(b), 531 S.E.2d 785 (2000).
[21] (Citations omitted.) Curry, supra, 238 Ga. App. at 519(3)(b), 519 S.E.2d 269. | 01-03-2023 | 10-30-2013 |
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251 Ga. App. 489
JOHNSON
v.
The STATE.
No. A01A1320.
Court of Appeals of Georgia.
September 7, 2001.
*613 Franklin & Hubbard, William F. Holbert, Ralph J. Hunstein, Monroe, for appellant.
W. Kendall Wynne, Jr., Dist. Atty., Eugene S. Hatcher, Jr., Asst. Dist. Atty., for appellee.
MIKELL, Judge.
Jermaine Johnson appeals the denial of his motion for discharge and acquittal. Johnson was indicted on April 10, 2000, on a single count of trafficking in cocaine. At his arraignment on May 18, 2000, he filed the following "Motion to Demand for Trial": "COMES NOW JERMAINE JOHNSON, defendant in the above-styled case this the term said indictment was found, and there being jurors and panel qualified to try such case at this time. The defendant makes this demand for trial and ask the same be placed on the minutes, and that he be tried at this term or the next term of this court." Walton County has four terms of court, beginning on the first and second Mondays in February, May, August, and November.[1] Johnson was not tried during either the May or the August term of court; he subsequently filed a motion for discharge and acquittal. The case was then set for trial on January 22, 2001, during the November term of court. However, on that date, a hearing was held on Johnson's motion. The court ruled that Johnson's "Motion to Demand for Trial" was *614 insufficient to trigger the sanctions of OCGA § 17-7-170. The court further determined that even if the "motion" had been a valid demand for a speedy trial, no juries were qualified and impaneled to try Johnson when he filed the document or for the remainder of the May term, so the demand did not become effective until the August term. Thus, the court ruled that the setting of Johnson's trial during the November term of court was timely. We disagree and reverse.
1. OCGA § 17-7-170 provides:
(a) Any person against whom a true bill of indictment ... is filed ... may enter a demand for trial at the court term at which the indictment ... is filed or at the next succeeding regular court term thereafter.... (b) If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged....
In reviewing the trial court's ruling that Johnson's "Motion to Demand for Trial" was insufficient to invoke OCGA § 17-7-170, we turn to the standard recently announced in Bennett v. State:[2]
In determining whether a defendant is entitled to the extreme relief of discharge and acquittal, the trial court must decide whether the defendant's "demand, considering both its caption and its text, can reasonably be construed as a demand for a speedy trial under the provisions of OCGA § 17-7-170." This Court holds that the minimum acceptable standard for such demand requires that the defendant's demand for trial be coupled with some other language that places the State on reasonable notice that a speedy trial under the sanctions of OCGA § 17-7-170 is being invoked, i.e., a reference to trial at the next term, reference to a "speedy trial," use of the language of the Code, or reference to the Code section.[3]
Accordingly, the preliminary issue in this appeal is whether Johnson's "Motion to Demand for Trial" reasonably notified the state that he was seeking a speedy trial pursuant to OCGA § 17-7-170. We hold that although the demand was not a model of clarity, it met the minimal acceptable standard set forth in Bennett. The demand asserted that there were "jurors and panel qualified to try such case at this time" and demanded that Johnson be tried "at this term or the next term of court." Thus, the demand was coupled with two of the four possibilities specified in Bennett. It specifically referred to a trial at the next term, and it quoted other language from the Code section.
"[T]he emphasis of this Court's review has always been on whether the true nature of the pleading was apparent to all parties and was clearly presented for what it purported to be."[4] The absence of a citation to OCGA § 17-7-170 and the inclusion of the word "motion" were not fatal flaws in the document. The true nature of this pleading should have been apparent to the state. The trial court erred in holding otherwise.
We next address the issue of when Johnson's demand for trial became effective. OCGA § 17-7-170 provides that when a person makes a demand for speedy trial, he is entitled to be discharged and acquitted of the offenses charged if he is not tried during the term in which his demand for trial is made or at the next regular term, provided there were juries impaneled and qualified to try him at each of those terms. Where a "demand is filed during a term in which there is no jury impaneled to try the case, the time allowed by the two-term requirement does not begin to run until the term following that during which the demand was filed."[5]
In the case sub judice, the trial court ruled that the time did not begin to run until the *615 August term. Initially, the court determined that by the time Johnson filed his demand on May 18, 2000, the trial court had excused the juries for the remainder of the May-July term. Accordingly, the trial court found that on that date, no jurors were impaneled and qualified to try Johnson. We take no issue with this ruling, but it does not end our inquiry.
The transcript of the hearing held on the motion for discharge and acquittal reveals that 170 jurors were summoned for duty on June 19 pursuant to an order[6] issued by Judge Samuel D. Ozburn specially setting a death penalty trial to begin on that date. The order expressly "declares that there will be a special criminal session of the May term of Walton Superior Court commencing June the 19th." (Emphasis supplied.) Despite its clear language, the trial court concluded that Judge Ozburn's order created a special term of court pursuant to OCGA § 15-6-20 rather than a special session of the May term. A special term is one that is called after the adjournment of a regular term and before the beginning of the next regular term,[7] and it is excluded from the time in which a defendant must be tried pursuant to his speedy trial demand.[8] A special session held within a regular term, however, is not excluded. Here, Judge Ozburn clearly called a special session. There is no evidence in the record that the May term had been expressly adjourned. Moreover, it appears that a sufficient number of qualified jurors were impaneled on June 19. "[F]or felony cases pending in the superior court it would take the presence of a panel of forty-eight to fulfill the requirements of the statute."[9] We must conclude, therefore, that Johnson's demand for trial was made during a term in which there were qualified juries impaneled, a sufficient number of which were available to try his case. As he was not tried during the August term of court, the denial of his motion for discharge and acquittal must be reversed.
In so holding, we are mindful of the special needs associated with juries summoned for murder trials in which the state seeks the death penalty. We appreciate a trial judge's reluctance to interfere with a fellow jurist's death penalty trial. Nonetheless, it is apparent that the array summoned for June 19, after allowing for "no shows" and statutory exemptions, would have yielded a plentitude of jurors to try Johnson's case in accordance with his demand for trial, even after a jury with abundant alternates was impaneled for the murder trial. The enactments of our legislature bind this Court, and we are constrained to impose the extreme sanction mandated by OCGA § 17-7-170.
2. Johnson assigns error to the trial court's failure to enter a final order on the state's petition to modify/revoke his probation. However, the absence of a final, appealable order gives this Court nothing to review.[10] In any event, the probation revocation proceeding is a separate matter over which this Court currently lacks jurisdiction.
3. Johnson's remaining enumerations of error, addressing the denial of his motion to suppress and certain discovery motions, are rendered moot by our holding in Division 1.
Judgment reversed.
BLACKBURN, C.J., and POPE, P.J., concur.
NOTES
[1] OCGA § 15-6-3(2)(B).
[2] 244 Ga.App. 149, 534 S.E.2d 881 (2000).
[3] (Citations and emphasis omitted.) Id. at 150-151(1), 534 S.E.2d 881.
[4] Price v. State, 245 Ga.App. 128, 133(2)(b), 535 S.E.2d 766 (2000).
[5] (Citations and punctuation omitted.) MacInnis v. State, 235 Ga.App. 732, 734, 510 S.E.2d 557 (1998).
[6] The order is attached as an exhibit to the state's brief. Generally, attachments to briefs that were not also part of the record below are not considered on appeal. Williams v. State, 193 Ga.App. 677, 678, 388 S.E.2d 893 (1989). However, in this instance, a review of the hearing transcript reveals the contents of the order. Accordingly, we will consider it on appeal. Id.
[7] McGinnis v. Ragsdale, 116 Ga. 245, 246-247, 42 S.E. 492 (1902); Proveaux v. State, 198 Ga. App. 119, 120(1), 401 S.E.2d 12 (1990).
[8] Barkley v. State, 179 Ga.App. 795, 348 S.E.2d 122 (1986).
[9] (Punctuation and footnote omitted.) Kirk v. State, 194 Ga.App. 801, 802, 392 S.E.2d 249 (1990).
[10] Robbins v. State, 193 Ga.App. 5, 6, 387 S.E.2d 18 (1989). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1727086/ | 970 So. 2d 837 (2007)
FELDER
v.
STATE.
No. 3D06-2840.
District Court of Appeal of Florida, Third District.
December 5, 2007.
Decision without published opinion. App. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2571562/ | 160 P.3d 1050 (2007)
David and Carole BAUMAN, husband and wife; Respondents/Cross-Appellants,
Robert Boyd and Patricia M. Maroushek, husband and wife; Robert and Susan Evans, husband and wife; Peter and Kaye Hutto, husband and wife; Richard and Liane Seims, husband and wife; Karen Kramer; Joy Finnigan; Calista Whiting; Robert and Mary Beth Spector, husband and wife; Vicki Sessions, Plaintiffs,
v.
Ronald and Lauren TURPEN, husband and wife, and the marital community comprised thereof, Appellants/Cross-Respondents.
No. 57192-3-I.
Court of Appeals of Washington, Division 1.
April 23, 2007.
Publication Ordered June 12, 2007.
*1052 Tatayana A. Gidirimski, James A. Oliver, Seattle, David A. Herrman, Bucklin Even Pllc, Mercer Island, Counsel for Appellants.
Peter L. Buck, Kitteridge Oldham, Heather J. Pearce, Molly Anne Lawrence, Buck & Gordon, Seattle, Counsel for Respondents.
AGID, J.
¶ 1 In April 2004, the Baumans filed a complaint against the Turpens to enforce a deed restriction that limited any home built on the Turpens' property to "one story." The Turpens began constructing their home after the lawsuit was filed. The trial court granted the Baumans' motion for partial summary judgment, concluding that the 1949 covenant could not be interpreted by reference to the 1997 Uniform Building Code (UBC) or Seattle Building Code (SBC). After a three-day bench trial, the court found that the covenant was intended to preserve the views from neighboring homes and ordered the Turpens to abate the violation by modifying their roof. The court did not consider the hardship imposed on the Turpens by the abatement order because it found they were not innocent parties. The court later granted the Turpens' motion for reconsideration and modified the terms of the abatement. The Turpens challenge the trial court's orders on numerous grounds. The Baumans cross-appeal the order amending the abatement.
¶ 2 Because the trial court must construe restrictive covenants by discerning the intent of the drafter, it correctly concluded that the 1997 UBC and SBC did not assist in construing the 1949 deed restriction. Extrinsic evidence may be used to determine the intent of *1053 the drafter. Here, the trial court considered the topography of the neighborhood and the language of other restrictive covenants the drafter imposed on neighboring lots and decided that the one-story restriction was intended to preserve the views from neighboring homes. That evidence was relevant and probative and supports its decision that the restrictive covenant was designed to protect views from upland homes. Injunctive relief is a proper remedy for violations of restrictive covenants. Under Washington law, the Turpens were not entitled to ask the court to consider hardships to them because, by constructing their home after the lawsuit was filed, they ceased being innocent defendants. Accordingly, the trial court could not modify its order based on the hardships the Turpens alleged on reconsideration. We affirm the original orders and reverse the order on reconsideration.
FACTS
¶ 3 The Turpens and the Baumans own adjoining lots in West Seattle. Their neighborhood is built on a hill which slopes downward from east to west, providing western and northern views of Puget Sound and the Olympics. The Bauman lot is east of and uphill from the Turpen lot. These lots were part of a parcel formerly owned by George Gilbert, who divided his parcel into twelve lots, five of which were downhill (westerly) lots. He sold the lots one-by-one from the late 1940's to the early 1950's and recorded restrictive covenants on four of the five downhill lots. Gilbert built a 22-foot one-story home on the fifth downhill lot, but he did not sell the lot subject to a restrictive covenant. He placed no restrictions on the uphill lots.
¶ 4 In 1949, Gilbert recorded a covenant on the lot now owned by the Turpens that reads: "only one (1), one (1) story house with garage attached not less than five (5) rooms. House must be completed before occupancy." The deeds on three of the other downhill lots contained restrictive covenants that required owners to build single family residences. They also included restrictions that required either that new homes conform to other homes in the tract or be limited to one story.
¶ 5 In 1997 the Baumans purchased an uphill lot because of its sweeping panoramic views of the entire east-west expanse of Puget Sound. Some of these views were across the Turpen lot. Before they bought the lot, the Baumans studied the restrictive covenants in the Turpen deed and estimated the height of a future one-story home on this lot based on the heights of homes on adjacent lots that were 22 to 23 feet high.
¶ 6 On August 18, 1997, the Turpens purchased their lot and hired architect Mark Nelson to design their home. Nelson consulted the Seattle Department of Construction and Land Use (DCLU) about the definition of "one story." DCLU told him to follow the Uniform Building Code (UBC).[1] On February 27, 1998, the Turpens received a letter from attorney Michael Warren, who represented several of their uphill neighbors, asking for copies of the plans for their home. Over the course of the next five years, the Turpens and their neighbors, including the Baumans, exchanged numerous letters about the plans.
¶ 7 On July 21, 1999, the Turpens applied for a building permit for a one-story house with a daylight basement, but DCLU concluded that the plans were for a two-story house as defined by the UBC. On July 3, 1999, the neighbors filed a complaint against the Turpens. They later dismissed the case because no building permit had been issued. At that time, Warren told the Turpens he would file suit again once the permit was issued. The Turpens redesigned their house and sent Warren a letter from DCLU which confirmed that their proposed home complied with the UBC as a one-story home. On August 31, 2000, Warren notified the Turpens in writing of his position that the current UBC did not apply to the covenant and it should be construed to achieve its purpose of protecting views. On June 19, 2002, DCLU issued a permit to the Turpens for a 2,900 square-foot home based on the redesigned plans. But rather than build that *1054 home, they hired Randall Munsen to redesign the structure. The Munsen design changed the roof line from a gable end to a hip and ridge design and increased the square footage to 5,071. On December 4, 2002, Warren notified the Turpens that in Boyd v. Michaels, a 1989 case brought under the neighborhood covenants, the trial court defined the term "one story" as requiring new homes to conform to other homes in the district and the 1997 UBC.[2]
¶ 8 On March 16, 2004, DCLU issued a permit for a one-story house based on Munson's design. The Baumans learned about this permit on April 9, 2004. On April 15, 2004, before construction began, the Baumans and two other neighbors, Evans and Hutto, filed a complaint against the Turpens seeking injunctive relief. On April 19, 2004, the Turpens hired a surveyor to set points for the soldier pilings. Sometime after May 19, 2004, the Turpens poured a foundation and began construction.
¶ 9 On July 1, 2005, the trial court granted the Turpens' motion for summary judgment against plaintiffs Hutto and Evans but denied it as to the Baumans. On July 22, 2005, the trial court heard oral argument and granted the Baumans' motion for partial summary judgment, concluding that the meaning of the phrase "one story" in the 1949 covenant was not defined by the 1997 Uniform Building Code and/or 1997 Seattle Building Code. The Turpens stopped construction on their home when this order was issued.[3]
¶ 10 After a bench trial, a different trial judge concluded that the purpose of the covenant was to preserve neighboring views and ordered the Turpens to abate or modify their roof. The October 3, 2005 order stated that "[a]n acceptable modification is a flat roof built on 2 foot trusses constructed on top of the existing wall plates. There is no requirement that the roof be multilevel or that the interior living space of the house be invaded." After trial, the Turpens moved for reconsideration. The trial court did not request a response from the Baumans. On October 19, 2005, it granted an Order Amending Order stating:
The Turpen house shall be abated or modified. An acceptable modification is a flat roof built on trusses ranging in height from 30 inches on the ends to 36¼ inches in the center, constructed on top of the existing wall plates. There is no requirement that the roof be multilevel or that the interior living space of the house be invaded.
The Turpens appeal the trial court's July 22 and October 3 orders. The Baumans cross-appeal challenges the October 19 Order Amending Order.
DISCUSSION
July 22, 2005, Partial Summary Judgment Order
¶ 11 On July 22, 2005, the trial court granted the Baumans' partial summary judgment motion, concluding that the term "one story" could not be defined by the 1997 Uniform Building Code and/or 1997 Seattle Building Code. The Turpens challenge this order, arguing the term should be interpreted by its ordinary and usual meaning and the court should have applied the 1997 UBC and/or 1997 Seattle UBC.
¶ 12 The primary goal in interpreting covenants that run with the land is to determine the drafter's intent and the purpose of the covenant at the time it was drafted.[4] Interpretation of a restrictive covenant is a question of law we review de *1055 novo.[5] Neither the 1997 UBC nor the SBC was in effect when Gilbert drafted the "one story" covenant that restricts building on the Turpen lot. The trial court could not define the intent or purpose of a covenant drafted in 1949 by these later-enacted codes. Its ruling on summary judgment was correct.
¶ 13 The Turpens also argue the trial court should have followed the Superior Court's earlier decision in Boyd v. Michaels, which found that the meaning of the term one story was not to perfectly preserve the views of the neighbors but was defined by the then-current UBC to conform with other homes in the district.[6] Even though Boyd v. Michaels concerned the same subdivision and was decided by the same court, the trial court here could properly disregard it because the findings of fact and conclusions of law of a superior court are not legal authority and have no precedential value.[7]
Use of Extrinsic Evidence to Interpret Restrictive Covenants
¶ 14 In a bench trial where the court has weighed the evidence, our review is limited to determining whether substantial evidence supports the trial court's findings of fact and whether those findings support the court's conclusions of law.[8] Issues of law are reviewed de novo.[9]
¶ 15 On October 3, 2005, after a bench trial on the merits, the court determined that:
3. Using the building code definition of "one story" would not effectuate [the grantor's] intent. The code defines which level constitutes the first story but does not limit the height of that story except as the overall height is controlled by the zoning ordinance. If houses on the lower lots were built as high as the zoning ordinances allowed, then the views from the upper lots would be lost entirely.
4. The best evidence of George Gilbert's intent is the house that he constructed on one of the lower lots just prior to placing the deed restriction on the remaining lower lots.
5. The Gilbert house was built in a manner that preserved the view of Puget Sound from the uphill lot to the east. The Turpens' house is immediately north of the original Gilbert house and slightly downhill on its east side yet the east side of the Turpen roof is higher than the Gilbert's. Thus it is clear that the Turpen house presents substantially more view blockage [than] the house constructed by the maker of the deed restriction.
¶ 16 The Turpens argue their deed restriction does not mention view preservation or a height restriction and assert the trial court erred as a matter of law by construing intent not found in the covenant's express language. They also assert the trial court made an error of law by failing to apply the objective manifestation theory of contracts and improperly considering extrinsic evidence to determine the grantor's intent. Had Gilbert intended to preserve the views, they argue he would have imposed a height restriction or included express language to that effect in the covenant. They also argue that Gilbert did not intend that the restriction preserve neighboring views because he did not impose a restrictive covenant on the lot on which he built a house and later sold without a deed restriction requiring conformity with other houses in the area. Relying on our holding in Day v. Santorsola, they also contend the lack of direct evidence of Gilbert's intent destroys the Baumans' claim that the purpose of the covenant was to preserve uphill *1056 owners' views.[10] The Baumans argue the trial court's conclusion was based on substantial evidence that Gilbert intended to preserve the views because he placed building restrictions only on the downhill lots and built a one-story 22-foot home on the only unrestricted downhill lot.
¶ 17 The recognized principles for construing covenants are set forth in Burton v. Douglas County.[11] Courts are to determine the drafter's intent by examining the clear and unambiguous language of a covenant.[12] We must consider the instrument in its entirety and, when the meaning is unclear, the surrounding circumstances that tend to reflect the intent of the drafter and the purpose of a covenant that runs with the land.[13] While the interpretation of a restrictive covenant is a question of law, intent is a question of fact.[14] Extrinsic evidence of intent is admissible if relevant to interpreting the restrictive covenant. In Hollis v. Garwall, the Supreme Court applied the Berg v. Hudesman[15] context rule to interpreting restrictive covenants.[16] Under this rule, evidence of the "surrounding circumstances of the original parties" is admissible "to determine the meaning of the specific words and terms used in the covenants."[17] That is precisely what the trial court did here.
¶ 18 Our decision in Foster v. Nehls,[18] supports the trial court's reliance on extrinsic evidence to conclude that the one-story restriction was intended to preserve neighboring views. In Foster, we upheld the trial court's use of extrinsic evidence to find the grantor's intent in using the term "one and one-half stories" in a restrictive covenant.[19] Here, as there, extrinsic evidence was necessary to define the operative term because it "`was not defined either with reference to any building code or inches and feet measurement.'" Thus, the trial court properly considered evidence of neighborhood topography and what limits the grantor placed on his own house to decide what "one story" meant to him when he wrote it.
¶ 19 Our holding in Day v. Santorsola does not help the Turpens because it was not based solely on the absence of evidence of the drafter's intent. The covenants in Day restricted homes within the community from exceeding two stories and limited the height of bushes and shrubs to either a maximum of 20 feet or a height that would not block the view from other tracts.[20] We held that the record in Day supported the trial court's findings and conclusions that view preservation was not the primary purpose of the two-story restriction because the drafter expressly limited the height of vegetation to preserve the views but did not include similar language in the home restrictions. In addition, the subdivision committee in Day had not previously interpreted the two-story restriction as a view-protection device.[21]
¶ 20 The evidence here is entirely different from that in Day. The restrictive covenant on the Turpens' lot reads: "[o]nly one (1), one (1) story house with garage attached not less than five (5) rooms. House must be completed before occupancy." Of the six downhill lots he created, Gilbert imposed the "one story" restriction on three, required that new homes built on two others confirm to other *1057 buildings in the neighborhood, and built his own 22-foot one-story home on the other.
¶ 21 Before entering its findings of fact and conclusions of law, the trial court heard three days of testimony, reviewed over 200 exhibits, and visited the area, including the Bauman and Turpen homes. The record supports the trial court's decision that neighborhood conformity and view preservation were the concerns Gilbert sought to address in imposing restrictive covenants on the downhill lots. The current building code definition of "one story" would not effectuate Gilbert's intent because it addresses neither of those concerns. It allows the Turpens to build a much larger house that blocks a significant part of their uphill neighbor's view because height and bulk are restricted only by the zoning of the property, not the building code.
¶ 22 The Turpens argue that the view preservation is a subjective, vague standard and the Baumans' expectation that their view would remain unobstructed is unreasonable. We disagree. Preservation of neighboring views is a recognized interest and is not per se unreasonable.[22] Rather, as we have indicated in our holding in Foster, covenants preserving views will be upheld when substantial evidence supports them.[23] The findings here are supported by substantial evidence, and the court's conclusions are properly drawn from those findings.
Findings of Fact
¶ 23 In its October 3, 2005 order, the trial court made two central findings about the Turpen home and its impact on the Baumans' view:
13. The Turpen house has three floor levels. It has a lower level with three bedrooms, a utility room, a storage room, and a recreation room. It has a mid floor level with a kitchen, a nook, dining room, living room and a family room. It has an upper level with a[n] entry area and hall, a bedroom, a large closet, a bathroom, a guest closet and a guest powder room. At approximately 5000 square feet it is considerably larger than the surrounding homes.
. . . .
15. The view lost by the Baumans is caused by the top 10 to 14 feet of the Turpen house. The westerly view from the Bauman house is directly across the Turpen roof. In that direction from the main outside deck, the water of Puget Sound and the foothills of the Olympic Mountain Range are substantially blocked by the Turpens' roof. To the north of the Turpen house the view remains unobstructed.
The Turpens argue the trial court failed to find that they violated the one-story covenant, a material finding of fact, the omission of which should be construed in their favor on appeal.[24] The Baumans contend findings 14 and 15 are the functional equivalent of a finding that the Turpens violated the one-story covenant.
¶ 24 Whether the Turpens violated the one-story covenant is a conclusion of law, not a finding of fact. The central question before the trial court was the purpose of the covenant, which it concluded was to preserve neighboring views and restrict the scale of neighboring structures. When we couple findings 14 and 15 with this conclusion, the Turpens clearly violated the covenant by building a home that blocked the Baumans' view. It is the only logical conclusion to derive from these findings and the court's abatement order. Because it is a conclusion of law, the rule concerning construction of omitted findings does not apply here.
Propriety of Injunctive Relief
¶ 25 Enforcement of residential restrictive covenants is favored in Washington.[25]*1058 Generally, servitudes may be enforced by any appropriate remedy or combination of remedies.[26] Injunctive relief is one of these remedies.[27] When granting injunctive relief, the trial court considers: (a) the character of the interest to be protected, (b) the adequacy of injunctive relief when compared with other remedies, (c) the plaintiff's delay in bringing suit, (d) the plaintiff's clean hands, (e) the parties' relative hardship caused by denying or granting injunctive relief, (f) the interest of the public and other third parties, and (g) the order's enforceability.[28]
¶ 26 A trial court's decision to grant an injunction and the terms of that injunction are reviewed for an abuse of discretion.[29] A trial court abuses its discretion if its ruling is manifestly unreasonable or it exercises discretion on untenable grounds or for untenable reasons.[30] A decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard, or if the facts do not meet the requirements of the correct standard.[31] When a trial court orders injunctive relief, there is no abuse of discretion unless no reasonable judge would take the position adopted by the trial court.[32]
¶ 27 The Turpens argue the trial court erred by ordering injunctive relief on three grounds: (1) it is barred by laches, equitable estoppel, and acquiescence because the Baumans delayed bringing this suit against them; (2) monetary damages are adequate; and (3) the trial court failed to balance the relative hardships of the parties. They also assert that the trial court made an error of law by applying the Restatement of Contracts § 360 (1932), arguing that this section does not apply to violations of restrictive covenants. These arguments are not persuasive.
¶ 28 The Turpens knew about the deed restriction when they purchased the lot and were equally aware that views were important to their neighbors. The doctrines of laches, equitable estoppel, and acquiescence do not apply here because the Turpens have known since 2000, when the parties' negotiations about the one-story covenant began, that the Baumans would not consider code compliance sufficient if the structure violated the deed restrictions. The Baumans filed their lawsuit immediately after they learned DCLU had issued the building permit. There was no delay, reliance or acquiescence here.
¶ 29 Despite the Turpens' argument that the Baumans' loss is ascertainable and adequately compensated by monetary damages, the Baumans' home and view are unique commodities that cannot be replaced with money. They are entitled to ask the court to restore what they had before the Turpens violated the covenant.[33]
¶ 30 Restatement of Contracts § 360, comment a at 643 (1932) provides:
The remedy in money damages for breach of a contract for the transfer of a specific tract of land is regarded as inadequate without regard to quantity, quality, or location. A specific tract is unique and impossible of duplication by the use of any amount of money. . . .
*1059 In Foster we applied the Restatement of Contracts § 360 (1932) to remedies for restrictive covenant violations.[34] It applies equally here. We will uphold a trial court's order granting injunctive relief when substantial evidence supports the finding that the violation impairs a property owner's view and full enjoyment of the property.[35] The trial court did not abuse its discretion or make an error of law by ordering the abatement to restore the Baumans' view.
Innocent Defendants
¶ 31 In its written findings of fact and conclusions of law, the court found that:
28. On April 15, 2004, the current lawsuit was filed seeking the court's interpretation of the deed restriction and an injunction requiring abatement. At that time, only some initial clearing had occurred on the site although one of the defendants' contractors had purchased approximately $11,000 in materials.
. . . .
30. On April 19, 2004, four days after the lawsuit was filed, the Turpens had a surveyor reset and confirm the property boundaries and foundation location.
31. [Sometime] after May 19, 2004, the Turpens poured foundations and commenced construction of the house, which has been framed, sided and roofed, but not finished.
Based on these findings, it concluded that:
8. In framing a remedy for breach of a real estate covenant, balancing the equities is reserved for the defendant who proceeds without knowledge or warning that his structure encroaches upon another's property rights. Bach v. Sarich, 74 Wash.2d 575, 582, 445 P.2d 648 (1968).
9. The Turpens are not "innocent defendants" as that term is used in fashioning a remedy for a breach of a real estate covenant. However, the Turpens did make good faith and continuing efforts to resolve their neighbor[']s concerns and proceeded with construction only after they were unable to satisfy all of the competing interests.
10. A defendant who commences and continues to build a project while a lawsuit is pending, which challenges the legality of such a project, proceeds at the risk of abatement.
¶ 32 The Turpens argue the trial court erred in concluding they were not innocent defendants. They concede a defendant is not innocent when he proceeds in the face of a clear covenant prohibiting the structure that is built. But they contend continuing to construct in the face of a lawsuit based on an ambiguous covenant is not enough to prohibit the court from balancing benefits and burdens. They assert that the trial court erroneously concluded that they were not innocent because (1) they stopped construction when the trial court issued its July 22 order, (2) the restrictive covenant on their deed did not expressly require them to build a house that preserved neighboring views, and (3) the trial court found that they negotiated in good faith. Relying primarily on Holmes Harbor Water Co. v. Page[36] and Lenhoff v. Birch Bay Real Estate, Inc.,[37] the Turpens argue the trial court should have balanced the relative hardships of the parties before ordering any injunctive relief.
¶ 33 In Holmes and Lenhoff, we held that a trial court should balance the hardships and consider whether an injunction's effect will be disproportionate to the benefit secured by the plaintiff. But these cases do not support the Turpens' argument. In Holmes Harbor, we upheld the trial court's denial of injunctive relief in part because the defendant attempted to comply with the height restriction but was confused by its application.[38] In Lenhoff, we reversed the trial court's order granting injunctive relief, even though the defendant knowingly violated a restrictive covenant, because injunctive relief was not required to protect the plaintiffs' *1060 interests and the covenant provided for damages as a remedy.[39] These cases did not modify the Supreme Court's holding in Bach v. Sarich, which reserved the doctrine of balancing the equities or relative hardships for innocent defendants who proceed without knowledge or warning that their activity encroaches upon another's rights.[40]
¶ 34 The Turpens began construction knowing that their interpretation of the covenant was in dispute. Even though the trial court concluded that the Turpens made good faith and continuing efforts to resolve their neighbors concerns, the court correctly concluded that they were not innocent defendants because they continued to build in the face of an ongoing lawsuit. We cannot distinguish these actions from those of the defendants in Bach, who were denied the benefit of balancing the hardships because they acted in knowing violation of real estate covenants and assumed the risk that the plaintiff would be awarded injunctive relief. Substantial evidence supports the trial court's findings that the Turpens knew their neighbors disputed their interpretation of the covenant but continued to work even though the Baumans had filed suit. These findings support the conclusion that they were not innocent defendants. The trial court correctly declined to balance the hardships as required by the holding in Bach v. Sarich.
October 19, 2005, Order Amending Order
¶ 35 In their motion for reconsideration, the Turpens asked the court for permission to use trusses that ranged in height from 30 inches on the ends to 36¼ inches in the center on the ground that compliance with the October 3 order was impossible. After receiving notice of the Turpens' motion, the Baumans wrote a letter to the trial court explaining that under King County Local Rule (KCLR) 7(b)(5)(B) they would not file a response unless the court requested one. On October 19, 2005, the court granted the Turpens' motion without requesting the Baumans' response. The Baumans challenge this Order Amending Order on the ground that the trial court failed to comply with KCLR 7(b)(5)(B). Their answer would have demonstrated that the Turpens could comply with the original order.
¶ 36 Because the Turpens were not innocent defendants, they were not entitled to ask the court to balance the benefits and hardships on reconsideration.[41] Had the trial court requested a response from the Baumans under KCLR 7(b)(5)(B) before granting the motion for reconsideration, it would have learned that the Turpens' claim that compliance was impossible was incorrect. We therefore reverse the October 19, 2005 order.[42]
CONCLUSION
¶ 37 We affirm the trial court's orders issued on July 22 and October 3, 2005. We reverse the October 19, 2005 Order Amending Order and reinstate the trial court's original order granting the Baumans' request for injunctive relief.
ELLINGTON and COX, JJ., concur.
NOTES
[1] The parties stipulated at trial that the provisions of the 1997 UBC and the 1997 Seattle Building Code (SBC) that define a one-story house are identical.
[2] King County Cause No. 89-2-11423-2. At the preliminary injunction hearing in Boyd v. Michaels, the trial court stated:
Taking a look at the language of the restriction, it says "One-story building (at least five rooms), with garage attached, built to conform with other homes in the district." End of covenant. It doesn't say built to please the neighbors. It doesn't say built to make everybody happy. It doesn't say built to preserve perfectly the views of the neighbors. . . . "
[3] By the time construction stopped, the Turpens had completed the framing, siding and roof of their home.
[4] Riss v. Angel, 131 Wash.2d 612, 621, 934 P.2d 669 (1997) (rejecting the argument that free use of land is the paramount consideration in construing restrictive covenants).
[5] Day v. Santorsola, 118 Wash.App. 746, 756, 76 P.3d 1190 (2003) (citing Mariners Cove Beach Club, Inc. v. Kairez, 93 Wash.App. 886, 890, 970 P.2d 825 (1999)).
[6] King County Cause No. 89-2-11423-2. Ex 10 at 3.
[7] See Tunstall v. Bergeson, 141 Wash.2d 201, 224, 5 P.3d 691 (2000), cert. denied, 532 U.S. 920, 121 S.Ct. 1356, 149 L.Ed.2d 286 (2001).
[8] Day, 118 Wash.App. at 755, 76 P.3d 1190 (citing State ex rel. Coughlin v. Jenkins, 102 Wash. App. 60, 63, 7 P.3d 818 (2000)), review denied, 151 Wash.2d 1018, 91 P.3d 94 (2004).
[9] State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996).
[10] 118 Wash.App. 746, 756, 76 P.3d 1190 (2003), review denied, 151 Wash.2d 1018, 91 P.3d 94 (2004).
[11] 65 Wash.2d 619, 621-22, 399 P.2d 68 (1965).
[12] Burton, 65 Wash.2d at 621-22, 399 P.2d 68.
[13] Lenhoff v. Birch Bay Real Estate, Inc., 22 Wash.App. 70, 72, 587 P.2d 1087 (1978).
[14] Day, 118 Wash.App. at 756, 76 P.3d 1190 (citing Mariners Cove Beach Club, 93 Wash.App. at 890, 970 P.2d 825); Foster v. Nehls, 15 Wash. App. 749, 750-51, 551 P.2d 768 (1976), review denied, 88 Wash.2d 1001 (1977).
[15] 115 Wash.2d 657, 663, 801 P.2d 222 (1990).
[16] Hollis v. Garwall, Inc., 137 Wash.2d 683, 695-96, 974 P.2d 836 (1999) (citing Riss v. Angel, 131 Wash.2d 612, 623, 934 P.2d 669 (1997)).
[17] Id. at 693; 974 P.2d 836.
[18] 15 Wash.App. 749, 551 P.2d 768 (1976), review denied, 88 Wash.2d 1001 (1977).
[19] Foster, 15 Wash.App. at 751, 551 P.2d 768.
[20] Day, 118 Wash.App. at 749-50, 76 P.3d 1190.
[21] Id. at 757, 76 P.3d 1190.
[22] See, e.g., State v. Stannard, 109 Wash.2d 29, 36, 742 P.2d 1244 (1987); Eurick v. Pemco Ins. Co., 108 Wash.2d 338, 341, 738 P.2d 251 (1987).
[23] Foster, 15 Wash.App. at 752, 551 P.2d 768.
[24] See Pacesetter Real Estate v. Fasules, Inc., 53 Wash.App. 463, 475, 767 P.2d 961 (1989) ("If no finding is entered as to a material issue, it is deemed to have been found against the party having the burden of proof.") (citing Omni Group, Inc. v. Seattle-First Nat'l Bank, 32 Wash.App. 22, 28, 645 P.2d 727, review denied, 97 Wash.2d 1036 (1982)).
[25] Riss, 131 Wash.2d at 622-24, 934 P.2d 669; Metzner v. Wojdyla, 125 Wash.2d 445, 450, 886 P.2d 154 (1994).
[26] Restatement (Third) of Property (Servitudes) § 8.3 (2000).
[27] Hollis, 137 Wash.2d at 699, 974 P.2d 836; Foster, 15 Wash.App. at 752-53, 551 P.2d 768.
[28] Lenhoff, 22 Wash.App. at 74-75, 587 P.2d 1087 (citing Holmes Harbor Water Co. v. Page, 8 Wash.App. 600, 603, 508 P.2d 628 (1973)).
[29] Wash. Fed'n of State Employees v. State, 99 Wash.2d 878, 887, 665 P.2d 1337 (1983).
[30] State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003).
[31] In re Marriage of Horner, 151 Wash.2d 884, 894, 93 P.3d 124 (2004).
[32] Lenhoff, 22 Wash.App. at 74-75, 587 P.2d 1087 (citing Morgan v. Burks, 17 Wash.App. 193, 198, 563 P.2d 1260 (1977)); see also Jankelson v. Cisel, 3 Wash.App. 139, 473 P.2d 202 (1970), review denied, 78 Wash.2d 996 (1971).
[33] See Foster, 15 Wash.App. at 752-53, 551 P.2d 768 (land is generally considered a unique commodity which cannot be adequately replaced by money, and equity should intervene to restore land to the full enjoyment of the rightful owner).
[34] Id. (citing Restatement of Contracts § 360 (1932)).
[35] Id. (citing Restatement of Contracts § 360 (1932)).
[36] 8 Wash.App. 600, 508 P.2d 628 (1973).
[37] 22 Wash.App. 70, 587 P.2d 1087 (1978).
[38] Holmes, 8 Wash.App. at 605, 508 P.2d 628.
[39] Lenhoff, 22 Wash.App. at 76, 587 P.2d 1087.
[40] 74 Wash.2d 575, 582, 445 P.2d 648 (1968) ("The benefit of the doctrine of balancing the equities, or relative hardship, is reserved for the innocent defendant who proceeds without knowledge or warning that his structure encroaches upon another's property or property rights.") (citing Dunsmuir v. Silva, 154 Cal.App.2d 825, 317 P.2d 653 (1957); Winthers v. Bertrand, 239 Or. 97, 396 P.2d 570 (1964)).
[41] See id. at 582, 445 P.2d 648.
[42] KCLR 7(b)(5)(B) provides:
No response to a motion for reconsideration shall be filed unless requested by the Court. No motion for reconsideration will be granted without such a request. If a response is called for, a reply may be filed within two days of service of the response. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750553/ | 650 So. 2d 662 (1995)
Margaret A. TAYLOR, Appellant,
v.
Larry D. TAYLOR, Appellee.
No. 94-247.
District Court of Appeal of Florida, First District.
February 9, 1995.
Rehearing Denied March 7, 1995.
*663 Tann H. Hunt, Tallahassee, for appellant.
Cheryl L. Gentry, Tallahassee, for appellee.
WOLF, Judge.
The former wife appeals a final order entered by the trial court pursuant to a petition by the former wife to enforce and modify child support and the parenting arrangement. We affirm as to two of the points raised by the former wife: (1) Whether the trial court erred in refusing to modify the final judgment which was entered pursuant to a mediated agreement of the parties, and (2) whether the trial court erred in changing the primary residence of one of the minor children. We find no error in the trial court's determination as to custody and affirm without further discussion.
The issue concerning modification of the settlement agreement in reality involves two separate challenges. Appellant first asserts that it was error to allow testimony concerning discussions which occurred during the mediation process. We find that it was proper for the trial court to allow the former husband to testify about the mediation proceeding where the former wife sought relief from the plain terms of the settlement agreement based on her allegation that the illness of the minor daughter was unanticipated at the time the settlement agreement was executed. A party seeking relief from a written settlement agreement on the basis of his or her intent and thoughts at the time the agreement was entered into may not assert that matters discussed during the negotiations of that agreement are privileged. McKinlay v. McKinlay, 648 So. 2d 806 (Fla. 1st DCA 1995). The former wife further asserts that the trial court erred in failing to modify the terms of the settlement agreement negotiated by the parties. We find no error. Tubbs v. Tubbs, 648 So. 2d 817 (Fla. 4th DCA 1995).
As to the final two issues, we must reverse. The trial court awarded the former wife less than one-fourth of her attorney's fees and costs. Because of the vast difference in the resources of these parties, this was error. See Dinsmore v. Dinsmore, 623 So. 2d 638 (Fla. 1st DCA 1993); Kuczwanski v. Kuczwanski, 602 So. 2d 623 (Fla. 4th DCA 1992). We reverse the award of attorney's fees and remand to the trial court for further proceedings as to this issue.
Appellee also concedes that the trial court erred in requiring the wife to pay a portion of the orthodontia expenses. Upon remand, the trial court shall correct the order to reflect that the father is responsible for the son's orthodontist expenses as agreed by the parties.
ERVIN and MINER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261863/ | 861 F. Supp. 47 (1994)
Terry J. McKANE, Plaintiff,
v.
CITY OF LANSING, et al., Defendants.
CITY OF LANSING, et al., Counter-Plaintiffs,
v.
Terry J. McKANE, Counter-Defendant.
No. 5:94-CV-48.
United States District Court, W.D. Michigan, Southern Division.
August 15, 1994.
Thomas A. Baird, White, Beekman, Przybylowicz, Schneider & Baird, P.C., Okemos, MI, for McKane.
James D. Smiertka, Lansing City Attorney's Office, Dept. of Law, Lansing, MI, for defendants and counter-claimants.
OPINION
QUIST, District Judge.
This is an action by Mr. Terry McKane, the former Mayor of the City of Lansing, against the City of Lansing, its Retirement Board and seven members who presently sit on that Board (collectively, the City). Mr. McKane alleges that his early retirement benefits under the City's early retirement plan (the Plan) were wrongfully terminated. The City maintains that Mr. McKane is not entitled to the early retirement benefits because he held the elected position of Mayor, because the Plan does not extend to elected officials, and because the Plan was enacted in a manner inconsistent with the City Charter.
Attorney Thomas Baird represents Mr. McKane. Mr. Baird has previously defended the City of Lansing and its then Mayor McKane in an action filed by another former mayor, Gerald Graves. The defendants filed a motion to disqualify plaintiff's attorney. *48 They claim that Mr. Baird is precluded from representing Mr. McKane pursuant to MRPC 1.9(a) and that Mr. Baird's law firm must recuse itself pursuant to MRPC 1.10(a). The parties fully briefed this issue and presented oral argument.
Plaintiff, Mr. McKane, has filed a motion to disqualify the office of the City Attorney of Lansing which represents all of the defendants. He claims that the City Attorney must be disqualified from representing defendants with conflicting interests or the City Attorney's office must discuss the potential conflict with the defendants and obtain their consent to continued representation.
Motion to Disqualify Plaintiff's Counsel
Michigan Rule of Professional Conduct 1.9(a) states:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.
The Michigan Rules of Professional Conduct provide the applicable standard of professional conduct for members of the bar of this Court pursuant to Western District Local Rule 17.[1]
The Comments to Rule 1.9 state:
The scope of a `matter' for purposes of this rule may depend on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client.... The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.
In Barkley v. City of Detroit, 204 Mich. App. 194, 514 N.W.2d 242 (1994), the court stated:
It is also clear that an attorney may only undertake to represent a new client against a former client where all business ties with the former client have been severed, where the subject matter of the current representation is not substantially related to a matter in which the attorney represented the former client, and, further, where there is no confidential information received from the former client that is in any way relevant to representation of the current client.
204 Mich.App. at 203-04, 514 N.W.2d at 246 (citing General Electric Co. v. Valeron Corp., 608 F.2d 265, 267 (6th Cir.1979).
In General Elec. Co. v. Valeron Corp., Mr. Cantor entered his appearance as trial counsel for Valeron. General Electric moved for an order disqualifying Mr. Cantor because he had been retained as a patent lawyer by General Electric between 1965 and 1967 to prepare drafts of several patent applications. 608 F.2d at 266. General Electric contended that Cantor's work in preparing these applications was substantially related to the subject matter of the present litigation involving denial of infringement and invalidity based on prior art and invention. Id. The trial court held a lengthy evidentiary hearing and determined that Mr. Cantor and his law firm had to be disqualified because the subject matter of the litigation was substantially related to work Mr. Cantor had done for his former client. Id. On appeal Valeron argued that it was necessary for General Electric to show a substantial relation between Cantor's work for it and the actual issues of *49 the present lawsuit. The Sixth Circuit rejected that argument and stated that this narrower formulation was not supported by case law. Id. at 267.
[A] former client seeking to disqualify an attorney who appears on behalf of his adversary, need only to show that the matters embraced within the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented him.
Id. (emphasis in original) (citation omitted).
Mr. Baird's representation of Mr. McKane is adverse to the interests of his former client, the City of Lansing. Furthermore, the City of Lansing has not consented to Mr. Baird's representation. Thus, the issue is whether the subject matter of the current representation is the same or substantially related to Mr. Baird's prior representation of the City of Lansing. The City argues that Mr. Baird's representation of Mr. McKane and the City in Graves v. Lansing, 149 Mich. App. 359, 385 N.W.2d 785 (1986) is substantially related to the matters involved in this case.
After Mr. Graves retired as mayor, he requested certain fringe benefits. His request was denied pursuant to a directive issued by then Mayor McKane. Mr. Graves filed a suit against the City, Mr. McKane, and the City Controller alleging that the City wrongfully deprived him of benefits. The court, in reaching its decision, examined the City Personnel Rules and the City Charter, and it discussed the distinction between public officials and public employees.
The City contends that the instant action, in which Mr. McKane is seeking certain retirement benefits which were denied by present Mayor David Hollister, is similar to the Graves matter because the trier of fact will be asked to apply the Personnel Rules and the City Charter and will have to address the distinction between public officials and other employees in order to resolve the conflict. Therefore, according to the City, Graves and the present action involve substantially related matters and Mr. Baird cannot continue in his representation of Mr. McKane.
Mr. McKane argues in response that this matter is not the same or substantially related to Mr. Baird's prior representation of the City of Lansing. He explains that in the Graves case, Mr. Graves alleged he was entitled to compensation for unused sick and vacation days accumulated during his tenure as Mayor and previously as a member of the City Council. Payment for unused sick and vacation days was a benefit available to all regular, full-time employees of the City. Thus, the case turned upon whether Mr. Graves was a public employee or a public official. The instant case, Mr. McKane submits, is quite different. Here the issue is whether Mr. McKane is entitled to early retirement benefits under an early retirement incentive plan adopted by the City in 1992. The Plan had not even been enacted at the time of the prior representation. Mr. McKane insists that he is not disputing his employment status. At issue, instead, is the intent of the City Council regarding inclusion of elected officials in the retirement plan.
At oral argument, Mr. Blaine represented to the Court that his representation of the City in Graves did not afford him knowledge of any confidential information. Counsel for the defendants responded that they were not claiming that Mr. Blaine possessed any confidential information from the prior representation that he could bring to bear on the instant case.
In light of the differences between the Graves litigation and the instant case and the fact that there is no issue of confidential information received in the previous litigation relevant to the instant litigation, defendants' motion for disqualification of plaintiff's counsel will be denied.
Motion to Disqualify Defense Counsel
Plaintiff has filed a motion requesting that the office of the City Attorney be disqualified from representing defendants with conflicting interests. In the alternative, plaintiff requested that the City Attorney's office show that it has disclosed its potential conflict of interest and has obtained the consent of all defendants. At oral argument, counsel for the defendants provided plaintiff with a *50 letter of consent. Plaintiff was satisfied and this motion will be denied as moot.
CONCLUSION
For the reasons set forth above, defendant's motion for disqualification of counsel for plaintiff (docket no. 13) is DENIED. Plaintiff's motion for disqualification of the Office of the City Attorney as counsel for defendants (docket no. 16) is DENIED AS MOOT. An Order consistent with this Opinion shall be entered.
NOTES
[1] Local Rule 17 states:
The standards of professional conduct of members of the bar of this court shall include the applicable Michigan Rules of Professional Conduct, except those rules a majority of the judges of this court exclude by administrative order. For a willful violation of any of these standards, an attorney may be subjected to appropriate disciplinary action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323362/ | 183 Ga. App. 854 (1987)
360 S.E.2d 415
KRES
v.
WINN-DIXIE STORES, INC.
73690.
Court of Appeals of Georgia.
Decided July 13, 1987.
Rehearing Denied July 30, 1987.
Rikard L. Bridges, for appellant.
*858 William C. Sanders, for appellee.
CARLEY, Judge.
Appellant-plaintiff fell while shopping in appellee-defendant's retail grocery store. The object which caused appellant's fall was a flatbed *855 cart approximately 4-1/2 feet long, 2 feet wide, and sitting some 9-1/2 inches from the floor. The two long sides of the cart were open, but both ends were enclosed by walls approximately 5 feet high. The cart was used by appellee to transfer products from storage to display areas and was painted green. On the day that appellant fell, the cart was empty and sitting immediately in front of a case wherein eggs were displayed. As appellant reached for a carton of eggs from the display case, she somehow stumbled and fell. According to appellant, she did not see the cart and tripped over it. However, there was also evidence that she stepped onto the cart and fell from it. Appellant's suit for damages against appellee was tried before a jury. Appellant appeals from the judgment entered by the trial court on the jury's verdict in favor of appellee.
1. The jury was authorized to find that the cart was a "usual" obstruction in the aisles of appellee's store and that a customer would, therefore, have a duty to maintain a lookout ahead for its presence in his path. See King Hardware Co. v. Teplis, 91 Ga. App. 13, 15 (84 SE2d 686) (1954); Kitchens v. Davis, 96 Ga. App. 30, 34 (99 SE2d 266) (1957). For this reason, appellant requested a charge on the distraction theory and enumerates as error the trial court's refusal to give her request. The distraction theory provides "`that a plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril.... The doctrine is further broadened to cover situations where the plaintiff's attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.'" Stenhouse v. Winn-Dixie Stores, 147 Ga. App. 473, 475 (249 SE2d 276) (1978). Thus, where the plaintiff's attention is distracted away from an obstruction that, in the exercise of ordinary care for his own safety, he otherwise could and would have seen and avoided, he can still recover. See generally Stenhouse v. Winn-Dixie Stores, supra; Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427 (1) (263 SE2d 171) (1979). The only distraction alleged in this case is appellee's display of eggs. The egg display itself could not, however, have distracted appellant's attention away from the presence of appellee's cart in her path as she approached it. The cart was sitting immediately in front of the egg display so that one approaching that display intending to pick up a carton, as was appellant, would necessarily have seen the cart had he been looking ahead and in that direction. If appellant's attention had been directed toward the egg display, "her attention was directed to the very direction in which she was walking, and she was not relieved of the duty of avoiding a large, familiar, and conspicuous object in her path. [Cits.] It is generally incumbent upon one to use his eyesight for *856 the discovering of any obstruction that may have been placed in the way. [Cits.]" (Emphasis supplied.) Slaughter v. Slaughter, 122 Ga. App. 374, 379 (177 SE2d 119) (1970).
From the evidence, it would appear that appellant did not maintain a lookout ahead prior to her arrival at the egg display. When she did reach the display, she merely stepped forward and reached for a carton without looking where she was stepping. This evidence raises the issue of whether, in the exercise of ordinary care for her own safety, appellant need not have anticipated the possible presence of an obstruction such as appellee's cart and therefore need not have maintained a lookout ahead as she approached and then stepped up to the egg display. "[O]ne is under a duty to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be; not performing this duty may amount to a failure to exercise ordinary care for one's safety as would bar a recovery for resulting injuries. [Cits.]" (Emphasis supplied.) Stenhouse v. Winn-Dixie Stores, supra at 474-475. Assuming that such a duty did not exist, appellant was authorized to recover. Assuming, however, that such a duty did exist, the evidence does not raise the issue of appellant's possible distraction from its performance. Accordingly, the trial court did not err in refusing to give a charge on the distraction theory. See generally Georgia Farmers' Market v. Dabbs, 150 Ga. App. 15, 18 (7) (256 SE2d 613) (1979).
2. The trial court did not err in denying appellant's motion for a directed verdict as to appellee's affirmative defenses. There was sufficient evidence to warrant the submission of those defenses to the jury. Accordingly, instructing the jury with regard to the legal principles applicable to those defenses was likewise proper.
3. At trial, appellant objected "to the Court's failure to charge [her] Request to Charge [Number 15]...." On appeal, appellant enumerates as error the trial court's failure to instruct the jury on the legal principle contained in her written request to charge Number 15. Appellee urges that the objection raised by appellant in the trial court is not sufficient to preserve the right to enumerate error as to the failure to give the requested charge. There is authority for appellee's contention. See Green v. Dillard, 176 Ga. App. 574, 576 (2) (337 SE2d 55) (1985). However, "[a]lthough past decisions may suggest that objections to the court's refusal to charge as requested are controlled by the same rule governing objections to the failure to charge [without request] or objections to the charges as given ([Cits.]), the Supreme Court has held otherwise. See Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8 (2) (195 SE2d 417) [(1973)]. Thus, `"[w]here the trial court refused to instruct the jury in accordance with a timely submitted written request, in order to secure review of that action on appeal it is unnecessary for the party to state grounds of objection to *857 such refusal at the conclusion of the charge."' [Cit.] It is only necessary that the refusal to charge be objected to at some point [Cit.] Accordingly, appellee's argument that appellant's objection was insufficient is not well taken, and, under the authority of Continental Cas. Co., supra, we deem it proper to review appellant's enumeration of error." Roberson v. Hart, 148 Ga. App. 343, 344 (1) (251 SE2d 173) (1978). It follows that, insofar as it requires a statement of the grounds of objection to a trial court's failure to give a timely written request, Green v. Dillard, supra, is inconsistent with controlling Supreme Court authority and must be overruled.
Appellant's request to charge was: "[A] shopper's mere knowledge of a condition is not the same as the knowledge or comprehension of the danger or risk involved, so that the mere knowledge of a shopper of the existence of that condition will not necessarily prevent such shopper from recovering for injuries sustained as a result of such condition." The request states an accurate legal principle. See generally Robinson v. Western Intl. Hotels, 170 Ga. App. 812, 813-815 (1) (318 SE2d 235) (1984). However, assuming without deciding that appellant's request to charge states that legal principle in a sufficiently non-argumentative fashion, the principle would still have to be applicable under the evidence in this case. The legal principle contained in the requested charge would presuppose that appellant had knowledge of the presence of appellee's cart and that she lacked knowledge or comprehension of the danger or risk evidenced thereby. The possibility of stumbling over a cart that one knows is directly in his path or the possibility of falling from a wheeled cart that one voluntarily steps upon is an apparent rather than a hidden danger or risk. Compare Robinson v. Western Intl. Hotels Co., supra, wherein the possibility that one exiting the steps from a particular booth would have a tendency to surge forward was not necessarily apparent to one whose only previous experience with the steps was in entering the booth. Under the evidence, if appellant knew of the presence of appellee's cart in her path and simply walked into it and tripped over it or stepped on it and fell from it, she could not recover. It follows that appellant's request to charge was not adjusted to the evidence and the trial court did not err in refusing to give it.
Judgment affirmed. Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Sognier, Pope, Benham, and Beasley, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261805/ | 861 F.Supp. 1027 (1994)
Jerome T. SCAIFE, Plaintiff,
v.
G. WILSON, et al., Defendants.
No. 92-3451-DES.
United States District Court, D. Kansas.
August 31, 1994.
*1028 Jerome T. Scaife, pro se.
John J. Knoll, Office of the Atty. Gen., Topeka, KS, for defendants.
MEMORANDUM AND ORDER
SAFFELS, District Judge.
Plaintiff proceeds pro se and in forma pauperis, 28 U.S.C. § 1915, on a civil rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff filed this action while confined in El Dorado Correctional Facility ("EDCF") in El Dorado, Kansas. Plaintiff seeks damages on his claim that he was denied due process in a prison disciplinary proceeding at EDCF.
Before the court is defendants' motion for summary judgment. Plaintiff has filed no response to defendants' motion, thus defendants' motion will be considered and decided as an uncontested motion. D.Kan.Rule 206(g). All facts as alleged by defendants are deemed admitted for purposes of this motion. D.Kan.Rule 206(c). The court has reviewed the record and has determined that a factual basis exists to support defendants' recitation of the facts in this case. For the reasons set forth below, the court finds defendants are entitled to summary judgment on all of plaintiff's claims.
Plaintiff was placed in administrative detention on July 20, 1993, for failing to comply with an order that he provide a urine sample for drug testing. The administrative detention report issued the same day erroneously stated that plaintiff was placed in administrative detention for testing positive for drugs. The disciplinary report, also issued the same day, accurately stated that plaintiff was charged with disobeying an order, K.A.R. XX-XX-XXX, Pursuant to EDCF policy at the time, inmates asked to provide urine samples were first searched thoroughly, including a visual search of the groin area. Any inmate failing to provide a urine sample was placed in administrative detention to allow continuous observation of the inmate. The inmate was given 16 ounces of water to drink, and advised that failure to provide a urine sample within two hours would result in disciplinary action for refusing to obey an order.
Inconsistency in the reports
The court first notes that plaintiff fails to demonstrate what if any injury resulted *1029 from the inconsistency between plaintiff's administrative segregation report and his disciplinary report. Second, plaintiff does not contest information in the record indicating the inconsistency in the reports resulted from a breakdown in communication between prison staff. Such negligence is not actionable under § 1983. Daniels v. Williams, 474 U.S. 327, 328-31, 106 S.Ct. 662, 663-65, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). See Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir.1990) (more than mere negligence required for constitutional deprivation in civil rights action).
Testing procedure
Plaintiff complains the testing procedure, with its strip search and continuous observation, is unnecessary and constitutes harassment. Plaintiff does not contest defendants' assertion that the random drug testing was conducted as a prison security measure. Again, the court finds no claim of constitutional deprivation. It is recognized that even body cavity searches may be conducted without probable cause or reasonable suspicion if conducted in prison as a security measure. Bell v. Wolfish, 441 U.S. 520, 546, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). Likewise, random urine testing in a prison drug surveillance program does not impermissibly impact upon a constitutionally protected interest. Nor does such random urine testing constitute cruel and unusual punishment.
Disciplinary hearing
Because plaintiff was charged with a Class I disciplinary offense, prison regulations provide that the reporting officer be present at the hearing to give testimony. In the present case, plaintiff does not contest that the reporting officer was no longer employed by Kansas Department of Corrections at the time of plaintiff's disciplinary hearing. Plaintiff was found guilty on the basis of the reporting officer's sworn statement and upon plaintiff's testimony. Under the circumstances, and where plaintiff alleges no prejudice from the officer not being present, the court finds plaintiff was not denied due process in the disciplinary proceeding.
Loss of good time
Plaintiff was sanctioned to 15 days of solitary confinement for refusing to provide a urine sample for drug testing. Plaintiff indicates that three months later he additionally lost 30 days of good time, implying this loss was an additional disciplinary sanction imposed without due process.
The record reflects that inmates are awarded up to 120 days of good time credit on a quarterly basis, at the discretion of the Principal Administrator and on the recommendation of the Unit Team Manager. K.A.R. 44-6-120. Prison regulations provide that inmates convicted of a class I offense during the quarter can lose up to 50% of the good time credits available for that quarter. It is clear that the loss of good time credit petitioner points to in this case resulted from application of these prison regulations. Plaintiff lost no good time credit already credited. Instead, plaintiff's disciplinary conviction had an adverse impact on the discretionary award of future good time credit. The court finds no violation of plaintiff's constitutional rights imbedded in plaintiff's claim.
Conclusion
Finding no material fact in controversy, and given the findings entered hereinabove, the court concludes defendants are entitled to judgment as a matter of law on all claims raised by plaintiff.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment is granted, and that all relief requested by plaintiff is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261811/ | 133 Cal.Rptr.2d 718 (2003)
107 Cal.App.4th 1383
ASSOCIATION OF IRRITATED RESIDENTS, et al., Plaintiffs and Appellants,
v.
COUNTY OF MADERA, et al., Defendants and Respondents;
Diamond H Dairy, et al., Real Parties in Interest.
No. F041012.
Court of Appeal, Fifth District.
April 1, 2003.
Review Denied July 23, 2003.
*722 Brent J. Newell, Luke W. Cole, San Francisco, and Caroline Farrell for Plaintiffs and Appellants.
Herum Crabtree Brown, Steven A. Herum and Thomas H. Terpstra, Stockton, for Defendants, Respondents and Real Parties in Interest.
OPINION
BUCKLEY, J.
INTRODUCTION
Appellants Association of Irritated Residents (AIR) and Center on Race, Poverty and the Environment (CRPE) challenge the denial of their petition for writ of mandate (the petition) which sought to overturn the certification of a final environmental impact report (FEIR) and issuance of a conditional use permit (CUP) authorizing construction and operation of the Diamond H Dairy (the dairy).
Appellants contend that respondents County of Madera and Board of Supervisors for the County of Madera (the County) violated the California Environmental Quality Act (CEQA).[1] Specifically, they argue that the FEIR did not sufficiently study whether the dairy would adversely impact the San Joaquin kit fox and that real parties in interest (Hooker) should have been required to obtain an incidental take permit from the United States Fish and Wildlife Service (the Service) as a mitigation measure. They also contend that the FEIR did not adequately analyze the reduced-herd size alternative and that economic evidence concerning this alternative should not have been received at the hearing on the certification of the FEIR. Finally, they argue that the FEIR did not sufficiently consider the cumulative impacts on groundwater quality resulting from development of the dairy industry in the San Joaquin water basin. As will be explained below, none of these arguments is persuasive. The FEIR fulfilled its informational function; the County satisfied the obligations imposed by CEQA. Accordingly, we will affirm the denial of the petition for writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
Hooker applied for a CUP in July 1999 to construct the dairy on a 158-acre portion *723 of a site consisting of approximately 1,925 acres of rural agricultural land southeast of Chowchilla (the dairy site).[2] The dairy site is located in the unincorporated area of Madera County, south of Avenue 18-½ west of Road 10, north of the Berenda Slough and east of the San Joaquin flood bypass. The dairy site is zoned for agricultural uses; a dairy is permitted in this zoning category and is consistent with the general plan. A portion of the dairy site is within a Williamson Act contracted agricultural preserve. The regulations for Williamson Act contracts allow dairies. The dairy site is currently being farmed in cotton, alfalfa, wheat and corn. The dairy site includes a small vineyard, an orchard, two permanent homes and two manufactured homes. Surrounding land uses are also agricultural. Alfalfa, cotton and corn are grown to the north, south and west. Almonds are grown to the east and north.
The dairy will house a herd consisting of approximately 4,480 Holstein milk cows, 700 dry cows and 4,000 replacement heifers. The dairy will produce approximately 37,000 gallons of raw milk per day; processing will occur at an off-site creamery. The dairy will employ 20 people in three shifts. The owner/operator and two employees will live on-site. The dairy complex will consist of eight 700-foot long freestall barns, a dairy barn, a hospital barn, commodity barns, corrals, other concrete and steels structures and hay and silage storage areas. A minimum of 14 parking spaces, a loading zone and service roads will be constructed. The facility will also include separation ponds and lagoons for wasteproduct storage. The two manufactured homes will be removed and a new single family residence will be constructed. The dairy complex will occupy approximately 158 acres of the dairy site. The balance of the acreage will continue to be used for agricultural production; 635 acres of alfalfa and 1000 acres of corn silage/oat silage (double cropped) or other crops with equal or greater capacity for nitrogen uptake will be grown.
An initial study was conducted. It concluded that, as mitigated, the dairy would have a less than significant impact on the environment. A mitigated negative declaration was approved by the planning commission and the board of supervisors (the board). CRPE appealed and on November 14, 2000, the board ordered preparation of an environmental impact report (EIR).
The DEIR was issued in February 2001. It concluded that the dairy would cause significant unavoidable adverse environmental effects on groundwater quality, air quality and odors.
CRPE filed a comment letter on April 11, 2001, raising, inter alia, the same issues asserted on appeal.
Public hearing concerning certification of the FEIR[3] was held on June 19, 2001. Appellants' representative spoke at the hearing. The board voted to certify the FEIR and to approve the CUP 99-29.
Appellants filed the petition within the statutory period.
The dairy was constructed and began operating.
*724 Appellants motioned for issuance of a stay or preliminary injunction. The motion was denied.
The petition was heard and denied on May 17, 2002.
I. DISCUSSION
I. Exhaustion
We summarily reject the County's assertion that appellants did not exhaust their administrative remedies. All of the issues raised on appeal were presented by appellants to the County prior to issuance of the notice of determination. These issues were also among the many points that appellants litigated below. By these actions, appellants satisfied their obligation to exhaust administrative remedies and they preserved these issues for our review. (§ 21177, subds.(a), (b); Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 107, 99 Cal.Rptr.2d 378 (Cadiz).) Appellants cannot be faulted for narrowing the focus of the litigation on appeal.
II. Standard of Review
In reviewing challenges to the certification of an EIR or approval of a CUP, the court must determine whether the lead agency abused its discretion by failing to proceed in a manner required by law or by making a determination or decision that is not supported by substantial evidence. (§ 21168.5; Fairview Neighbors v. County of Ventura (1999) 70 Cal. App.4th 238, 241-242, 82 Cal.Rptr.2d 436 (Fairview).) "Provided the EIR complies with CEQA, the [b]oard may approve the project even if it would create significant and unmitigable impacts on the environment." (70 Cal.App.4th at p. 242, 82 Cal. Rptr.2d 436.) "The appellate court reviews the administrative record independently; the trial court's conclusions are not binding on it." (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1375-1376, 43 Cal.Rptr.2d 170 (Gentry).)
When assessing the legal sufficiency of an EIR, the reviewing court focuses on adequacy, completeness and a good faith effort at full disclosure. (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 954, 91 Cal.Rptr.2d 66 (Amador).) "The EIR must contain facts and analysis, not just the bare conclusions of the agency." (Santiago Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 831, 173 Cal. Rptr. 602.) "An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project." (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 405, 253 Cal.Rptr. 426, 764 P.2d 278 (Laurel Heights).) Analysis of environmental effects need not be exhaustive, but will be judged in light of what was reasonably feasible. When experts in a subject area dispute the conclusions reached by other experts whose studies were used in drafting the EIR, the EIR need only summarize the main points of disagreement and explain the agency's reasons for accepting one set of judgments instead of another. (CEQA Guidelines, § 15151; Remy et al., Guide to the California Environmental Quality Act (10th ed.1999) p. 353 (Guide to CEQA).)
A court's proper role in reviewing a challenged EIR is not to determine whether the EIR's ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document. (Laurel Heights, supra, 47 Cal.3d at p. 407, 253 Cal.Rptr. 426, 764 P.2d 278.) Substantial evidence is defined as "enough relevant information and reasonable inferences from this information *725 that a fair argument can be made to support a conclusion, even though other conclusions might also be reached." (CEQA Guidelines, § 15384, subd. (a); San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal. App.4th 713, 722, 32 Cal.Rptr.2d 704 (Raptor.))
As frequently occurs, many of the disputes in this case center on the question whether relevant information was omitted from the FEIR. Noncompliance with CEQA's information disclosure requirements is not per se reversible; prejudice must be shown. (§ 21005, subd. (b).) This court has previously explained, "[a] prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process." (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712, 270 Cal.Rptr. 650 (Farm Bureau); see also Raptor, supra, 27 Cal. App.4th at p. 722, 32 Cal.Rptr.2d 704.) Numerous authorities have followed and applied this prejudice standard. (See, e.g., Cadiz, supra, 83 Cal.App.4th at p. 95, 99 Cal.Rptr.2d 378; Fall River Wild Trout Foundation v. County of Shasta (1999) 70 Cal.App.4th 482, 492, 82 Cal. Rptr.2d 705; Amador, supra, 76 Cal. App.4th at p. 946, 91 Cal.Rptr.2d 66; Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.App.4th 712, 730, 12 Cal.Rptr.2d 785.)
Recently, in Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 32 Cal. Rptr.2d 19, 876 P.2d 505 (Sierra Club), our Supreme Court found the omission of information about four old-growth dependent species on the project site from a timber harvest plan (the functional equivalent of an EIR, see 7 Cal.4th at p. 1230, 32 Cal.Rptr.2d 19, 876 P.2d 505) frustrated the purpose of the public comment provisions of the Forest Practice Act and made meaningful identification and assessment of the potentially significant environmental impacts of the harvest plan impossible. It declared that the board had not "proceed[ed] as required by law" (id. at p. 1236, 32 Cal.Rptr.2d 19, 876 P.2d 505) and that "[i]n these circumstances prejudice is presumed." (Id. at p. 1237, 32 Cal.Rptr.2d 19, 876 P.2d 505.)
The County calls attention to two recent cases that appear to deviate from this established prejudice standard, Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 45 Cal.Rptr.2d 688 (Barthelemy), and National Parks & Conservation Assn. v. County of Riverside (1999) 71 Cal.App.4th 1341, 84 Cal.Rptr.2d 563 (National Parks), and urges us to follow their lead. To the extent that these cases reject the standard of review we applied in Farm Bureau and Raptor, by stating that claims that information has been omitted from an EIR essentially should be treated as inquiries whether there is "substantial evidence to support [the] decision to approve the project" (National Parks, supra, 71 Cal.App.4th at p. 1353, 84 Cal.Rptr.2d 563; see also Barthelemy, supra, 38 Cal.App.4th at pp. 1620-1621, 45 Cal.Rptr.2d 688), we find them unsound. These two decisions fail to acknowledge the important public informational purpose that EIR's serve. An EIR is an educational tool not just for the decisionmaker, but for the public as well. It is a document of accountability, "an `environmental "alarm bell" whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.'" (Laurel Heights, supra, 47 Cal.3d at p. 392, 253 Cal.Rptr. 426, 764 P.2d 278.) It is for this reason that CEQA's investigatory and disclosure requirements must be carefully *726 guarded. "If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees. [Citations.] The EIR process protects not only the environment but also informed self-government." (Laurel Heights, supra, 47 Cal.3d at p. 392, 253 Cal.Rptr. 426, 764 P.2d 278.) Moreover, these two decisions failed to take into account subdivision (a) of section 21005. This section provides that "noncompliance with the information disclosure provisions of this division which precludes relevant information from being presented to the public agency ... may constitute a prejudicial abuse of discretion ..., regardless of whether a different outcome would have resulted if the public agency had complied with those provisions." (Italics added.) (See also Amador, supra, 76 Cal. App.4th at p. 946, 91 Cal.Rptr.2d 66.) Thus, the existence of substantial evidence supporting the agency's ultimate decision on a disputed issue is not relevant when one is assessing a violation of the information disclosure provisions of CEQA. Accordingly, we continue to adhere to the standard of review set forth in Farm Bureau, supra, 221 Cal.App.3d 692, 270 Cal. Rptr. 650, and Raptor, supra, 27 Cal. App.4th 713, 32 Cal.Rptr.2d 704 and impliedly endorsed in Sierra Club, supra, 7 Cal.4th 1215, 32 Cal.Rptr.2d 19, 876 P.2d 505.
III. Biological Resources-Kit Fox
A. Facts
Before County prepared the initial study, it sent the California State Department of Fish and Game (Fish and Game) a copy of Hooker's application for a CUP and requested its review and comment. Fish and Game responded in writing on August 13, 1999. In relevant part, it stated that it, "is not aware of any occurrences of listed or sensitive species on the Project site, however specific surveys have not been conducted to determine presence or absence of wildlife resources on the site." Fish and Game then wrote that, "it may be necessary for a qualified biologist" to determine the location and extent of sensitive resources and habitats on the project site.
Kimberly E. Duncan and Kacy L. O'Malley are biologists employed by Quad Knopf. Quad Knopf prepared the environmental documentation for this project. On February 24, 2000, they conducted a reconnaissance level biological field survey (the field survey) on the dairy site by driving the existing roadways and by walking portions of the alfalfa field perimeters to identify the potential presence of special status plant and animal species or their sign. Prior to conducting the field survey, the Natural Diversity Data Base (NDDB) maintained by Fish and Game was queried to determine whether sensitive species have been previously reported on or near the dairy site. The NDDB indicated that five special-status animal species, four special-status plant species, and two natural vegetation communities have been reported in areas near the proposed project locations. The special status animals included the Swainson's hawk, the blunt-nosed leopard lizard, the giant garter snake and the San Joaquin kit fox. The special status plants included the heartscale, the brittlescale and the lesser saltscale. The natural vegetation communities are the valley sacaton grassland and the valley sink scrub.
After conducting the field survey, Duncan prepared a report dated March 10, 2000 detailing the findings (the biological report). Duncan wrote that she did not observe any special-status plant or animal species and that the dairy site does not support habitat for any special status species. *727 She specifically noted that no kit foxes or their sign were observed on the dairy site. However, alfalfa fields on the dairy site can provide foraging habitat for raptor or carnivore species such as Swainson's hawk and the kit fox, provided suitable prey species such as ground squirrels, rats and mice are present. She observed ground squirrel burrows on the perimeter of the property and along the canal banks. Duncan concluded that if improvement of the area in and along irrigation canals and the Chowchilla Canal is avoided and alfalfa fields remain to provide foraging areas, "no significant impacts to threatened or endangered species or their habitats are expected as a result of this project." Furthermore, implementation of the proposed dairy will not result in a significant impact to migratory corridors or nursery sites.
The biological resources section of the DEIR is based entirely on the biological report. It repeats the biological report virtually verbatim. The DEIR concluded that because alfalfa fields will remain on the dairy site and the closest distance between the proposed dairy facilities and the abandoned Chowchilla Canal is 200 feet, the impacts to threatened or endangered species and their habitats are less than significant with mitigation.
Fish and Game did not comment on the DEIR. However, CRPE and the Service each commented on this section of the DEIR. CRPE's comment stated that the DEIR's conclusion that biological resources would not be significantly impacted by the dairy lacks substantial evidence because the field study did not follow survey guidelines for sensitive species that were issued by Fish and Game to determine the presence of state listed species. It asserted that County was required to conduct a protocol level study that complied with the survey guidelines. CRPE attached a copy of the survey guidelines to its comment letter. The section of the survey guidelines discussing kit fox describes three different methods to detect the presence of kit fox; a field survey is not one of these methods. CRPE also attached a letter authored by George D. Noakes, regional manager of region 4, Fish and Game. The letter is dated May 8, 1990. It is addressed to an unnamed "Sensitive Species Surveyor." Therein, Noakes states that these standardized methodologies were developed to provide minimum acceptable standards for surveys designed to determine the presence of state listed species and that all project specific surveys conducted after June 15, 1990 should use these methodologies.
In its comment letter, the Service stated that the dairy site provides "foraging habitat and a travel corridor" for kit foxes. The dairy site has been identified in the Recovery Plan for Upland Species of the San Joaquin Valley (Recovery Plan) as an important linkage area for kit foxes migrating between populations. Therefore, the Service has concluded that construction of dairy facilities will result in "the take of at least 158 acres of kit fox habitat." The Service may issue an incidental take permit under the Endangered Species Act after the applicant completes a satisfactory conservation plan. The Service requested that the following mitigation measure be added to the FEIR: "`Through consultation with [the Service], the applicant will avoid and minimize project impacts to federally listed species and provide compensation for any loss of habitat associated with the construction of all [dairy improvements] that impede the movement of the kit fox.'"
The response to CRPE's comment acknowledged that the initial field work was completed for a mitigated negative declaration and was subsequently incorporated into the DEIR. It then stated that "during *728 the field survey, no sign of threatened or endangered species was observed, nor was habitat typically associated with these species present. That was the basis for concluding that protocol surveys were not indicated at that time." It continued, "[r]egardless whether protocol studies were conducted, the fact remains that no quality natural habitat is present on the site." However, "no one is refuting the possibility that San Joaquin kit fox could utilize the area for foraging or possibly a corridor to other areas." Yet, the dairy is unlikely to adversely impact or result in a kit fox "take" for three reasons. First, the NDDB indicates only one recorded observance of a pair of kit foxes approximately eight miles south of the dairy site in 1990 in a large tract of native land. Second, the dairy will remove only approximately 8.2 percent of the site acreage from cultivation and this percentage is further reduced when compared to the remaining alfalfa and other agricultural fields in the area surrounding the dairy site. Finally, the applicant will have the responsibility of complying with all applicable laws pertaining to the protection of threatened or endangered species including, but not limited to, the California Endangered Species Act and the federal Endangered Species Act.
In relevant part, the response to the Service's comment states that the Recovery Plan is not site-specific. "The issue is whether project activities, most of which constitute no change from existing agricultural conditions, would result in `take' of San Joaquin kit fox within the meaning of the Endangered Species Act. Modification of habitat alone does not constitute `take,' according to well-established legal precedent." Nonetheless, to ensure compliance with the Endangered Species Act, the following mitigation measure is added: "The applicant shall be responsible for compliance with the requirements of the Endangered Species Act, including obtaining an incidental take permit, if it is determined that `take' will occur."[4]
The board found the FEIR's analysis of biological resources to be adequate. It found that a protocol level study was not required due to the lack of suitable habitat on the dairy site and the results of the NDDB query. It found that mitigation measure 3.3.1 will mitigate any impact on wildlife to insignificance.
B. Discussion
Appellants argue that because County did not conduct a protocol level study following one of the three survey guideline methodologies, the record does not contain substantial evidence supporting the board's finding that the dairy will not have a substantial adverse impact on the kit fox. In other words, the field study is not substantial evidence. Implicit in this argument is the foundational assumption that CEQA compels compliance with the survey guidelines as a matter of law. We reject this argument because appellants' foundational premise is flawed. The survey guidelines are not codified in the Public Resources Code, the Fish and Game Code or the California Code of Regulations; they are not posted on the web site maintained by Fish and Game (www. dfg.ca.gov/org). Appellants did not even proffer a foundation establishing that the survey guidelines are still in effect in western Madera County. Appellants also did *729 not establish that the survey guidelines were meant to be applied in cases where a reconnaissance level study did not detect either quality natural habitat or any sign of the species. In addition, we find it notable that Fish and Game did not reference the survey guidelines when the agency responded to County's request for comment about this specific project in August 1999. Rather, Fish and Game simply stated that "a qualified biologist" may need to determine whether sensitive species were on the project site. Duncan and O'Malley, qualified biologists, did so. Moreover, Fish and Game did not comment on the DEIR and the Service did not challenge the propriety of the methodology utilized to survey for the presence of sensitive species in its comment. County was not required to conduct a protocol level study merely because CRPE requested it in its comment. CEQA does not require a lead agency to conduct every recommended test and perform all recommended research to evaluate the impacts of a proposed project. The fact that additional studies might be helpful does not mean that they are required. (CEQA Guidelines, § 15204, subd. (a); Cadiz, supra, 83 Cal.App.4th at p. 102, 99 Cal.Rptr.2d 378; Society for California Archaeology v. County of Butte (1977) 65 Cal.App.3d 832, 838-839, 135 Cal.Rptr. 679.) The agency has discretion to reject a proposal for additional testing or experimentation. (Cadiz, supra, 83 Cal.App.4th at p. 102, 99 Cal.Rptr.2d 378.) The response to CRPE's comment adequately explains why a protocol level study in conformity with the survey guidelines was not conducted; no quality natural habitat was present on the site, no sensitive species or their sign was detected during the field survey and the NDDB query showed only one kit fox sighting a decade ago and it was over eight miles south of the dairy site. For these many reasons, we conclude that appellant has not shown that CEQA required use of the survey guidelines in this instance. The biological report (which discusses field survey, the NDDB query and the conclusions Duncan reached from this data) constitutes substantial evidence supporting the determination reached in the FEIR and the finding adopted by the board that, as mitigated, the dairy will not significantly affect the kit fox.
Appellants also argue that CEQA required the County to compel Hooker to obtain an incidental take permit. Again, we disagree. CEQA neither requires a lead agency to reach a legal conclusion regarding "take" of an endangered species nor compels an agency to demand an applicant to obtain an incidental take permit from another agency. The finding that the dairy would not significantly impact biological resources did not limit the federal government's jurisdiction under the Endangered Species Act or impair its ability to enforce the provisions of this statute. It is not precluded from declaring that a "take" has occurred and requiring Hooker to obtain an incidental take permit. Mitigation measure 3.3.2 requiring Hooker to obtain an incidental take permit from the Service if the Service determines that kit fox "take" has occurred adequately ensures compliance with the provisions of the Endangered Species Act. The response to the Service's comment explains why County concluded that a "take" had not occurred and that the dairy would not adversely affect the kit fox. Disagreements on an issue do not compel invalidation of an EIR; the board was free to reject the Service's position on the "take" issue. When the evidence on an issue conflicts, the decisionmaker is "permitted to give more weight to some of the evidence and to favor the opinions and estimates of some of the experts over the others." (Greenebaum v. City of Los Angeles *730 (1984) 200 Cal.Rptr. 237, 153 Cal. App.3d 391, 413 (Greenebaum).)
Finally, appellants argue that the FEIR did not sufficiently analyze whether the dairy would have a significant adverse effect on the kit fox. Again, we disagree. Contrary to the assertion of appellants, "an EIR need not include all information available on a subject." (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 748, 22 Cal.Rptr.2d 618 (Boat Shop).) Although the biological resources section of the FEIR is brief, it contains sufficient information and analysis to enable the public to discern the analytic route the agency traveled from evidence to action. The FEIR explains that the dairy site has been in agricultural cultivation for many years and does not contain quality natural habitat. No kit fox or their sign was observed on the dairy site. The NDDB query revealed that there had only been one kit fox sighting in the vicinity since 1990 and this sighting occurred eight miles away in a large tract of native land. Thus, it is likely that kit fox do not frequent the dairy site. If kit fox do utilize the dairy site, they only forage in the alfalfa fields and use the Chowchilla Canal and field perimeters as a travel corridor. Furthermore, if kit fox do utilize the dairy site, any adverse impacts on their behavior patterns can be mitigated to insignificant for two reasons. First, the dairy will retain all but 8.2 percent of the current alfalfa fields. Second, dairy improvements will be set back 200 feet from the Chowchilla Canal, which will maintain a travel corridor for giant garter snakes, kit fox prey species and kit foxes.[5] While there were differing opinions on the issue of whether the dairy would impact the kit fox and whether the mitigation measure would be effective, the board was entitled to choose to believe one side more than the other. (Greenebaum, supra, 153 Cal. App.3d at p. 413, 200 Cal.Rptr. 237.) Appellants disagree with the analysis and conclusions reached in the FEIR. Yet, this does not render the FEIR legally insufficient. "CEQA simply requires that the public and public agencies be presented with adequate information to ensure that `decisions be informed, and therefore balanced.'" (Boat Shop, supra, 18 Cal. App.4th at p. 748, 22 Cal.Rptr.2d 618.) The information in the FEIR meets this standard.
We reject appellants' comparison of this case to Sierra Club, supra, 7 Cal.4th 1215, 32 Cal.Rptr.2d 19, 876 P.2d 505. In Sierra Club, the lead agency refused to conduct any study of the four species at issue. Here, a biologist first queried the NDDB to identify possible sensitive species that may be present on the dairy site, then conducted a field study, after which she analyzed her findings and prepared a written report. The public had sufficient information to comment on and reach an informed conclusion concerning the dairy's possible effect on biological resources, including the kit fox. Thus, Sierra Club is inapposite.
IV. Reduced Herd Alternative
A. Facts
As one of the alternatives to the proposed dairy, the EIR analyzed a reduced herd consisting of 833 milking cows, with proportionate decreases in support stock to 130 dry cows and 744 heifers. The dairy facilities would be reduced proportionally *731 to the herd size reduction. In the executive summary, the DEIR stated that the reduced-herd size alternative would offer a "roughly proportional reduction in air quality impacts and potential water quality impacts, while only partially meeting the project objective." The DEIR explained that adoption of this alternative would "reduce ozone precursor levels to less than 10 tons per year. However, methane, ammonia, hydrogen sulfide odor emissions, cumulative reactive organic gasses, cumulative PM10, and cumulative methane, ammonia, and hydrogen sulfide impacts would remain significant." Furthermore, "[t]he potential for water quality impacts would remain significant at both the project and cumulative level." "The reduced herd size alternative causes fewer air and water quality impacts than the proposed project, in proportion to the amount of reduction in such herd size, as described, and would be the environmentally superior alternative after the No Project Alternatives. However, to the extent of such herd size reduction, it does not achieve the project objective, and potential water quality impacts and air quality impacts would remain significant."
CRPE's comment letter asserted that the reduced herd alternative can meet the project objective of producing high quality raw milk.
The response to CRPE's comment states that the DEIR concluded that the no project and the reduced herd alternative both have fewer environmental impacts than the proposed dairy and are environmentally superior. However, economic feasibility is implicit in the project objective. The CUP application states that the dairy will be in the business of producing raw milk for an off-site processor. The response then states, "While a reduced herd size would unarguably reduce impacts and by doing so may meet the County's objectives, it might not achieve the applicant's business objectives of providing a livelihood for the owner/manager and his future employees. Additional information regarding project objectives and the reduced herd size alternative may be presented by the applicant at the public hearing on the [CUP]."
Foster Farms Dairy (Foster Farms) and Hillmar Cheese Company (Hillmar) submitted letters to the board urging approval of the dairy as proposed because demand for their products has increased dramatically in recent years and it is an ongoing challenge to maintain an adequate supply of high quality milk.
Greg Hooker testified at the hearing on the FEIR. He presented an economic analysis demonstrating a negative economic return on the reduced-herd size alternative. He also presented a letter from the lending institution that was financing construction of the dairy, Yosemite Farm Credit (the lender). The lender wrote that the reduced herd alternative would not be economically feasible because it would not "generate enough cash flow to service debt on the startup operation," and that it would not finance construction of the dairy if the reduced herd alternative were adopted.
The board rejected the reduced-herd size alternative because it found that it was not economically feasible and would not achieve the basic objective of the project. This finding was based on Greg Hooker's testimony, the economic analysis, the lender's letter and the letters submitted by Foster Farms and Hillmar.
B. Discussion
An EIR must "describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially *732 lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives." (CEQA Guidelines, § 15126.6, subd. (a).) It must contain "sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project." (CEQA Guidelines, § 15126.6, subd. (d).) "The statutory requirements for consideration of alternatives must be judged against a rule of reason." (Foundation for San Francisco's Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 910, 165 Cal.Rptr. 401.)
Appellants' challenge to the sufficiency of the FEIR's analysis of the reduced herd alternative is unconvincing. The FEIR explained that this alternative was environmentally superior to the proposed dairy because it offered proportionate reduction in air quality impacts and potential impacts on water quality. However, it also recognized that this alternative would not fully meet the project objective because a smaller herd would produce less milk and producing milk is the fundamental objective of the project. It also recognized that the smaller herd size may not be economically viable, although it did not make a determination on this issue. This discussion is sufficient to permit meaningful evaluation of the reduced herd alternative and comparison with the proposed dairy and thus complied with CEQA. Appellants' comparison to Raptor, supra, 27 Cal.App.4th 713, 32 Cal.Rptr.2d 704 is unconvincing. In Raptor, the agency did not even identify a reasonable range of alternative sites or project alternatives. (Id. at p. 736, 32 Cal.Rptr.2d 704.)
We reject as specious appellants' contention that the DEIR should have explicitly stated in its project objective that Hooker intended to produce milk for an off-site processor for profit; it is assumed in a capitalistic society that one is motivated by a desire for economic return on one's labor and investment. The DEIR stated that the project under consideration was a dairy. A dairy is generally understood to be a profit-based business venture.
Appellants also argue that the economic evidence the board relied on to reject the reduced-herd size alternative should have been included in the FEIR and that Hooker should not have been permitted to submit it at the hearing. We disagree. First, CEQA Guidelines section 15131 provides that economic data is not required to be included in an EIR. Second, section 21081.5 states that a finding of infeasibility shall be based "on substantial evidence in the record." Subdivision (e) of section 21167.6 provides that the record of the proceedings consists of many different types of materials, not just the EIR. It follows that presentation of economic evidence at the hearing was not improper.
Finally, the board's rejection of the reduced herd alternative is supported by substantial evidence. Economic viability is a factor that may be considered when assessing the feasibility of alternatives. (CEQA Guidelines, § 15126.6, subd. (f)(1).) In Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553 at page 575, footnote 7, 276 Cal.Rptr. 410, 801 P.2d 1161 (Goleta Valley), the high court upheld the agency's determination that an alternative site was infeasible based on an economic analysis showing that the site could not support a version of the project large enough to be economically viable. Here, the lender's letter and the economic analysis constitute substantial evidence supporting the board's finding that the reduced herd alternative is not economically feasible; elimination of all profit and loss of construction financing adequately proves that the reduced herd alternative is *733 not viable. (Ibid.; Guide to CEQA, supra, at p. 326.)
V. Related Projects' Cumulative Effect on Groundwater Quality
A. Facts
The initial discussion of water quality issues is contained in the body of the DEIR and in appendices H (a geological/hydrological report analyzing existing water conditions), I (nutrient management plan) and J (water quality impacts analysis). The most crucial mitigation measures recommended in the DEIR and the water quality impacts analysis are construction of clay-lined separation ponds and lagoons for wasteproduct storage, groundwater and soil monitoring and use of the nutrient management plan. Implementation of the nutrient management plan will balance the nitrogen and salinity levels of the soil. Dry manure will be scraped from corrals at least twice per year and spread on surrounding crop land. The irrigation system will have complete recovery capability. Yet, separation ponds and lagoons can leak and cause groundwater contamination. This contamination can be significant if nitrate levels exceed 45 milligrams per liter, "even though degradation did not extend laterally or downward to a sufficient extent to impact domestic well supplies." Furthermore, manure might be sold by the dairy for off-site usage and may be applied by the off-site user in a way that can cause excessive salt or nitrogen concentrations off-site. For these reasons, the dairy's effect on water quality is potentially significant despite mitigation.
Because the DEIR concluded that the dairy potentially could have an adverse effect on groundwater quality, CEQA required consideration of potential cumulative water quality impacts. Accordingly, the DEIR included a table of San Joaquin Valley dairy industry projections and a two and one-half page discussion of the water quality impacts associated with development of the dairy industry that could be cumulatively significant. The DEIR stated that while nitrogen contamination could "conceivably occur," this is unlikely because nitrogen loading is not necessarily cumulative due to the direction and rate of groundwater flow and recharge and interception. Furthermore, because of these same factors, only dairies within a mile or less from each other would possibly have a cumulative impact on groundwater quality. Separation between confined animal facilities and the requirements imposed by the Regional Water Quality Control Board further minimize the likelihood of cumulative water impacts. "In a small, closed, water basin with closely spaced dairies without effective mitigation measures, such a cumulative impact could occur. In a water basin the size of the San Joaquin Basin, with modern dairy facilities and operations, designed in accord with Regional Water Quality Control Board regulations, such a cumulative impact is theoretically possible, but must be deemed unlikely." For these reasons, cumulative impacts are probably limited to an increase in groundwater salinity.
CRPE's comment letter challenged the sufficiency of the DEIR's analysis of the dairy industry's potential cumulative impacts on groundwater quality and resultant diseases. It submitted, inter alia, a 1990 study entitled Dairies and their Relationship to Water Quality Problems in the Chino Basin, California (Chino Study).
The response stated that the DEIR had acknowledged that there is a limited potential for cumulative groundwater contamination due to dairy development in the San Joaquin basin. However, adverse health impacts resulting from groundwater contamination are far more likely to occur *734 at the project level than as cumulative impacts. The Chino Study is not relevant to the San Joaquin Valley because the animal unit concentration in the Chino basin was 7,260 milk cows per square mile; the projected concentration in the San Joaquin Valley is only 73 milk cows per square mile.
The board found the FEIR's cumulative impacts analysis to be adequate and CRPE's "evidence" irrelevant. It also found that the dairy may have a potentially significant impact on groundwater quality and it adopted a statement of overriding considerations. It adopted all of the mitigation measures identified in the DEIR relating to groundwater quality.
B. Discussion
Appellants contend that the FEIR's discussion of related projects' cumulative effects on groundwater quality is insufficient because it "made only conclusory statements and assertions unsupported by facts or analysis." Once again, we are not persuaded. The FEIR's discussion of the potential cumulative impacts of related dairy projects on groundwater quality satisfies CEQA.
"The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonable foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time." (CEQA Guidelines, § 15355, subd. (b).) "Cumulative impact analysis `assesses cumulative damage as a whole greater than the sum of its parts.'" (Guide to CEQA, supra, at p. 465.) "Guidelines section 15130, subdivision (b) provides that `[t]he discussion of cumulative impacts shall reflect the severity of the impacts and their likelihood of occurrence, but the discussion need not provide as great detail as is provided of the effects attributable to the project alone. The discussion should be guided by the standards of practicality and reasonableness.'... [A] good faith and reasonable disclosure of such impacts is sufficient." (Fairview, supra, 70 Cal. App.4th at p. 245, 82 Cal.Rptr.2d 436.)
The FEIR provided sufficient information for the public to evaluate the likely impacts on groundwater quality in the San Joaquin basin resulting from development of the dairy industry. The conclusions concerning salinity and nitrogen loading are supported by adequate analysis and factual detail. The DEIR explained why nitrogen loading is not likely to be a cumulative problem. The agency was not required to provide evidence supporting every fact contained in this section. The response answered CRPE's assertion that the DEIR had ignored the potential health impacts of groundwater contamination by replying that pathogens and bacteria from manure were more likely to effect the groundwater at a given project site rather than to have a synergistic effect on the groundwater supply, and by pointing out that there are no public water supplies within approximately 10 miles of the project site. It also explained why the Chino Study is not relevant to the San Joaquin Valley water basin. This discussion of cumulative impacts satisfies CEQA. (Cadiz, supra, 83 Cal.App.4th at p. 110, 99 Cal.Rptr.2d 378; Fairview, supra, 70 Cal.App.4th at pp. 245-246, 82 Cal. Rptr.2d 436; Boat Shop, supra, 18 Cal. App.4th at pp. 749-750, 22 Cal.Rptr.2d 618.) Appellants' argument to the contrary is premised on the mistaken position that the cumulative impacts section of an EIR must be as detailed as the consideration of the proposed project itself. This is incorrect. (CEQA Guidelines, § 15130, *735 subd. (b).) Recent decisions demonstrate that exhaustive analysis is not required. (Cadiz, supra, 83 Cal.App.4th at p. 110, 99 Cal.Rptr.2d 378; Fairview, supra, 70 Cal. App.4th at pp. 245-246, 82 Cal.Rptr.2d 436; Boat Shop, supra, 18 Cal.App.4th at pp. 749-750, 22 Cal.Rptr.2d 618.)
Appellants' reliance on Farm Bureau, supra, 221 Cal.App.3d 692, 270 Cal.Rptr. 650 is misplaced. The cumulative impacts section of the EIR in Farm Bureau did not contain a list of "the projects considered, no information regarding their expected impacts on groundwater resources and no analysis of the cumulative impacts. It merely assumes whatever impacts such projects may have will be mitigated by existing and planned water conservation efforts of governmental agencies in the area." (Id. at p. 729, 270 Cal.Rptr. 650.) In contrast here, the FEIR contains a summary of dairy industry projections. It sets forth the possible cumulative impacts on groundwater resources and then analyzes the likelihood of the actual occurrence of such impacts.
CONCLUSION
This rebuke, originally issued by the Supreme Court in a case where appellants had mounted a lengthy effort to halt construction of a resort hotel on property that had a long history of industrial use, also applies here: "The wisdom of approving this or any other development project, a delicate task which requires a balancing of interests, is necessarily left to the sound discretion of the local officials and their constituents who are responsible for such decisions. The law as we interpret and apply it simply requires that those decisions be informed, and therefore balanced. Concurrently, we caution that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development and advancement." (Goleta Valley, supra, 52 Cal.3d at p. 576, 276 Cal.Rptr. 410, 801 P.2d 1161.)
DISPOSITION
The motion to augment the record is granted. The order denying the petition for writ of mandate is affirmed. Costs are awarded to respondents and real parties in interest.
WE CONCUR: VARTABEDIAN, Acting P.J., and LEVY, J.
NOTES
[1] CEQA is codified at Public Resources Code section 21000 et seq. and is implemented in California Code of Regulations, title 14, section 15000 et seq. (CEQA Guidelines).
Unless otherwise specified, all statutory references are to the Public Resources Code.
[2] There is a discrepancy in the record concerning the size of the dairy site. The draft environmental report (DEIR) states that it is 1,925 acres, while the initial study states that it is 1,943 acres and the environmental checklist states that it is 1,897 acres. We have assumed that the DEIR is correct.
[3] The FEIR consists of the DEIR, comments and the responses to the comments. (CEQA Guidelines, § 15132.)
The contents of the FEIR will be set forth as necessary, post.
[4] The Service submitted a written response to the FEIR, dated June 21, 2002. However, the hearing to certify the FEIR had been held two days earlier, on June 19. The County did not respond to the Service's June 21 letter. This did not violate CEQA because the Service's June 21 letter was dated after closure of the public comment period and responses are not required to late comments. (CEQA Guidelines, § 15207.)
[5] This latter point about the travel corridor could have been better explained in the FEIR. However, EIR's are not judged on a standard of perfection but on a good faith effort at full disclosure. (Guidelines, § 15151; see, e.g., Boat Shop, supra, 18 Cal.App.4th at p. 749, 22 Cal.Rptr.2d 618.) | 01-03-2023 | 10-30-2013 |
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